Queens Bar BulletinQueens Bar BulletinQueens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500

www.qcba.org

Vol. 76 / No. 3December 2012 - January 2013

I N S I D E T H I S I S S U EFamily Law Annual Review....................1CPLR Update 2013 .................................1The Docket .............................................2Poetry Corner - Robert Sparrow ............2New Members & Necrology ...................2President’s Message ..............................3In Memoriam: Hon. Lawrence V. Cullen ..3

Editor’s Note...........................................4History Corner: Charles O’Conor ...........4Trials & Tribulations: 50 Years in FamilyCourt .......................................................5The Evolution of Elevation.....................6Marital Quiz ............................................7Photo Corner .......................................8-9

Honoring Judge CiparickPictured here (left to right): Hon. Seymour Boyers, FormerAssociate Justice of the Appellate Division, Second Department;Hon. Peter J. Kelly, Surrogate, Queens County; Hon. Robert S.Smith, Associate Judge, NewYork Court ofAppeals; Hon. JudithS. Kaye, Former Chief Judge, New York Court of Appeals;Joseph Risi, President, Queens County Bar Association; Hon.Carmen Beauchamp Ciparick, Associate Judge, NewYork Courtof Appeals; Spiros A. Tsimbinos, Program Chair; Hon. A. GailPrudenti, Chief Administrative Judge; Hon. Randall T. Eng,Presiding Justice of the Appellate Division, Second Department;Hon. Fernando Camacho, Administrative Judge, Criminal Term,Queens County; Hon. Jeremy S. Weinstein, AdministrativeJudge, Civil Term, Queens County; Hon. Sheri S. Roman,Associate Justice of the Appellate Division, Second Department.

BY DAVID H. ROSEN, ESQ.

Uniform Notice ofClaim Act

It has been my practicein these yearly Updates towork through variousareas of procedural law,alphabetically. This newAct, which will takeeffect this June, is of suf-ficient importance to betaken out of order.Tort actions against municipalities, and public

agencies of every description, share certain pro-cedural hurdles not encountered in other actions.They typically involve a condition precedent tosuit in the form of a notice of claim requirement,which typically, but not always, must be servedon the agency within 90 days of the accrual of theclaim. The notice of claim must be served direct-ly on the agency or municipality, in the mannerspecified by the specific governing notice ofclaim statute. The contents and manner of serviceof the notice of claim are usually, but not always,specified to be those set forth in GeneralMunicipal Law § 50-e. Consider, for example, apersonal injury action against the Nassau CountyBridge Authority, subject to Public AuthoritiesLaw § 666-b. What is required here is not a GML§ 50-e notice of claim, but rather

“a notice of intention to commence suchaction and of the time, when and place wherethe damages were incurred or sustained,together with a verified statement showing indetail the property alleged to have been dam-aged or destroyed and the value thereof, orthe personal injuries alleged to have beensustained and by whom, shall have been filedin the principal office of the authority withinninety days after such cause of action shallhave accrued.”

If the governmental entity involved is theTriborough Bridge and Tunnel Authority, thenotice of intention to sue must be filed within sixmonths, not 90 days.1Or consider, for another example, a personal

injury action against the Central New YorkRegional Market Authority, subject to PAL § 841.The statute first requires a GML § 50-e notice ofclaim. It then goes on to require, in addition, anotice of intention to sue, in the same language asthe Nassau County Bridge Authority.The limitations period is also subject to appar-

ently random variability. Most of the time, it is ayear-and-ninety-days from the accrual of theclaim, as set forth in, say, General Municipal Law§ 50-i. On the other hand, actions against the

CPLR Update-2012

David H. Rosen

BY MICHAEL AND DAVID DIKMAN

“DOMA”One of this year’s major decisions came

from a divided Second Circuit Court ofAppeals in WINDSOR v. U.S., declaring“DOMA”, the Defense of Marriage Act,unconstitutional. The definition of “marriage”as solely between one man and one womanwas found to violate the equal protectionclause of the U.S. Constitution. DOMA haslong been assailed for denying the same federal protections tothousands of same sexAmerican families as are available to tra-ditional man/woman marriages. The Supreme Court is expect-ed to take up this issue and of course, we will “stay tuned.”

TEMPORARYMAINTENANCEIn 2010 we reviewed the provisions of the then new DRL

§ 236B, sections 5-a & 6-a, establishing temporary mainte-nance guidelines. The N.Y.S. Law Revision Commission wasdirected to:1) Review and assess the economic consequences of divorceon parties;

2) Review the maintenance laws and their administration todetermine their impact on post marital economic dispari-ties and the laws’ effectiveness in achieving the state’sgoals; and

3) Recommend legislation deemed necessary to achievethose goals.A preliminary report to the Legislature & Governor was to

be made no later than 9 months from the effective date witha final report to be rendered by December 31, 2011. Therewas a preliminary report. But that did nothing more thanreview the provisions and history, various problems and posi-tions involved. There was no recommendation for any legis-lation. The final report date (December 31, 2011) came, wentand was extended at least 3 times. At this writing we are stillawaiting the recommendations. When this topic was dis-cussed by us, last year, we said:

“the myriad of different, relevant facts in each case, andthe application of a “reality test” (actually computing

what disposable income will be left foreach spouse upon application of the guide-lines) have convinced a number of judgesthat the temporary maintenance guidelinesdid, in fact, result in unjust or inappropriateawards, which they refused to make. Moreand more cases continue to be reported,where the judges are “deviating”, and indifferent ways and upon different analyses.The result is that although it is taking thejudges far more time to construct their

decisions, they are as disparate and unpredictable as theywere before the statute became effective. The statute hasbeen criticized inasmuch as the application of the guide-lines, based upon an automatic, mathematical calcula-tion, basically creates a shift in resources, rather than theprior goal of tiding over the more needy party.”

We commented that the cases regarding temporary mainte-nance, were very “fact intensive”, and that it will be hard tofind two cases presenting precisely the same facts, relative tothe parties’ incomes, assets, needs, ages, health, marriage dura-tion, number and ages of children, type of residence, orwhether the parties are still residing together, among others.Also, in view of the vastly varying fact patterns and the sub-stantial number of matrimonial judges making decisionsthroughout the State, we opined that the value of any oneSupreme Court decision, as a precedent, will be minimal, sincenot binding upon judges of coordinate jurisdiction. The con-clusion was that “by next year we should have some guidancefrom the Appellate Division.“ But we really don’t. The onlydecision of note came from the First Department, in KHAIRAv. KHAIRA, 93 A.D. 3d 194, 938 N.Y.S. 2d 513 (February 7,2012). In that case, the Supreme Court wound up making anaward of unallocated temporary maintenance and child sup-port plus requiring the husband to pay the mortgage on themarital residence. The Appellate Division acknowledged thatthe new law reflected a substantial change from the previouswide discretion given to the courts, with the goal being to “tideover the needy party.“ The new law created a “substantial pre-sumptive entitlement.“ The decision makes clear that the

(Continued On Page 15)

Family Law Annual Review

Michael and David Dikman

(Continued on page 15)

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 20132

If you or someone you know is having a problem with alcohol,drugs or gambling, we can help.

To learn more, contact QCBA LAC for a confidential conversation.Confidentiality is privileged and assured underSection 499 of the Judiciary Laws as amended by

Chapter 327 of the laws of 1993.

Lawyers Assistance CommitteeConfidential Helpline 718 307-7828

being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be heldat the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will bemade available to members via written notice and brochures. Questions? Please call (718) 291-4500.

PLEASE NOTE:The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as anAccredited Legal Education Provider in the State of New York.

Hon. Lawrence V. Cullen Bernard R. McConville

TH E DO C K E T . . .

NE W ME M B E R S

NE C R O L O G Y

December 2012

Tuesday, December 4 Till Death or Divorce Do Us PartWednesday, December 5 Advanced Criminal Law Series - Pt 2Tuesday, December 11 Lexis/Nexis Seminar 4:00 - 5:00 pmThursday, December 13 Holiday Party at Douglaston ManorMonday, December 24 Christmas Holiday - Office ClosedTuesday, December 25 Christmas Day - Office ClosedMonday, December 31 New Year’s Holiday - Office Closed

January 2013

Tuesday, January 1 New Year’s Day - Office ClosedMonday, January 21 Martin Luther King, Jr. Day - Office ClosedWednesday, January 30 Family Law Seminar

February 2013

Tuesday, February 12 Lincoln’s Birthday - Office ClosedMonday, February 18 President’s Day - Office ClosedWednesday, February 20 Ethics Seminar

March 2013

Monday, March 11 Condominium/Cooperative SeminarWednesday, March 13 CPLR & Evidence UpdateThursday, March 14 Cancer Screening - in front of Civil CourtWednesday, March 20 Military/Veteran’s Law SeminarFriday, March 29 Good Friday - Office Closed

April 2013

Monday, April 8 Judiciary, Past Presidents & Golden Jubilarian NightWednesday, April 10 Civil Court SeminarWednesday, April 17 Equitable Distribution Update

May 2013

Thursday, May 2 Annual Dinner & Installation of OfficersMonday, May 27 Memorial Day - Office Closed

CLE Dates to be AnnouncedElder LawInsuranceJuvenile JusticeReal PropertySupreme Court & Torts SectionWorker’s Compensation

CLE Seminar & Event Listing

David AbrahamKathleen J. AntenorcruzBrian BarnwellAveet A. BasnyatShirley BoutinLillian J. Costa

Micahel L. CserhalmiIyabo FadairoTiffany M. FemianoRobert L. GreenbergChristopher C. HoltzBright Dae-Jung Limm

Tyne R. ModicaConstantina PapageorgiouYogendra PatelPeter Withey

Class of 2013Gregory J. BrownTracy Catapano-Fox

Mona HaasGregory J. NewmanGuy R. Vitacco, Jr.

Class of 2014Chanwoo Lee

Timothy B. RountreeZenith T. Taylor

Lourdes M. VenturaClifford M. Welden

Class of 2015Karina E. Alomar

Richard Michael GutierrezRichard Harris LazarusGary Francis MiretJames R. Pieret

2012-2013Officers and Board of Managers

of the

Queens County Bar AssociationPresident - Joseph Risi

President-Elect - Joseph F. DeFeliceVice President - Joseph Carola, IIISecretary - Jennifer M. Gilroy-Ruiz

Treasurer - Paul E. Kerson

Publisher:Long Islander Newspapers, LLC,under the auspices of QueensCounty Bar Association. TheQueens Bar Bulletin is publishedmonthly from October to May.All rights reserved. Material inthis publication may not bestored or reproduced in anyform without permission.

©2012The Queens County

Bar Association.Advertising Offices:

Long Islander Newspapers,149 Main Street, Huntington,

New York (631) 427-7000

Arthur N. Terranova . . . Executive Director

Queens Bar Bulletin

EDITOR - PAUL E. KERSON

Associate Editors - Gary C. Di Leonardo, Stephen D. Fink,

Richard N. Golden, Manuel Herman, Ilene J. Reichman

“Queens Bar Bulletin”(USPS Number: 252-520) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY11743, under the auspices of the Queens County BarAssociation. Entered as periodical postage paid at thePost Office at Jamaica, New York and additional mailingoffices under the Act of Congress. Postmaster sendaddress changes to the Queens County Bar Association,90-35 148th Street, Jamaica, NY 11435.

Send letters and editorial copy to:Queens Bar Bulletin, 90-35 148th Street,Jamaica, New York 11435

Editor’s Note: Articles appearing in the QueensBar Bulletin represent the views of the respec-tive authors and do not necessarily carry theendorsement of the Association, the Board ofManagers, or the Editorial Board of theQueens Bar Bulletin.

PO E T R Y CO R N E R

WAIVERS

A waiver’s a tool,to expedite and to ease,and waivers are assorted -among them, are these:

To avoid some disputes,one can waive jurisdiction:To return to your home state,you can waive extradition.

Before a grand jury there’sa waiver of immunity,without which you could testifywith relative impunity.

If evidence is bulky,you can waive its production,and a waiver of indictment,accompanies a plea reduction.

And some flexible judgesgive the rules less adherenceand allow, for some parties,a waiver of appearance.

But the most interesting waiver -by the neophyte lawyer,who nervously arraignedhis client - his employer:

Bob Sparrow

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 2013 3

HAPPY NEW YEAR!Before looking ahead to 2013, I wish to

thank all our members and supporters forattending the Holiday Party which washeld, once again, at the Douglaston Manor.This year’s party was co-hosted by the

Brandeis Association, Hellenic LawyersAssociation, Latino Lawyers Associationof Queens County, Macon B. Allen BlackBar Association, Queens County Women’sBar Association and St. John’s Law SchoolAlumni Association of Queens County. Ithank all your members for your friendshipand support.I wish to especially thank all the hard work

of Committee Members, Jay M. Abrahams,Jeffrey Boyar, Hilary Gingold, MaureenHeitner, Mona Haas, George Nicholas andSasha and Janice, our devoted staff.Our thanks to our sponsors, Sterling

National Bank and the Law Offices of Pyrros& Serres LLP for their support of all ourAssociations. The toys which were donatedby our members and guests were presented toForestdale, Inc., a non-for-profit foster careagency with much appreciation.I am proud to be a member of the Queens

County Bar Association. Our members haveunselfishly donated their time and expertise

to provide services to our com-munities affected by HurricaneSandy. My heartfelt thanks goesto Mark Weliky and his entirestaff at QVLP for their continuedcommitment to promote and pro-vide pro bono services and repre-sentation for the less privileged.Our Association has been dili-

gently seeking to provide ourmembership with enhancedmember benefits, in addition toour Continuing Legal Educationand Programs which we offer. Ihope all of our members take the opportuni-ty to also benefit from special programs anddiscounts which we are continuouslyexpanding upon.Recently we have added special programs

affiliated with LexisNexis, Unishippers,Brooks Brothers, Esqsites123.com and WBMason.Please continue to check your emails and

visit our website @www.CQBA.org to viewupcoming events, register for CLE programsand take advantage of special discountsoffered exclusively to our members byaccessing the links provided on our website.I urge all our members to please consider

sharing your knowledge andexperience to serve as a MentorVolunteer. The Queens CountyBarAssociation offers a MentorVolunteer Program where mem-bers can call on other, moreexperienced members in an areaof law they are not familiar withor need assistance with.Our Association diligently

seeks to further develop a larg-er networking Community ofknowledgeable attorneys, whoare willing to answer legal

questions from time to time, for new attor-neys, established practitioners or law stu-dents in need of direction and guidance.The simple willingness to answer a fewquestions or give your advice truly makes adifference.Your participation in this wonderful pro-

gram would be greatly appreciated.It is not whether we can, it is whether

we will.Please use the New Year as an opportu-

nity to become actively involved in theQueens County Bar Association and con-sider donating your skills and expertise, asattorneys, in providing pro bono services to

the less privileged. Be a voice to helpshape and improve our profession.It remains Our Mission to cultivate pro-

fessional competence, development, edu-cation, cooperation, collegiality and diver-sity amongst our members. Let us all striveto assist and guide each other for the bet-terment of all.I thank all our members for your support.

I urge each of you to continue supportingyour own Specialty Bar Associations andbecome more involved in the QueensCounty Bar Association. We seek a diverseBar Association for Queens County, asdiversity is strength not a weakness. Weencourage and desire as wide a participa-tion as possible for all attorneys in Queens.I look forward to working with you in

the NewYear.Should you have any suggestions or

comments, please do not hesitate to contactme by calling the Queens County BarAssociation at (718) 291-4500 or by emailat josephrisi.esq@gmail.com.May we all enjoy and prosper in our

wonderful Profession of Law.Sincerely,

Joseph Risi, PresidentQueens County Bar Association

PR E S I D E N T ’S ME S S A G E

Joseph Risi

SEMPER FIBY HON. RUDOLPH E. GRECO, JR

My dear friend and colleague Hon.Lawrence V. Cullen, Larry to one and all,passed away on Sunday, November 25,2012, after a long and valiant battle withmyeloma. He was a belated casualty of theVietnam War where he served multipletours of duty as a wounded combat veteranof the First MarineAirWing.At Danang hewas twice exposed to Agent Orange.Larry had no acquaintances. He either

knew you or someone who knew you. If hemet you and liked you then you were oneof his legion of friends and he would doanything for you . He was a proud son ofthe Woodside Irish clan whose ranksinclude many brave Americans whoserved, sacrificed, suffered and died fortheir beloved USA.Larry was defined by his quick razor

wit; his big, kind and brave heart; his intel-ligence; his common sense; his loyalty; his

sense of humor; his endless storytelling(all mostly true) and his impeccably cus-tom tailored suits. His chambers wereimpressively decorated. In that room Iwould greet him as Cardinal Cullen. Hissilver hair and well trimmed beardenhanced his regal image even as hedevoured a bagel with gobs of extra butter.Larry was Irish and a Marine to the mar-

row of his bones. He majored in IrishStudies at Fordham and was graduatedfrom CUNY Law. He was a devoutCatholic every day in every way. He prac-ticed his faith by doing countless gooddeeds. He was never pious. He was a livingexample of the very best Irish traits: a trueleprechaun with a dash of fun loving mis-chief and “divilment”. I’ll never forget hissly grin and twinkling eyes as he passed adeadly remark or set up a funny prank.Like all Marines, Larry would never

leave anyone behind. As Secretary of theQueens County Bar Association’s

Committee on the Judiciary, Larry was thefirst to rise in defense of Queens judgesand judicial candidates. As a guardianshipjudge, Larry protected the elderly andinfirm with every ounce of his formidableresolve, humanity and legal skill. Woe toanyone who tried to exploit the unfortu-nate and helpless. They would soon findout the Marines had landed.Larrymarried late in life and found the per-

fect match in his wonderful, lovingMargaret.She was a medical doctor from Poland but atrue Marine nevertheless. She stood by hisside in every battle he waged against illnessfrom beginning to end. He loved, respectedand admired her with all his heart.Together Margaret and Larry produced

a daughter, Anya and a son, Patrick, highschool students at Dominican Academyand Xavier respectively. Larry wasdeeply proud of them and literallybeamed when he spoke of them. Happilythey embody the best traits of their par-

ents and are wellon their way tobecoming out-standing youngadults. They areboth scholar ath-letes and pos-sessed of excep-tional goodcharacter. Larry loved to watch them ver-bally spar and match wits. Larry wasblessed to have Margaret, Anya andPatrick at his side at all times and Larry’sspirit will never leave them. They werehis family and his foxhole buddies.I and all his many friends were lucky to

call Larry our friend. He will be missed butnever forgotten. I know he’s in heaven nowat the best bar enjoying a cool Tom Collinsand a Havana cigar with Neil O’Brien, TomManton, Joe Dorsa, Al Lerner and TimFlaherty. Larry’s heaven looks a lot likeKey West. And oh the stories.

Hon. Laurence V. Cullen

In Memoriam: Hon. Lawrence V. Cullen,Judge NYS Court Claims (Retired), Justice Elect NYS Supreme Court

BY KEVIN SAMPSON

Margaret, Anya, Patrick, members ofthe Cullen family, distinguished guests,and friends of Larry Cullen - we havelost a good man and I have lost a dearfriend.My name is Kevin Sampson and I

have been a friend of Lawrence V.Cullen for over thirty years. Larry wassixty-four when he passed on Sundaysurrounded by family and friends. Hisfour brothers, Jim, Kevin, Danny andFrankie were there by his side in thefinal days.Larry’s life was not an easy one but he

possessed a spirit of resilience and goodhumor that allowed him to overcome painand misfortune. He never complained. Hesuffered through personal trials thatwould have broken a lesser man.By thirteen, he had lost both of his

parents and at seventeen decided toenlist in the Marine Corps. He servedthree tours of duty in Vietnam receivingeight citations for valor including twoPurple Hearts for being wounded in

combat and the Bronze Star for heroismin the face of the enemy. Larry toldme how, as a side gunner on a helicopter(which as an aside was the positionreceiving the highest casualty incidencein the war), his helicopter was shot downand for months he was listed as Missing-In-Action and presumed dead. But hedefied the odds and survived.Once, while in his tent, he asked his

fellowMarines to lower the music so thathe could rest. They rather impolitelydeclined and, in fact, turned the musiclouder. Never one to negotiate fromweakness, Larry purchased his ownstereo system, bought multiple albums ofbag pipe music and after only a fewhours his buddies were begging for quiet.Soon, everyone was resting comfortably.He came home from the war and

bounced between jobs. He worked on thefloor of the Stock Exchange, an interna-tional moving company, and finally, atSkellig.s Delicatessen in Sunnyside. Itwas here where, I believe, he decidedthat the law was for him, for he believed

In Memoriam - Hon. Lawrence V. Cullen

(Continued on page 14)

BY HON. PETER J. KELLY

When I confided in several people thatI had been asked to speak about Larry’scareer as an attorney and judge, and thatI felt it was a daunting task, the mostcommon response I received was “Justspeak from your Heart.” That is verygood advice.The problem remains, however, as to

how you can do so when your heart isbroken.To describe Larry as an attorney and

judge is - on the one hand - a seeminglyimpossible task. What words could Ifind that would adequately expressLarry’s unique qualities and characteris-tics? It seemed similar to the task ofattempting to describe a color to a per-son who never had the ability to see.What words could possibly be adequate?On the other hand, an equally valid

thought came to mind: What, in fact,actually needs to be said?The mere mention of the name Larry

Cullen to another person invariablycauses an immediate and identical

response: a huge smile, a knowing look,and inevitably the response: “Larry,what a great guy!”Larry became an attorney later in life

and his practice was largely devoted toGuardianship, Trusts and Estates, andReal Estate.While his practice was financially

successful and Larry had a keen busi-ness mind, his primary goal as an attor-ney was to help others.His proudest achievements, and most

numerous stories, were not of his afflu-ent clients or the lucrative business dealshe closed, but of victims of injustice thathe obtained relief for.My personal favorite was of a client

he defended in a criminal action whowas accused of a misdemeanor. The solecomplaining witness was a police offi-cer. Now, everyone knows Larry was anex-marine and a “law and order” guy.But he absolutely despised liars andhypocrites and he knew the officer wasnot being 100% truthful regarding whathe had seen. His client was offered a fine

In Memoriam - Hon. Lawrence V. Cullen

(Continued on page 14)

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 20134

A lawyer without history or literature isa mechanic, a mere working mason; if hepossesses some knowledge of these, hemay venture to call himself an architect.

— Sir Walter Scott

BY STEPHEN DAVID FINK, ESQ.

It was Ralph Waldo Emerson who saidthat history is best learned through biogra-phy. The study of individuals in our pasttells us more about human emotions thanthe staid use of dates and events.So it is with the facts and circumstances

surrounding great but forgotten lawyers ofour past. These are people like Max Steuerwho defended the business owners in theTriangle Shirtwaist factory trial. In morerecent times we remember William M.Kunstler, a true gadfly of the criminal lawand well known radical attorney.However, few (if any) remember

Charles O’Conor of New York City - bestknown for the Forrest divorce trial and thedefense of Jefferson Davis.Charles O’Conor was born in (what was

then) the City of New York in 1804. Hisfather had been an active Irish rebel whocame to the United States in 1798. Charleswas admitted to the bar in 1824, andquickly became a successful attorney andprominent proponent of Catholic causes -not always popular in those days.While he rose to notoriety on a number

of cases, his most sensational matter wasthe divorce trial of Catherine Forrestfrom the then famous actor EdwinForrest in 1850. In antebellum America

divorce trials were based upon the con-flict between the autonomy of womanand the authority of men. O’Conor suedon behalf of the wife Catherine arguingher modesty, her desire for privacy, and alife away from the public eye. At thetrial, lasting more than a month, Edwintried to characterize Catherine as a prof-ligate woman who drank heavily and hadfrequent male visitors. Yet, Catherine

became a crowd pleaser by refusing to becharacterized as a victim. Her victory,upheld on appeal, gave Catherine theopportunity to capitalize on her publicvisibility. She pursued an acting careeron her own and her performances drewcrowds who had followed her trial.O’Conor won a national reputation by

winning the case and securing a liberalamount of alimony for his client. Hebecame a prominent Democrat andUnited States Attorney for the SouthernDistrict of New York from 1853 to 1854.He was opposed the Federal govern-ment’s response by force to the formationof the Confederacy. This position was notunusual in New York City which wasgenerally pro-Southern.Even as the Civil War ended, pro-

Southern Northerners opposed retaliationagainst the defeated Confederacy.However, when Jefferson Davis fledRichmond in April of 1865, there werecalls for his hanging for treason, markedby his eventual capture and such chargesbeing brought against him. Once he wascaptured, Charles O’Conor was asked tobe lead counsel to defend the case whileJefferson Davis languished in prison atFort Monroe. Through his efforts andthose of other prominent persons (such asformer President Franklin Pierce) Daviswas freed and never tried.In 1871, O’Conor also became counsel

to the State of New York for purposes ofprosecuting William M. “Boss” Tweed.He accepted no compensation for thisrole - even as he suffered a severe illness

as the case continued.O’Conor actually was a reluctant

Presidential candidate in 1872 whenHorace Greeley, the original Democraticcandidate, suddenly passed away. Hereceived 21,599 votes and even someelectoral votes.He also participated in the heavily dis-

puted Presidential election of 1876between Samuel Tilden and RutherfordHayes. In fact, Tilden (who lost the elec-tion to Hayes) wrote that O’Conor “wasthe greatest jurist among all the Englishspeaking race”.O’Conor died in Nantucket in 1884.

Today he is largely forgotten even by themembers of the New York City bar.

BY PAUL E. KERSON

The case did not settle, despite yourbest efforts. There have been severalconferences with the Court’s LawSecretary and numerous telephonecalls with the attorneys on the otherside.

The case has been marked “ready”several times, and adjourned. Thistime, it looks like jury selection is actu-ally going to happen, much to every-one’s surprise.

The cards are drawn from the wheel,and clipped to the board. You are giventhe carbonized copy of the form eachjuror filled out with the most limitedbackground information.

Ah ha! You have your I-phone. Youcan Google each prospective juror tosee what turns up. You can also lookon Linked In, Twitter, Facebook, Beboand Tagged. Why, in a few seconds,you can have more information abouteach prospective juror than any car-bonized form will ever tell you.

But should you do it?

New York City BarAssociation (NYCBA)Formal Opinion 2012-2suggests that you have anobligation to your client todo so. But the same opinionsuggests that electronicresearch about prospectivejurors is also unethical IFthe prospective juror knowselectronically or otherwisethat you have “contacted”any website where his orher name appears.

In the November-December 2012most recent issue of the New York StateBar Association Journal, Robert B.Gibson and Jesse D. Capell addressthis question in their leading article,“Researching Jurors on the Internet –Ethical Implications”.

Gibson and Capell’s Conclusion isthis:

“Pre-trial Internet research ofprospective jurors is becoming anintegral component of the trialpreparation process. Trial attor-neys would be well advised toapply this practice whenever pos-

sible because it mayincrease the likelihood ofa favorable outcome. Butbefore undertaking thisresearch, attorneys mustbe familiar with the localrules governing this prac-tice. They must alsodetermine whether jurorswill receive a notificationfrom the website if anoth-er user views their pro-files.”

It is respectfully submitted that this“Conclusion” needs a Reality Check,as follows:

1. The trial attorney does not knowwho is on the jury panel until the cardscome out of the wheel and are clippedto the board. It you whip out your I-phone and start googling, or e-mailingan off-site associate, the jurors will seeyou doing it, and thus know all about it,putting the trial attorney in violation ofNYCBA Formal Opinion 2012-2. Thisis not a good way to win, or to survivethe complaint which is sure to follow.

2. Gibson and Capell’s Conclusioncompletely ignores the First Rule of

Law that Governs All Others: He or sheis the Judge and you are not. Youabsolutely do not get to make the deci-sion as to exactly how jury selection isconducted. Each judge does it slightlydifferently from every other. YouMUST approach the Bench with youradversary in tow, and ask the Judge pre-siding at the trial whether he or she willpermit electronic research on jurors,and to what extent, and for how long,and whether in their presence or not.

3. Our tradition of Due Process andEqual Protection must survive theElectronic Age. A wise judicial rulingwill insure that both sides have anequal opportunity and equal time toelectronically research each juror.Alternatively, a wise Judge might rulethat neither side is permitted to do so.

4. Under no circumstances will ourtraditions be satisfied if one side is allwired up and the other side is not.

Gadgetry must never obscure whowe are – the custodians of the fairestjustice system devised. People stand online at Kennedy Airport to live underour Justice System. Let’s not be thegeneration that messes it up.

Googling Jurors?

Paul E. Kerson

ED I T O R ’S NO T E

HI S T O R Y CO R N E R

Learn More...For further reading see:

• http://en.wikipedia.org/wiki/Charles_O’Conor

• http://www.newadvent.org/cathen/112029a.htm

• “Infidelity,Law,and Divorce” athttp://www.librarycompany.org/women/virtue/infidelity.htm

• Also see, EdwinForrest athttp://en.wikipedia.org/wiki/Edwin_Forrest

Charles O’Conor

Charles O’ Conor

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 2013 5

BY MERYL KOVIT

Charles Dickens raised thesocial conscious in the 19thcentury to the radical idea thatchildren should have attorneysrepresent them in Court. Onehundred years later, KathrynMcDonald, the AdministrativeJudge of the New York CityFamily Court from 1986 until1995, observed, that “the richkids all had lawyers, and thepoor kids had nobody. I decidedthat I wanted to become a lawyer and rep-resent children.”1Counsel to represent children in Family

Court was one of the “landmark provi-sions”2 of the Family Court Act of 1962.Dickens didn’t live to see it, but childrenwere finally given attorneys. After 50years of Family Court, it can still beargued that the treatment of children incourt has not yet been fully resolved to thesatisfaction of Charles Dickens.Nonetheless, the journey to a more perfectcourt for children continues daily andsometimes the journey is as important asachieving the goal — whether the goal begetting counsel for children, figuring a fairfee for paying a judge, or creating a build-ing dedicated to being a Family Court.The historical journey to find a place to

properly house the Queens Family Courtcontinued in the 1960‘s. The plan to moveto the Parsons Boulevard library building,after the library vacated, was almost“junked by the City Bureau of theBudget”3 in 1967 in favor of building abrand new building built to be a FamilyCourt. There was a recommendation to“look into the feasibility of a new buildingrather than remodeling the present build-ing.” It was suggested that at a lower costthe old library could be demolished and anadequate Family Court could be construct-ed on the city owned property. The remod-eling was estimated to cost 3.9 million.4Leo Dikman, Esq. the chairman of the

family law committee of the QueensCounty Bar Association, and Judge PeterM. Horn, Queens Family Court, both dis-agreed with the proposal of the CityBureau of the Budget. Judge Horn thought“new plans will mean a new delay.” Thechairman of the family law committee,Leo Dikman, said the “remodeled build-ing would suffice for the next 15 years ...a new building will mean a delay of atleast seven years ... the family law com-mittee feels the library can and must beremodeled at a cost of less than 4 milliondollars. That is the best solution in the faceof the urgency of the problem .... we can-not wait for a new building.”5As our story continues, however, we

find that Leo Dikman, Esq., as well as theentire community to be serviced by theFamily Court, does continue to wait —except for Judge Horn, and only becausehe retired from the bench in 1968.6As the wait continued, one of those

quirks of history happened. On June 1,1969, New York State put into effect anew law requiring a separate child abusepart in each Family Court. In New YorkCity, only Manhattan was reorganized soas to comply with the new statute. It came

to be that all child abuse casesin the City Of New York werehandled by one Judge sitting inManhattan.Judge Florence Kelley, “the

head Judge of the New YorkCity Family Court,” speakingof the new law requiring a childabuse part in each FamilyCourt, acknowledged that thelaw was such that there oughtto be a child abuse part inQueens, however, she said, “Ican’t put one there” — referring

to Queens.Conditions at the Union Hall building

were too desperate to allow for child abusematters to be heard. The four judges sittingin the building shared one office whichwas 20 x 30 feet. There was one room,used as a combination nursery and cham-bers, for a woman judge sitting in Queens— women judges did not share the mainchambers because of the proximity of themen’s washroom. The lunch meal for thegirls in detention was prepared about fivefeet from their bathroom facilities. The lit-igants waited for their cases to be called incorridors without air conditioning norroom for chairs. There were confidentialfiles being kept in the public hallwaysbecause there was no room in any of theoffices. Last but not least, security was aproblem in that all adults and juveniles incustody had to be escorted through thesesame public corridors.7The historical lesson gleaned from

Judge Kelley’s tribulations of that day isthat sometimes, try that they might, it justisn’t possible for a Judge to obey the law.Mr. Dickens could not have made this up— however, given such brilliant rawmaterial there is no telling what he couldhave created with such gems. Just try toimagine the fiction Mr. Dickens couldhave tooled about Judges arduously labor-ing to obey laws --day after day— withoutthe proper resources provided to effectthose very laws. The premise sounds likea Dickens tale. We can only ponder howMr. Dickens’ fictional Judge would havereacted to such stresses in the daily grind.Judge Kelley acknowledged that the

lack of a special child abuse part inQueens has “drawbacks for a Queensattorney who must make the trip toManhattan to handle his cases.” As well,she pointed out that it was roughest on thegeneric male attorney from Queens aswhile there was no separate abuse part inthe Bronx, Kings or Richmond counties,“The trip from Queens to Lafayette streetis the hardest.” Close your eyes and try tovisualize Dickens barrister entering thesubway at Jamaica center for the longjourney to Lafayette Street. Think aboutwhat he might be wearing. Imagine theeffect of the subway on the white wig;contemplate the dangers the black robemight present on the subway trip.Judge Kelley stressed that the new child

abuse part law “wasn’t drawn up forlawyers — but for the children,” however,she had concerns that setting up a part inQueens would subject youngsters to“inhuman physical surroundings.” JudgeKelley insisted, nonetheless, that “despite

(Continued on page 13)

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One of the most prominent statutes thatcomes into play with respect to worker-related injures is section 240(1) of theLabor Law (“LL”) commonly referred toas the “Scaffold Law.”Enacted in 1921, it “descended from the

1885 ‘Act for the protection of life scaf-folding...’.”2Expanded in 1947 to include coverage

for workers who fell from elevated devicesother than scaffolds, the title of the statutewas changed from “Safe scaffoldingrequired for use of employees” to its cur-rent title “Scaffolding and other devicesfor use of employees.”3Two additional amendments brought the

statute to its present form. A 1969 amend-ment placed responsibility for safety prac-tices at construction/building sites square-ly on “all contractors and owners and theiragents”,4 while owners of one and twofamily homes “who contract for, but do notdirect or control the work” were exemptedin the final amendment in 1981.5In the three decades since, there has

been a myriad of cases seeking to interpretand clarify the succinctly worded firstparagraph of this statute. The trial andappellate courts have created a body of lawthat is constantly evolving in order to rec-oncile the often inconsistent decisions inan attempt to clarify the legislative intentby their differing definitions and the appli-cation thereof.The first paragraph of section 240(1) of

the Labor Law contains two distinct crite-ria, each of which comes into play whenan injured worker seeks recovery underthis statute. In relevant part, LL §240(1)reads as follows:

All contractors and owners and theiragents, ...[1] in the erection, demoli-tion, repairing, altering, painting,cleaning or pointing of a building orstructure [2] shall furnish or erect, orcause to be furnished or erected for thepurpose of such labor, scaffolding,hoists, stays, ladders, slings, hangers,blocks, pulleys, braces, irons, ropes,and other devices which shall be soconstructed, placed and operated as togive proper protection to a person soemployed. (Numbers in [ ] added)

The first part of this provision sets forth

and limits the specific typeof job that a worker must bedoing at the time of his orher injury. The second partpertains to the variousdevices necessary to protectthe worker from injurywhile in the performance ofhis or her duties. The list isnot exhaustive as the lan-guage includes “otherdevices” to provide “properprotection.”6It should be noted that the statute itself

makes no mention of height or elevationdifferentials. Such language and its appli-cation evolved from the courts as the use ofdevices such as “scaffolds,” “hoists” and“pulleys” refer to working above and/or thelifting or lowering of objects from onelevel to another. Similarly, there is no men-tion of “strict” or “absolute” liability whichwas also a term applied by the Court ofAppeals, as will be discussed below.Much has also been written with respect

to the nature of the job undertaken such as“cleaning” and “altering,” as well aswhether “proper protection” was providedby the employer, if, in fact, it was requiredand its absence was the proximate cause ofthe resultant accident and injury.This article will highlight the major

decisions rendered by the Court ofAppeals regarding LL §240(1) from 1991to the present plus several recent AppellateDivision and Supreme Court cases.7In Rocovich v. Consolidated Edison,

Co.,8 the Court of Appeals stated that LL§240(1) “is to be construed as liberally asmay be for the accomplishment of the pur-pose for which it was thus framed,” andreaffirmed its earlier interpretations thatthe statute “impos[es] absolute liability fora breach which has proximately caused aninjury.”9 Contributory negligence by theinjured worker is of no consequence andthe duty of an owner’s liability under thisprovision is nondelegable.10The Court proceeded to address “the

nature of those occupational hazards”11that were intended by the Legislature towarrant absolute protection and an injuryoccasioned by a different type of hazardwould not be protected. Here the Courtstated that because the statute prescribesthe use of “scaffolding” and “ladders” it is“evident” that they are “for the use or pro-tection of persons in gaining access to or

working at sites where ele-vation poses a risk.”12(Emphasis added) TheCourt further stated that inconsidering all the deviceslisted, the Legislature “con-templated hazards” involv-ing the force of gravity“because of a differencebetween the elevation levelof the required work and alower level of the materialsor load being hoisted or

secured.”13 Determining that the hazardsincurred were “special hazards” the Court“believe[d] that the Legislature has seen fitto give the worker the exceptional protec-tion that section 240(1) provides.”14In this case, Rocovich, a construction

worker, was removing and repairing theinsulated covering on recessed pipes on theroof of defendant’s building. In the centerof the recess was a trough, 18 to 36 incheswide and 12 inches deep, filled with about5 inches of hot oil. As he was about to stepacross it, plaintiff slipped and his right footand ankle became immersed in the hot oil.Based on its interpretation of the type of

hazard that warrants protection under LL§240(1), as outlined above, the Courtdeclined to apply it in plaintiff’s favor.While acknowledging that an elevationrelated risk is not always determined by theextent of the elevation differential, the Courtfound it “difficult to imagine how plaintiff’sproximity to the 12-inch trough could haveentailed an elevation-related risk whichcalled for any of the protective devices ofthe types listed in section 240(1).”15Thus, because the nature of the plain-

tiff’s job did not require any of the protec-tive devices listed in the statute it was notdeemed to comport with the “thrust” of itsintent to protect against the risks involvedin “relative differences in elevation.”16In Ross v. Curtis-Palmer Hydro-Electric

Co.,17 Ross was a welder working at thetop of a 40-50 foot shaft. In order to weld aseam at the top, a temporary platform wasinstalled and Ross had to sit at the edge ofthe platform and “extend one leg forwardagainst the top edge of the shaft and stretchforward and down with his upper torso andhead to reach the seam that needed weld-ing.”18 Ross had complained about work-ing in this contorted position and hadrequested a ladder but was told that he hadto use the platform. After approximately

2½ hours working from the platform heexperienced difficulty and pain when hetried, but failed, to straighten up. Despitesubsequent surgery he remained disabled.As in Rocovich, supra, the Court of

Appeals had to determine whether this wasa hazard contemplated by LL §240(1).Here, the Court decided that the plaintiff’sdisabling back pain was not “the kind ofharm that is typically associated with ele-vation related hazards.”19 The Court heldthat plaintiff’s argument that his injurywas “related to the effects of gravi-ty.”...”misconstrues the import of ouranalysis in Rocovich.”20Again, referring to “special hazards” the

Court emphasized that they “do not encom-pass any and all perils that may be connect-ed in some tangential way with the effectsof gravity.”21 (Emphasis in original) Theyare limited to gravity-related accidents suchas “falling from a height or being struck bya falling object that was improperly hoistedor inadequately secured.”22 The Court dis-tinguished this case because the plaintiff’sinjuries did not flow directly from the appli-cation of the force of gravity to an object orperson. Here, the “makeshift ‘scaffold’served the objective of the statute by pre-venting the plaintiff from falling down theshaft - a “device that did not malfunctionand was not defective in its design.”23 Theharm suffered by Ross was not one contem-plated by the statute and it would not beeven if the device used was inadequate,defectively designed or malfunctioned.In Rodriguez v. Margaret Tietz Center

for Nursing Care, Inc.,24 the Court ofAppeals, in a brief memorandum decision,dismissed plaintiff’s cause of action basedon LL 240(1) as follows:

Plaintiff in this case was exposed to theusual and ordinary dangers of a con-struction site, and not the extraordinaryelevation risks envisioned by LaborLaw §240(1). In placing a 120-poundbeam onto the ground from seven inch-es above his head with the assistance ofthree other co-workers, Rodriguez wasnot faced with the special elevationrisks contemplated by the statute(Citing Ross v. Curtis-Palmer Hydro-Electric Co., supra, and Rocovich v.Consolidated Edison, Co., supra).”25

In 1995, the Court of Appeals rendered

The Evolution of ElevationA quarter-century of New York’s ‘Scaffold Law’

Hon. George Heymann andHon. Carmen Beauchamp Ciparick

(Continued on page 8)

BY GEORGE J. NASHAK JR.*

Question #1 - May the courtaward child support in accor-dance with the CSSAGuidelines and order the payerspouse to pay the mortgage onthe marital home where thechild resides?

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Question #2 - Can the refusal to file ajoint income tax return be found to bemarital waste?

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Question #3 - Are siblings permitted tocommence a proceeding to seek visitationwith a whole or half brother or sister?

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Question # 4 - In question #3, if the peti-tioner is a minor, is his or her attorneyauthorized to file the petition for his orher client?

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Question #5 - Is a substantial reduction infather’s visitation with the parties’ child asubstantial change of circumstances war-ranting an increase in child support?

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Question #6 - May the court awardtemporary maintenance in accordancewith the formula set forth in DRL§236(B)(5-a) and direct the payment ofcarrying charges on the marital home?

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Question #7 - Can the trial court awardappellate counsel fees?

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Questions #8 - Is the trial court permittedto order a lump sum distributive award, ifall of the marital assets are non-liquid?

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Question #9 - When the court orders adistributive award in installments, whatrate of interest should it order?

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Question #10 - The wife obtains anannulment based upon husband’s bigamy.During their purported marriage, the hus-band satisfies a criminal judgment forfailure to pay child support to his firstwife, whom he remarried. Is the wifewho obtains the annulment entitled to bereimbursed by husband for 50% of thecriminal judgment he paid to the firstwife?

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*Editor’s Note: Mr. Nashak is a PastPresident of our Association and Vice-Chair of our Family Law Committee. Heis a member of the firm of Ramo NashakBrown & Garibaldi LLP

ANSWERS APPEAR ON PAGE 14

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 2013 7

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a decision that reaffirmed the limitations ofseeking relief under the “scaffold law” byinjured workers. Misserritti v. Mark IVConstruction Co., Inc.,26 written by JudgeCiparick, continued the theme stated inRodriguez, supra, that an injury resultingfrom hazards that are not elevation relatedconstitute “other types of hazards [that] arenot compensable under the statute even ifproximately caused by the absence of ***[a] required safety device.”27 The Courtconcluded that the wife of the decedentworker could not recover under LL§240(1) because the collapse of the firewall he was working on was the type of“ordinary and usual peril a worker is com-monly exposed to at a construction site andnot an elevation-related risk subject to thesafeguards prescribed” by the statute.28Plaintiff-wife sued on the theory that her

husband had been hired to perform mason-ry work and that his injuries occurred whena completed concrete-block fire wall col-lapsed. She alleged that the defendant hada nondelegable duty to furnish the appro-priate safety devices (i.e.: braces) to givethe decedent the proper protection duringhis employment.Once again, reciting the holdings and

reasoning in Rocovich and Ross, supra, theCourt concluded:

In this context, we construe the“braces” referred to in section 240(1)to mean those used to support elevatedwork sites not braces designed toshore up or lend support to a complet-ed structure. *** There is no showingthat the decedent was working at anelevated level at the time of this tragicaccident. Nor can it be said that thecollapse of a completed fire wall is thetype of elevation-related accident thatsection 240(1) is intended to guardagainst.”29

Relying on its holding in Misserritti,supra, the Court of Appeals also deniedrecovery pursuant to LL §240(1) in Melo v.Cosolidated Edison Co. of NY.30 In this casea steel plate was being hoisted to a verticalposition at street level to be lowered over anunfilled trench. The steel plate was attachedto the shovel part of a backhoe connected bya chain and hook at each end. Plaintiff and aco-worker were directing the covering of thetrench as the plate was being raised to a ver-tical position perpendicular to the groundwith the edge touching the ground. As theywere maneuvering the steel plate it becameunhinged and fell on plaintiff’s foot andshoulder. Here, the Court based its determi-nation on the fact that the steel plate wasresting on the ground.While the force of gravity may have

caused the steel plate to fall as it was beingmoved by an allegedly defective hoist, oneof the safety devices enumerated in thestatute, the steel plate was resting on theground or hovering slightly above theground. The steel plate was not elevatedabove the work site. Thus, it could not besaid that the statute was implicated “‘eitherbecause of a difference between the eleva-tion level of the required work and a lowerlevel or a difference between the elevationlevel where the worker is positioned andthe higher level of the materials or loadbeing hoisted or secured’.”31 (Emphasisadded)Building upon its foundation of

Rocovich, Ross, Rodriguez and Misserritti,supra, the Court of Appeals next addressedthe issue of falling objects that injured

workers in Narducci v. Manhasset BayAssociates.32 Narducci actually comprisedtwo cases consolidated in one decision. Inthe first case, Narducci was required toremove steel window frames from the thirdfloor of a fire-damaged warehouse. As hestood on a ladder working on a windowframe he saw “a large piece of glass froman adjacent window frame falling towardhim.”33 Although he turned away, the glasshit him in the face and severely cut hisright arm. He did not fall from the ladder,nor did the ladder malfunction in any way.In the second case, Caparrelli, an electri-

cian was assigned the job installing fluores-cent light fixtures into a dropped ceiling.He was standing halfway up an eight footladder to reach the ten foot ceiling when helifted the light fixture into the grid. As hewas descending the ladder to relocate itsposition in order to secure the fixture thefixture began to fall. In an attempt to stop itfrom hitting him Caparrelli reached out tohold it but it slipped cutting his right handand wrist. Like Narducci, he did not fallfrom his ladder.Both plaintiffs alleged that they should

have been provided a scaffold to performtheir jobs and, therefore, were entitled tocompensated under LL §240(1). Holdingthat absolute liability is imposed only aftera violation of the statute has been estab-lished, contingent upon the contemplatedhazards, not every worker who falls at aconstruction site and not every object thatfalls on a worker triggers the extraordinaryprotections of the statute.34The Court distinguished between falling

workers and falling objects, as each is adifferent type of hazard. While the formercreates a hazard by working in an elevatedsituation where the worker might fall andbe injured “in the absence of adequatesafety devices,” 35 the latter is “associatedwith the failure to use a different type ofsafety device (i.e.: ropes, pulleys, irons)also enumerated in the statute”36 andbecause the risks are dissimilar the hazardsof one type of accident cannot be ‘trans-ferred’ to create liability for a differenttype of accident.”37In denying Narducci’s LL §240(1) claim,

the Court found that the falling glass wasthe result of a pre-existing building condi-tion due to the fire and not the result of theabsence of any securing or hoisting deviceslisted in the statute. It described the incidentas “clearly a general hazard of the work-place”38 and not one contemplated in thestatute. Moreover, this was not deemed anelevation-related accident since Narduccidid not fall from his ladder, nor was italleged that the ladder did not functionproperly. Thus, there was no causal connec-tion between the ladder and the injury.As to plaintiff Capparelli, while his

injury could be classified as “gravity relat-ed” it was not the type envisioned by thestatute.39 Although working on a ladderapproximately 4 - 5 feet off the ground to a10 foot high ceiling there was no “hoisting”of the light fixture and no height differen-tial between him and the falling fixture. Inwhat appears to be a first for the Court,Judge Ciparick held that the exclusion ofgravity-related accidents that can be distin-guished from those intended by theLegislature “made [ ]the de minimus eleva-tion differential in this case appropriate.”40Sixteen years later, as discussed below,

Judge Ciparick would revisit the issue offalling objects and de minimus elevationdifferentials in Wilinski v. 334 East 92ndHDFC.41In the joint cases of Toefer v. LIRR and

Marvin v. Korean Air, Inc.,42 the Court ofAppeals denied recovery under LL §240(1)where the injuries were the result of fallingof flatbed trucks in the process of removing

the cargo in the first instance and alightingtherefrom in the second. The Court con-cluded that the flatbed trucks “did not pres-ent the kind of elevation-related risk thatthe statute contemplates.”43In both instances, the injured workers

were only 4 - 5 feet from the ground. TheCourt rejected their arguments that the safe-ty devices listed in the statute would haveprevented the respective accidents and,therefore, LL §240(1) was not applicable.As previously noted, LL §240(1) not

only pertains to tasks that are elevation-related, it also limits the nature of the workto be performed in order for it to be impli-cated in seeking recovery thereunder.In Joblon v. Solow44 an electrician was

directed to install a clock on the wall of anoffice building. Because there was no outletin that particular room, the plaintiff had tochop a hole through the concrete wall to theadjoining room and run electrical wiringfrom the electrical source to the hole. Toaccomplish this, the plaintiff was on a par-tially opened ladder leaning against thewall. Due to the dimensions of the room, theladder could not be completely opened.Joblon’s co-worker held the ladder securelywhile Joblon was performing his duties. Atone point, however, the co-worker left theroom and Joblon proceeded to ascend thenow unsecured ladder to complete his task.While doing so, the ladder shifted andJoblon fell backward sustaining injuries.The Court of Appeals was now confront-

ed with the “highly elusive goal of definingwith precision statutory terms within” LL§240(1) having found “that no precedent ofthis Court four-square controls the defini-tion of the term ‘altering’ as used in “thatstatute.”45In the course of explaining its holding

that Joblon’s work was more than merelystanding on a ladder to hang a clock thatwhich he performed “was a significantphysical change to the configuration orcomposition of the building.”46 The Courtrefused to limit relief only to constructionsites because it “would eliminate possiblerecovery for work performed on manystructures falling within the definition ofthat term but found off construction sites.”47Here, the plaintiff’s job was more than asimple routine activity - he made a “signifi-cant physical change to the configuration orcomposition of the building or structure.*** It is not important how the parties gen-erally characterize the injured worker’s rolebut rather what type of work the plaintiffwas performing at the time of the injury.”48Joblon is a prime example of how the

definition and interpretation of each ele-ment of LL §240(1) by the courts can yielddiffering results for the respective partiesof a lawsuit involving this statute.Almost a decade after Joblon, a worker

who sustained injury while cleaning theinterior window in an office building couldnot recover under the scaffold law becausehe failed to establish the need for any safe-ty device and, therefore, no liability couldattach to the defendant.In Broggy v. Rockefeller Group, Inc.,49

the plaintiff window washer was not asteady building employee of the defendantbut worked in various buildings bringing hisown bucket and tools to perform his duties.At the time of his accident, the plaintiff wasnot using a ladder but was standing on topof a desk to reach the top of the windowapproximately 10 feet from the floor. As hewas washing the interior side of the windowa co-worker washing the outside of the samewindow signaled that he wanted to comeinside. While lifting the bottom sash of thewindow plaintiff was standing with his leftleg on the window sill and his right foot onthe desktop. Between the desk and the win-dow was an open spaced “gallery.”

Expecting the bottom sash to remain openthe plaintiff removed his hands and it sud-denly “slammed down.” To avoid injury tohis foot, Broggy quickly moved his left legand his instep got caught in the gallery caus-ing him to fall backward onto the desktopand then the floor.In his lawsuit Broggy sought recovery

on the theory that he was using the desk asan elevated platform or scaffold whiledoing commercial cleaning. He furtheralleged that the “defendant[s] fail[ed] toprovide plaintiff with the safety devicesnecessary ‘to overcome the elevation dif-ferential of approximately four feetbetween the floor and the window so as toperform his task safely’.”50The Court of Appeals pointed out that

‘altering’ and ‘cleaning’ are discrete cate-gories of activity protected under section240(1). Notably, in Joblon, we rejected thedefendants’ argument that only alteringperformed as part of a building construc-tion job was covered by section 240(1).*** The crucial consideration is notwhether the cleaning is taking place as partof a construction, demolition or repairproject, or is incidental to another activityprotected under section 240(1); or whethera window’s exterior or interior is beingcleaned. Rather, liability turns on whethera particular window washing task createsan elevation-related risk of the kind thatthe safety devices listed in section 240(1)protect against.”51 In this case, the plaintiffcould not establish that a ladder wasrequired to perform his duties and that hecould not have successfully cleaned thewindows from the floor level using exten-sion poles with his wand and/or squeegee.Failure to show that “he stood on the deskbecause he was obliged to work at an ele-vation to wash the interior of the win-dows”52 was fatal to his claim. The plain-tiff did not, as a matter of law in this case,need protection from the effects of gravity.Query: Can a worker recover for his

injuries that were neither caused by himfalling nor from a falling object hitting him,where the injuries were a “direct conse-quence of a failure to provide adequate pro-tection against a risk arising from a physi-cally significant elevation differential?”53In Runner v. NewYork Stock Exchange,

Inc.,54 the Court of Appeals answered thisissue of first impression in the affirmative.Unlike the previous cases discussed,Runner was in the process of lowering an800 pound reel of wire down a set of fourstairs. Using a makeshift pulley Runnerwas at the top of the stairs holding on to a10-foot rope acting as a counterweightwhile the reel of wire was descending thesteps. As the reel began to pick up speed itpulled the plaintiff toward it and hejammed his hands against a metal bar towhich the rope was tied causing hisinjuries.The relevant inquiry here was whether

the harm to the plaintiff-worker floweddirectly from the application of the force ofgravity to the object even if that object didnot fall on the worker. The Court reasonedthat had Runner been at the bottom of thestairs and the reel descended onto himcausing injury he would be protected bythe statute. Therefore, since “the injury tothe plaintiff was every bit as direct a con-sequence of the descent of the reel” heshould be entitled to the same legalrecourse as if he were injured while in itspath as it rapidly descended.55Finally, the Court held that the elevation

differential was not de minimus “given theweight of the object over the course of arelatively short descent.”56In October 2011, the Court of Appeals

broke new ground in its departure from

NYC’s Scaffold Law(Continued from page 6)

(Continued on page 9)

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 2013 9

Misserritti, supra, by holding that a work-er is not categorically barred from recov-ery under LL §240(1) where he or she“sustains an injury caused by a fallingobject whose base stands at the same levelas the worker.”57 In Wilinski v. 334 East92nd HDFC, supra, Judge Ciparick,expressed how the “jurisprudence definingthe category of injuries that warrant thespecial protection of Labor Law §240(1)has evolved over the last two decades cen-tering around a core premise: that a defen-dant’s failure to provide workers with ade-quate protection from reasonably prevent-able gravity-related accidents will result inliablitiy.”58 (Emphasis added)Explaining the Court’s progression of the

cases discussed above, it was pointed outthat while rejectingMisserritti’s “categoricalexclusion” of injuries resulting from fallingobjects on the same level of the injuredworker, it “decline[d] to adopt the ‘samelevel’ rule, which ignores the nuances of anappropriate section 240(1) analysis.”59Relying on Runner, supra, the Court heldthat it is not “the precise characterization ofthe device employed” or whether it was thefall of the worker or an object falling on theworker, but whether injury was a direct con-sequence of the employer’s failure to pro-vide adequate safety devices to prevent acci-dents caused by a “physically significantelevation differential.”60Wilinski was injured during the demoli-

tion of the brick walls of a vacant ware-house. After previous demolition of thefloor and ceiling two 10-foot verticalpipes, 4 inches in diameter, remainedstanding on the ground unsecured. Theywere not scheduled to be removed at thattime. Although the plaintiff expressed hisconcerns about leaving them unsecured tohis supervisor, no measures were taken tosecure them. Wilinski, 5 feet, 6 inches tall,was standing on the ground when debrisfrom a nearby wall being torn down hit thepipes causing them to topple approximate-ly 4 feet striking and injuring him.Applying the reasoning in Runner, supra,

Wilinski was not precluded from recoverysimply because he and the pipes were on thesame level when he was struck. The harmflowed directly from the force of gravitygenerated by the pipes in their descent andthe four foot height differential was not deminimus as a result of that force.Notwithstanding that there was a “potentialcausal connection between the object[s’]inadequately regulated descent and plain-tiff’s injury”,61 there still remained an issueof fact as to whether the plaintiff’s injurywas a direct consequence of defendant’sfailure to provide adequate protection to pre-vent the pipes from falling. Thus, neitherparty was entitled to summary judgment.The Court distinguished this case from

others where summary judgment dismissalwas warranted. Where objects that fall andinjure workers are themselves the “targetof demolition” it would be “illogical” tosecure them as it would be “contrary to theobjectives of the work plan.”62 Such wasnot the case here where the removal of thepipes were not part of that phase of thedemolition project and should have beensecured.Only a month after Wilinski, the Court of

Appeals applied the same rational in Salazarv. Novalex Contracting Corp.63 in denyingrecovery to a worker injured when hestepped backward into a trench as he wasfilling it with cement. Salazar was directedto pour and spread concrete over an entirebasement floor which contained 3 to 4-footdeep trenches for pipes. He claims that

defendant should have provided a protectivedevice to cover the trenches. The Court heldthat to do so would be “illogical”, “imprac-ticable” and “contrary to the work plans inthe basement” since it was the goal to fillthese trenches with cement.64 Defendantwas entitled to summary judgment “giventhat Labor Law §240(1) should be construedwith a commonsense approach to the reali-ties of the workplace at issue.”65In Ortiz v. Varsity Holdings66 the Court

of Appeals stated that “courts must takeinto account the practical differencesbetween ‘the usual and ordinary dangers ofa construction site, and ... the extraordi-nary elevation tasks envisioned by LaborLaw §240(1)’.”67At issue here was whether Ortiz, injured

when he fell to the ground off a six-footdumpster, was performing a job that creat-ed an elevation-related risk encompassedin the scaffold law. Defendants moved forsummary judgment claiming this was notsuch a case. The plaintiff asserted that histask of filling the dumpster and rearrang-ing the content therein as it filled uprequired him to stand on the 8-inch ledgeat the top of the dumpster.The Court held that neither side was

entitled to summary judgment. Based onthe record before it, the Court “[could not]say as a matter of law that equipment ofthe kind enumerated in section 240(1) wasnot necessary to guard plaintiff from therisk of falling from the top of the dump-ster.”68 Since liability is contingent uponthe failure to use, or the adequacy of, oneof the enumerated devices, a question offact remained as to whether the task theplaintiff performed created an elevation-related risk of the kind these devices areintended to prevent.At the time of this writing, the last case

decided on this subject by the Court ofAppeals was Dahar v. Holland Ladder &Mfg. Co.69 As in Broggy, supra, the plain-tiff’s duties involved “cleaning.” In this case,the plaintiff was required to clean a 7-foothigh manufactured steel wall module priorto it being shipped to its final destination. Itwas necessary for plaintiff to stand on a lad-der to perform his task. While engaged inthis job that ladder broke and plaintiff fell tothe ground. He sought recovery under LL§240(1) asserting that he was 1) “cleaning”- one of the tasks enumerated in the statute;and 2) the wall module was a “structure.”(See definition of “structure”, supra, FN 47)The Court rejected this argument stating thatit would expand the statute’s coverage to“encompass virtually every ‘cleaning’ ofany ‘structure’ in the broadest sense of theterm” (i.e.: an employee standing on a lad-der to clean a bookshelf or to clean a lightfixture).70In the nine weeks between July 19, 2012

and September 18, 2012, five AppellateDivision decisions and two Supreme Courtdecisions were rendered with respect toissues pertaining to the application of LL§240(1).In Oakes v. Wal-Mart Real Estate

Business Trust,71 “apparently the firstextended analysis” of Wilinsky,72 theAppellate Division, Third Dept., deniedrecovery to a worker injured in a force-of-gravity accident.While working on a construction site,

Oakes had his legs crushed as he walkedbetween two steel trusses each measuring30-feet long by 5½-feet in height and 1-footwide. Every piece of the steel components inhis project contained a numbered tag thatOakes, as supervisor of the project, wasrequired to read in order to determine itsplacement in the building structure based onthe blueprints. As he was performing thistask, one of the vertically positioned trusses,standing on its 1-foot side, was struck by an

unsecured bar joist being carried by a fork-lift causing it to fall on top of him.The appellate court distinguished this

case fromWilinski noting that “[i]n light ofthe Court[ ] [of Appeals] continuedreliance upon Rodriguez in [Ortiz, supra] acase decided after both Runner andWilinski it cannot be said that an elevationdifferential posed ‘the special elevationrisks contemplated by the statute’ simplybecause the force of gravity acting on aheavy object caused severe injuries whenthe object fell.”73Here, the plaintiff was not only on the

same ground level as the truss, he wasapproximately the same height or slightlytaller. Thus, it was held that “[n]otwith-standing the substantial weight of the[10,000 pound] truss and the significantforce generated as it fell due to the force ofgravity, however, there was no elevationdifferential present here, let alone a ‘physi-cally significant elevation differential’. ***Under these circumstances, plaintiff wasexposed to ‘the usual and ordinary dangersof a construction site, and [not] the extraor-dinary elevation risks envisioned by LL§240(1)’.”74 (Emphasis in original)In Toney v. Raichoudhury,75 Toney’s

estate brought an action for wrongful death,negligence and violations of the Labor Law.Toney was killed when a falling crate thathad been unloaded from a flatbed trailertruck fell and crushed him. The crates, eachweighing approximately 2000 pounds, werefilled with glass plates and when lifted offthe truck by a crane were placed on theground with two crates upright and parallelto each other. The workers would then tiltthem toward one another so that they wouldtouch at the top where they were connectedwith braces to form an “A.” As Toney and aco-worker were tilting the two of the sixcrates that were delivered, one of them shift-ed causing both of them to fall. Neither cratewas attached to the crane at that time.Defendants moved for summary judg-

ment dismissal on the ground that thefalling crates were located at the samelevel as the work site where Toney wasstanding and this did not constitute an ele-vation-related risk under LL §240(1).Defendants further contended that unlikethe falling pipes in Wilinski relied on bythe plaintiff, the cranes did not fall from asubstantial height. The plaintiff averredthat, pursuant to Wilinski, the fact that thefalling crates and the deceased were at thesame level was irrelevant because thecrates were inadequately secured.In rejecting the defendants’ argument,

the Supreme Court found that the failure tosecure the crates before removing the cranewas a violation of the statute. With respectto the fact that the crates stood only about9 inches above the decedent’s head, thecourt held that the elevation differentialwas not de minimus considering theirweight and amount of force they werecapable of generating even over a short dis-tance. “Moreover, ‘[t]he sufficiency of anelevation differential and a fall from aheight for purposes of [liability under thescaffolding law] cannot be reduced to anumerical bright-line test or an automaticminimum/maximum quantification’.”76Cappabianca v. Skanska USA Building,

Inc.,77 was the next case decided by anappellate court which also denied recoveryto an injured worker suing under LL§240(1).At a school construction site the plaintiffwas cutting bricks with a stationary wetsaw. The saw and its stand sat on a wood-en pallet that lay on the concrete floor.Standing on an adjacent pallet of the sameheight, 4 to 12 inches from the floor, plain-tiff operated the saw with its foot petal,arm lever and cutoff switch. The pallets’

surfaces were positioned 3 to 6 inchesapart. In order to keep the blade and brickscool and to provide lubrication while cut-ting, the saw was supposed to spray wateron them which would then be directed toan attached tray. However, due to a mal-function, the water sprayed all over andonto the floor which became slippery. As aresult, the pallet on which plaintiff wasstanding shifted and he lost his footinginjuring his knee as it became caughtbetween the two pallets.In affirming dismissal of the plaintiff’s

LL §240(1) claim, the Appellate Division,First Department, disposed of this issue inone paragraph which held that his “acci-dent could not give rise to liability underthe statute because he was at most 12 inch-es above the floor and was not exposed toan elevation-related risk requiring protec-tive safety equipment.”78The specified tasks enumerated in LL

§240(1), supra, must take place in [or on] a“building” or “structure.” Although the def-inition of “structure” was set forth in Joblonv. Solow, supra [see, FN 47], what consti-tutes a “structure” requires determinationon a cases by case, fact-specific basis.On September 13, 2012, the Appellate

Division, Second Department, determinedin McCoy v. Abigail Kirsch at Tappan Hill79that, under the facts of that case, the canopyunder which a Jewish wedding ceremonywas performed, known as a “chupah”, qual-ified as a “structure” for the purposes ofseeking recovery under LL §240(1).Citing numerous instances where some

“structures” fall within the purview of thestatute’s protection and those that do not,including differently constructed weddingcanopies, the Court noted that “a structure,by implication, may include constructsthat are less substantial and perhaps moretransitory than buildings.” *** “In thisaction, the chupah consisted of variousinterconnected pipes 10-feet long and 3inches wide, secured to steel metal basessupporting an attached fabric canopy. Aladder plus various hand tools wererequired to assemble and disassemble thechupah’s constituent parts in a process thatwould take an experienced worker morethan a few minutes to complete. The chu-pah here is more akin to the things anddevices which the courts of this state haverecognized as structures than to the thingsand devices that have not been recognizedas structures.”80On the same day that McCoy was pub-

lished, the Supreme Court, NY County,also rendered a decision with respect to LL§240(1). In Britez v. Madison ParkOwner81 the plaintiff was injured when hefell off a scaffold approximately 6-feethigh. He stated that he needed the scaffoldbecause he had to do taping work at the topof a 12-foot high wall and that the onlyscaffold available was a pre-assembled onemade of wood. It had no safety railings ormesh, which, plaintiff alleges, would haveprevented him from falling backwards hadthey been there.The Supreme Court held that the plain-

tiff established prima facie entitlement topartial summary judgment on his liabilityclaim under LL §240(1). Here, the plaintiffdemonstrated that the scaffold did not pro-vide proper protection and he was notgiven any other devices to prevent himfrom falling. The defendants asserted thatthe plaintiff was the sole proximate causeof the accident as he attempted to moveforward on the scaffold, lost his balanceand stepped off the scaffold. However,defendants failed to establish that the“plaintiff had adequate safety devicesavailable; that he knew both that they wereavailable and that he was expected to use

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THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 201310

PH O T O CO R N E R

Recent Decisions From Our Highest Appellate Courts 2012October 23, 2013

Joseph Risi making the introductions. President Joseph Risi presenting Judge Ciparickwith a plaque from QCBA recognizing her years ofservice on the bench

J. Gardiner Pieper discussing civil cases from theNY Court of Appeals

Paul Shechtman speaking about criminal cases inthe NY Court of Appeals

Spiros Tsimbinos reviewing recent developments inthe US Supreme Court

Hon. A. Gail Prudenti reminiscing about her friend-ship with Hon. Ciparick

Hon. Judith S. Kaye paying tribute to JudgeCiparick and time on the bench

Spiros Tsimbinos, Hon. Judith Kaye, Hon. CarmenCiparick and Arthur Terranova

Hon. Robert S. Smith talking about times on thebench with Judge Ciparick

Photos by Walter Karling

Peter Lane, President-Catholic Lawyers Guild, Donna Furey, President-QueensWomen’s BarAssn,Michael Hartofilis, 1st Vice-President-Hellenic Lawyers Assn, Hon. Bernice Siegel, Chairperson-Brandeis Assn, Joseph Risi, President-QCBA, Hon. Carmen Beauchamp Ciparick, Associate Judge,New York Court of Appeals, Hon. Randall Eng, Presiding Justice of the Appellate Division, SecondDepartment, Spiros Tsimbinos, Program Chair and Gary Miret, Treasurer-Latino Lawyers Assn ofQueens County

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 2013 11

PH O T O CO R N E R

Recent Decisions From Our Highest Appellate Courts 2012October 23, 2013

Hon. Carmen Beauchamp Ciparick, SpirosTsimbinos, Joseph Risi and Hon. Judith Kaye

Hon. Randall Eng discussing his memories of JudgeCiparick

Hon. Sy Boyers, Hon. Robert Smith, Hon. JeremyWeinstein, Larry Litwack, Jim Pieret, Ed Rosenthal,Hon. Peter Kelly and Jay Abrahams

Hon. Jeremy Weinstein, Hon. Bernice Siegal, NedaMelamed, Hon. Carmen Beauchamp Ciparick, Hon.Sheri Roman, Hon. Peter Kelly and Hon. SeymourBoyers

Bernie Vishnick, Tom Principe, Hon. Randy Eng,Chanwoo Lee and Hon. Morton Povman

Hon. Carol Stokinger, Spiros Tsimbinos, Hon. JudithKaye and Hon. Carmen Ciparick

Photos by Walter Karling

Hon. Allen Beldock, Chanwoo Lee, Emilio Gonzalezand Tom Graham in background

Hon. Carmen Beauchamp Ciparick thanking QCBAand everyone who are celebrating her retirement

THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 201312

them; [and] that he chose for no good rea-son not to do so.”82On September 14, 2012, the Appellate

Division, Second Department, affirmed thedismissal of the plaintiff’s LL §240(1) claimin Rodriguez v. D&S Builders, LLC 83 asplaintiff failed to raise a triable issue of fact.Defendants “established their prima facieentitlement to [summary] judgment [of dis-missal] as a matter of law by demonstratingthat the plaintiff’s decedent was not exposedto an elevation related hazard inasmuch as,at the time the decedent was struck by a bun-dle of forms, the forms were not being hoist-ed or secured, and the decedent was workingon a flatbed truck at the same level as thebundle of forms (citing, inter alia, Toefler v.LIRR, supra, and Narducci v. ManhassetBay Assoc., supra).”84In Rivera v. Fairway Equities LLC,85

plaintiff was injured at a construction sitewhen a metal hamper filled with sand fellon him after being lifted by a forklift off aflatbed truck. Plaintiff and two co-workerswere instructed by their supervisor to holda bag while sand was poured into it. Whenthe sand would not pour out of the hamper,the operator of the forklift tried to shakethe hamper by using a lever of the forkliftwhich, allegedly, caused the hamper to tiltforward and fall on the plaintiff. Althoughthe weight of the hamper was not estab-lished, it was 3 to 4 feet tall and its bottomwas approximately 3 to 4 feet off theground while held in the air by the forklift.Plaintiff was employed by non-partyBolinet Construction, a sub-contractorhired to erect the building’s cinder blockwalls. The operator of the forklift wasemployed by Miron Building Suppy LLCwho supplied and delivered constructionmaterials to the jobsite.Plaintiff moved for partial summary

judgment against Miron under LL§240(1). Miron contends that “the fall ofthe hamper from the forklift simply did notinvolve a fall from a height sufficient towarrant the special protections providedunder Labor Law §240(1).”86The court held that “in light of the

heavy weight of the sand-filled hamper,the obvious force it generated in the threeto four foot fall from the forks of the fork-lift, and the absence of any brace or otherLabor Law §240 device securing the ham-per to the forklift, plaintiff has demon-strated, as a matter of law, that Labor Law§240(1) was violated (citations omitted).In opposition, Miron has failed to demon-strate the existence of a factual issue withrespect to whether section 240(1) was vio-lated. This finding, however, does not endthe inquiry, as Miron also asserts that itmay not be held liable because it was notan owner, contractor or agent under sec-tion 240(1).”87As to this final point, the Court found

that “[t]he absence of proof of a direct con-tractual connection with the owner or gen-eral contractor weighs against finding thatMiron was delegated any authority by theowner or general contractor.” Thus, plain-tiff’s motion for partial summary judgmentwas denied.Finally, on September 18, 2012, the

Appellate Division, First Department, inFabrizi v. 1095 Ave. of the Ams., LLC,88addressed, in a concurring opinion, the ele-ment of forseeability in all LL §240(1)cases as “an issue whose discussion ... islong overdue.”89Plaintiff, an electrician, was hired to

overhaul a building’s electrical systemwhich required him to run a galvanizedsteel conduit up through the building’s

floors. The conduit on each floor met andabutted the conduit from the floors belowand above and held together by compres-sion couplings. On each floor, the conduitrose several feet and was connected andattached to a “pencil box” by a compressionconnector. As plaintiff was relocating a“pencil box”, the conduit above where the“pencil box” had been was still attached toa compression coupling from the floorabove. While drilling new holes for the“pencil box’s” new location the conduit fellfrom its coupling above falling on top ofplaintiff’s hand causing injury. Prior to theaccident, plaintiff had requested screw cou-plings to hold the conduits in place duringthis task which were never provided.While agreeing with the majority in

denying plaintiff’s motion for summaryjudgment because there was an issue offact as to whether a protective device wasrequired for plaintiff to safely perform hisduties and whether the defendant failed toprovide such device, the concurring opin-ion focused on the aspect of foreseeabilityin all actions under the scaffold law.

Absent a foreseeability requirement,then, we leave owners and contractorswith no reasonable way to determinewhen the statute applies and thereforewhen they are required to provide thesafety devices enumerated therein.After all, an accident cannot triggerthe extraordinary protections of LaborLaw §240(1) merely because it isgravity related (citation omitted).Otherwise, virtually every accidentwould fall within the purview of LaborLaw §240(1), and defendants wouldnever be able to forecast when safetydevices are required.*** [I]t is beyondcavil that in cases pursuant to LaborLaw §240(1) and, more particularly, asis the case here, cases involving injuryby virtue of a falling object, the dis-positive issue for purposes of thestatute’s applicability, is not as arguedby defendants, whether an object fallsfrom a permanent structure or whetherit was at the time of injury the objectwas being hoisted or secured. Insteadthe pertinent and indeed dispositiveinquiry is whether it was reasonablyforeseeable at the outset that the taskassigned to a worker exposed him/herto a gravity-related hazard, so thathe/she should have been provided withone or more of the safety devicesrequired by the statute.90

Whether future decisions by the trial andappellate courts will incorporate the ele-ment of foreseeability remains to be seen,for, as the court noted it “remains a pointof contention in our very own depart-ment.”91

CONCLUSIONThus, we end where we began: Labor

Law §240(1) has been and continues to bea statute that will yield differences ofopinions between the courts at all levelsregarding the nature of a worker’s tasksthat fall within the statute; the devices, ifany, to be provided and used to protect theworker; the nature and degree of the ele-vation and height differentials, vis a visthe worker and the distance he or she fallsor that which an object falls causinginjury to the worker; and, now, whetherforeseeability must be an element to beconsidered.In all actions predicated on LL §240(1),

it is incumbent upon the courts to makeevery effort to ensure that the “ultimateresponsibility” to safely protect the work-force remains where it belongs, with theowners and contractors of the construction

sites, as the Legislature intended.92Barring further clarity of the statute by

legislative amendment, the courts willcontinue to confront the “highly elusivegoal of defining with precision the statu-tory terms”93 of the ever-evolving“Scaffold Law.”

1 Hon. George M.Heymann is a formerJudge of the N.Y.C. Housing Court and isOf Counsel to Finz & Finz, P.C.This article is dedicated to retiring

Court of Appeals Judge CarmenBeauchamp Ciparick for her major contri-butions to this body of law.

2 Temkin, New York’s Labor Law Section240: Has It Been Narrowed Or ExpandedBy The Courts Beyond The LegislativeIntent?, 44 NYL Sch Rev 45 (2000), n.313 Id. n.38; 42; LL§240(1)4 See, Rocovich v. Consolidated Edison Co,78 NY2d 509, 513 (1991) [the legislativepurpose behind this enactment is to protect“workers by placing ‘ultimate responsibilityfor safety practices at building constructionjobs where such responsibility actuallybelongs, on the owner and general contrac-tor’ ( ), instead of on workers, who ‘arescarcely in a position to protect themselvesfrom accident’”]5 Temkin, supra, n.47. Although not rele-vant to this article, the amendment furtherexempted architects and professional engi-neers “who do not direct or control the workfor activities other than planning anddesign.” LL§240(1)6 LL §240(1), supra [FN3]7 For additional comments on this subject,see NY PJI - Civil, Vol. 1B, §2:217 [InjuredEmployee - Action Under Statute ImposingAbsolute Liability], pp 425 - 4898 Rocovich v. Consolidated Edison, Co.,supra [FN 4]9 Id. at 513; In Blake v. NeighborhoodHousing Services of NYC, 1 NY3d 280(2003) the Court of Appeals noted that thewords strict or absolute liability did not appearin the current statute or its predecessors. It wasthe Court that began to use that terminology in1923 and its context here is different from itsuse elsewhere. Under these circumstancesthere must be a violation of the statute (i.e.:failure to provide protective devices) and thatsaid violation was a contributing or proximatecause for the worker’s injury.10 Id.11 Id.12 Id. at 51413 Id.14 Id.15 Id. at 514-51516 Id. at 51517 Ross v. Curtis-Palmer Hydro-ElectricCo., 81 NY2d 494 (1993)18 Id. at 49819 Id. at 50020 Id.21 Id. at 50122 Id.23 Id.24 Rodriguez v. Margaret Tietz Center forNursing Care, Inc., 84 NY2d 841 (1994)25 Id. at 843-84426 Misserritti v. Mark IV Construction Co.,86 NY2d 487 (1995)27 Id. at 49028 Id at 48829 Id. at 49130 Melo v. Consolidated Edison Co. of NY,92 NY2d 909 (1998)31 Id. at 911-91232 Narducci v. Manhasset Bay Associates,96 NY2d 259 (2001)33 Id. at 26634 Id. at 26735 Id.36 Id.37 Id.38 Id.39 Id. at 27040 Id. However, in Quattrocci v. F.J. SciameConstruction Corp., 11 NY3d 757, 758-759,the plaintiff was struck and injured byfalling planks that were part of a makeshiftplatform used to facilitate the installation of

an air conditioner over a doorway. There,the Court of Appeals held that the fallingobject liability under LL §240(1) is not lim-ited to cases in which the falling object is inthe process of being hoisted or secured.41 Wilinski v. 334 East 92nd HDFC, 18NY3d 1 (2011)42 Toefer v. LIRR, 4 NY3d 399 (2005)43 Id. at 40844 Joblon v. Solow, 91 NY2d 457 (1998)45 Id. at 460 - 46146 Id. at 46447 Id. The Court defined “structure” for thepurposes of LL §240(1) as “any productionor piece of work artificially built up or com-posed of parts joined together in definitemanner.”48 Id. at 46549 Broggy v. Rockefeller Group, Inc., 8NY3d 675 (2007)50 Id. at 67951 Id. at 68152 Id.53 Runner v. NY Stock Exchange, Inc., 13NY3d 599, 603 (2009)54 Id.55 Id. at 60456 Id. at 60557 Wilinski v. 334 East 92nd HDFC, supraat 558 Id. at 759 Id. at 960 Id. at 1061 Id.62 Id. at 1163 Salazar v. Novalex Contracting Corp., 18NY3d 134 (2011)64 Id. at 14065 Id.66 Ortiz v. Varsity Holdings, 18 NY3d 335(2011)67 Id. at 33968 Id.69 Dahar v. Holland Ladder & Mfg. Co., 18NY3d 521 (2012)70 Id. at 52671 Oakes v. Wal-Mart Real Estate BusinessTrust, 948 NYS2d 748, 2012 NY SlipOp05694 (A.D., 3rd Dept.)72 Caher, Parsing Recent Precedent, PanelDeclines to Apply Gravity Liability, NYLJ,7/20/1273 Oakes, supra at 75574 Id.75 Toney v. Raichoudhury, NYLJ, 7/31/12(Sup. Ct., Kings County)76 Id.77 Cappabianca v. Skanska USA Building,Inc., 950 NYS2d 35 (A.D., 1st Dept.)78 Id. at 4179 McCoy v. Abigail Kirsch at Tappan Hill,2012 NY SlipOp 0612880 Id.81 Britez v. Madison Park Owner, NYLJ,9/13/1282 Id.83 Rodriguez v.D&S Builders, LLC, NYLJ,9/14/12, 26:184 Id.85 Rivera v. Fairway Equities LLC, NYLJ,9/18/12. Fairway and several other defen-dants did not appear in this action anddefault was taken against them in an orderdated June 1, 2009.86 Id.87 Id.88 Fabrizi v. 1095 Ave. of the Ams., LLC,2012 NY Slip Op 06182 (A.D., 1st Dept.)89 Id.90 Id.91 Id. See, Letters to the Editor,Foreseeability and Labor Law §240(1) byDavid H. Perecman, Chair of the Labor LawCommittee of the NYS Trial LawyersAssociation, (NYLJ, 9/27/12, p.6, col.4), inwhich he states his opposition to the inclu-sion of the element of foreseeability inLabor Law §240(1) cases [”...the impositionof a foreseeability requirement runs counterto and will serve to defeat the guiding prin-ciples behind §240(1). *** [T]o actuallygraft on to the statute a concept like what isreasonably foreseeable would eviscerate thestatute and create havoc.”]92 Rocovich v. Consolidated Edison Co.,supra at 51393 Joblon v. Solow, supra at 460 - 461

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the surroundings, the Queens courthouseis “one of my best operations.”8 She didnot provide an explanation as to whyQueens was best nor how the childreninvolved in other proceedings could besubject to the “inhuman physical sur-roundings.”9As a result of the new law and the pub-

licity surrounding the law, Judge Kelleyreported that there had been an “outpour-ing” of child abuse cases. She estimatedthere were about five times more casesreported in 1969 than in 1968 the yearprior to the act.10There were 111 child abuse petitions

filed in July of 1969 — one month afterthe law went into effect— she could notcompare to July, 1968, because prior tothe new law no separate records were keptfor abuse cases. What was known, howev-er, was that the Bureau of Child WelfareRegistry, the division of the SocialServices Department which handled childabuse complaints, reported that 78 com-plaints were reported in July 1968 —compared with 184 complaints in July1969. Judge Kelley said of these numbers“it scares us because it means we’re stillonly hitting a few of them ... It meansthere are an awful lot of people abusingchildren ... the 111 doesn’t represent thenumber of children abused, just those whoget to a responsible person.”11In order to give some perspective to the

numbers of child abuse filings in 1968-69,consider that in 2007, The New YorkTimes reported that Child ProtectiveServices (CPS) investigated more thanthree million cases of suspected childabuse.12Records are now kept better, due to the

1974 child abuse prevention and treat-ment act, a federal law designed toencourage more thorough and accuratereporting and record keeping in childabuse cases. CPS offices now exist inevery county in New York State, paid forin part with federal funds.13Researchers in 2007 investigated the

records of 595 children nationwide, ages4-8. There were 164 children in the studythat had families that had been investigat-ed. The study considered factors such associal support, family functioning, pover-ty, caregiver education and depressivesymptoms, and child anxiety, depressionand aggressive behavior. The researcherswere not able to find any differences in theinvestigated families versus the non-

investigated in any of these factors. Theone exception was that maternal depres-sive symptoms were worse in householdsthat were visited.14The lead author of the study, Dr.

Kristine A. Campbell, a professor of pedi-atrics at the University of Utah said “as apediatrician... I need them. But we have tolook at other systems that can really createa safety net for these children.” Dr.Campbell said “I don’t believe CPS hasoutlived its usefulness, ... The problem isthat someone needs to continue workingwith these families ... CPS deals withacute issues. We don’t know how to dealwith what remains.” Dr. Campbell’s studyappeared in the October, 2007, issue of theArchives of Pediatrics and AdolescentMedicine.15The new law in 1969 which mandated

the special abuse part, also expanded thepeople who might originate child abuseproceedings to include doctors, nurses andother hospital personnel as well as welfareworkers and teachers. It also added to theold definition of an abused child. Prior to1969, an abused child was a child under16 who had serious physical or mentalinjury inflicted upon him by other thanaccidental means. The 1969 law heraldeda new era in the child abuse field as theabused child was now also a youngsterunder 16 “who is in the care or custody ofa parent or other persons who has beenadjudicated a narcotic addict.” 16

Judge Kelley called the expansion ofpersons who report child abuse cases “oneof the best parts of the law.” She also saidthat “since the new act, judges have thetendency to remove a child from the homewhere abuse is suspected quickly ... youdo the preventive thing first.”17Judge Florence Kelley was reported as

being obviously pleased with the newmethod for handling child abuse cases.She was quoted as stating “Wouldn’t it bewonderful if all cases were handled likethese?”18 After 50 years of trials and tribu-lations in the many child abuse parts thatcame to be in the Family Court, there arestill a lot of people pondering the answerto this question.As our story moves on, the seventies

continued and with it the modernwomen’s rights movement. Title IX of theeducation amendments of 1972 wassigned into law by President Richard M.Nixon on June 23, 1972.19 The new lawprovided that “no person in the UnitedStates shall, on the basis of sex, beexcluded from participation in, be deniedthe benefits of, or be subjected to dis-crimination under any educational pro-gram or activity receiving federal finan-cial assistance.”A few days later, on June 28, 1972, The

NewYork Times reported in the metropol-itan briefs column that Mayor JohnLindsay had officially opened the “new”Queens Family Court, housed at 89thAvenue and Parsons Boulevard — in abuilding formerly occupied by the QueensBorough Public Library, which had vacat-ed the building back in 1966 — and theMayor told the Judges attending the cere-monies that he was awaiting a report froma study commission on how much their$31,750.00 salaries should be raised.20The girls’ ascent onto school playing

fields, including school tennis courtscommenced changes that would be seenthereafter in all the other courts — includ-ing the Family Court. As women arrivedas regular players in the operation of theFamily Court, they found institutional-ized laws such as the 1969 child abuselaw. It was a law that called for more andmore state intervention into the life of thefamily. Women became accepted aslawyers and judges and as such becamethe state interveners into the private lifeof the family.The changes which would result, from

the changes Mr. Dickens proposed, wereunforeseen. Family Court is now writingthe sequel to Charles Dickens, case bycase, as to how we should be respondingto these further changes in the way inwhich government may pierce the veil ofthe family.The Family Court also continues to

wrestle, on a daily basis, with the questionof what is a family. Many child supportand child custody laws have had to bewritten, rewritten and reinterpreted toaccommodate the very modern game ofmusical chairs of consecutive and evenconcurrent sexual partners we now acceptas a manner by which a new generation isbeing born. Now if a man becomes afather to two children in the same monthand year by way of sexual relationshipswith two different women, contemporane-ously, we address protecting the childrenby determining child support orders andseating at the Thanksgiving table by waysof custody orders. This may or may not bethe kind of protection of children thatDickens was seeking. It is too late to askhim. We can, however, ask ourselves, Is it“wonderful” that we have child supportlaws to help us sort out how to finance thechildren of the first, second or even thirdrelationship? Is it “wonderful” to haveCustody laws to help us determine wherethe kids should eat Thanksgiving dinner?And, of course, the final jeopardy ques-tion, first posed by Judge Kelley,“Wouldn’t it be wonderful if all caseswere handled like these?”21The study of family history has shown

that family systems are flexible, cultural-

ly diverse and adaptive to ecological andeconomical conditions — as well it canbe argued that the 50 year history of thefamily court also shows us that theFamily Court has also shown itself, timeand time again, to be flexible, culturallydiverse and adaptive to ecological andeconomical conditions — after some tri-als and tribulations.22 The laws that cameto be in the Family Court have changedthe family more than Dickens could fore-see, and definitely much more than theany possible effect of the cancellation ofFather Knows Best.

Next: A Family Court Super Star!

Meryl Kovit regularly practices before theFamily Court. She wants to thank BrianaHart and Julia Gonikman, Stony BrookUniversity students, for their help inresearching this article.

1 Pace, Eric,” Kathryn Mcdonald, 82,Family Court Judge and Advocate forChildren, Obituary,” May 17, 2000, atwww.nytimes.com/2000, October 6, 2012.2 Sobie, Merrill. The Family Court A ShortHistory, March 2003, http://www.courts.state.ny.us/history/family3 Taylor, Frances, “Plans to remodel libraryfor court may be killed”, Long Island DailyPress 5-28-1967, page 1.4 id.5 id.6 id.7 Ferguson, Tina, “Queens Will Have toWait for Child Abuse Court”, Long IslandPress, Sunday August 31, 1969, page one.8 id.9 id10 id.11 id.12 Bakalar, Nicholas, “Child Abuse Investi-gations Didn’t Reduce Risk, a Study Finds,”The New York Times, October 11, 2012,www.nytimes.com 10-27-2012.13 id.14 id.15 Bakalar,Nicholas, “Child Abuse Investi-gations Didn’t Reduce Risk, A Study Finds”The New York Times, October 11, 2010, atwww.nytimes.com/2010; October 27, 2012.16 id.17 Supra, Ferguson18 Supra, Ferguson19 Greenhouse, Linda, “The Court at theOlympics”, The New York Times, August 8,2012, at http://nytimes.com, 11-20-12.20 Mayor Opens New Queens Court, TheNew York Times, June 28, 1972http://nytimes.com; November 20, 2012.21 Supra, Ferguson. Quoting Judge FlorenceKelley, 1968.22 Van Den Berghe, Pierre, (1979)”humanfamily systems: an evolutionary view.”Elevier North Holland, Inc. as quoted inHistory of the family, at http://en.wiki-pedia.org/wiki/history of the family

Fifty Years ofFamily Court(Continued from page 5)

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THE QUEENS BAR BULLETIN – DECEMBER 2012 - JANUARY 201314

that if he could convince people that hisrice pudding was any good then he couldconvince people of anything!Larry attended Fordham University, then

law school at City University of New Yorkand was admitted to the bar in 1991. Soonafterward, as his Uncle John was not feel-ing well and needed assistance at his home,Larry called me and asked me to go withhim and meet the female doctor interview-ing for the position. In February, 1994,Larry married that lovely woman. It did notescape me that Larry never called again togo with him to visit his Uncle John.Margaret Cullen was the love of his life

and fulfilled all his dreams. As his nephewFrank so eloquently said last night, “It washer devotion to him that allowed Larry tobe so devoted to us.“ Larry and Margaretwere together for eighteen years and wereblessed with two children. First, Anyaappeared on the scene and a couple ofyears later, Patrick came along. Often, andas recently as last Tuesday, he told mehow proud he was of you both - your intel-ligence and independence, your ability todeal with adversity, your desire to remainaltar servers, and the kindness and loveyou show your mother. You were alwaysin his heart. As you would think, he hadhigh expectations for the both of you andhe was so very proud of how frequentlyyou exceeded those high expectations.

Larry was a man of immense faith .and aleader here at St. Andrew’s parish. He wasgenerous with his time and talent, attendedweekly Mass and assisted the parishschool. He was instrumental in bringingthe Knights of the Holy Sepulchre to theparish and attained the rank of KnightGrand Cross, the highest rank attainable bya lay person. The Knights are responsiblefor the building of schools and hospitalsand supporting the Church in the HolyLand. Being a member was part of who hewas, a lover of history with practical bene-fits to those in need.Larry’s life was the fulfillment of the

American dream. He knew what it was liketo live at the Flushing YMCA and, con-versely, to design and own a lovely Tudorhome on the other side of Flushing. He hada marvelous mind and a great vocabularyand, on his worst day, could finish the NYTimes crossword puzzle. Larry was a manwith opinions who would speak his mind.He was a loving man who had a passion forlife. He loved his Roman Catholic religion,his Irish heritage, his Marine Corps. Heloved being a man of the law. And aboveall, he loved his beautiful wife and caringchildren. As Anya reminded me, Larrywould never say “good bye” but wouldalways say “so long.” He was loved andcherished and will be sorely missed.To my friend Lawrence:May the road rise to meet you,May the wind be always at your back,May the sun shine warm upon your face,And the rain fall softly upon your fieldsAnd until we meet again,MayGod hold you in the palm of his hand.

Eulogy by KevinSampson(Continued from page 3) of about $150.00 which the client was

inclined to accept. Larry counseled theclient to reject the offer and insist on atrial. When the client protested that, ifthey were unsuccessful, the fine wouldbe greater and that he could not affordit, Larry responded “Don’t worry, ifsomehow we lose, I’ll pay it.” When Iasked Larry what he would have doneif jail time had resulted he broke into alaugh and said “Yeah ....that would’vebeen a problem.” But he immediatelyturned serious and said “But I knewthe guy was lying.”Ultimately his client was acquitted,

Larry got his records expunged and allwas fine. But to me, that incident wasindicative of how Larry practiced lawand lived his life. Trust and Honestywere the hallmarks of his career.It was not by accident that Larry was

continuously appointed as a Guardian-ad-Litem, Guardian, Special MilitaryAttorney and Court Examiner. Theseare roles that require vigilant represen-tation of persons incapable of protect-ing their own interests, or as oversightof counsel or others who were - sup-posedly- fulfilling this role.Larry’s background and life experi-

ences uniquely suited him for theseroles. Working from the time he was13, in different jobs with widely vari-ous ranges of responsibilities, enabledLarry to gain the trust of clients andwards who were victims of varioussocietal ills and, as a result, were natu-rally hesitant of others. Yet, he wasalso able to easily navigate the hallsand offices of the city’s most presti-gious law firms and turn those attor-neys, even if first adversaries, intofriends.That was just the way the world

worked for Larry: His common senseapproach to problems, his ability totreat everyone equally, and his practi-cal knowledge of many fields enabledhim to achieve solutions that servedhis clients and other counsel well. Hisdecency, forthrighteousness and goodnatured persona struck a chord ineveryone.He also viewed his time as a mem-

ber of the Queens County Bar’sJudiciary Committee as a stellar partof his career. Larry saw his role as adefender of candidates from unwar-ranted attacks; especially those com-ing from people from “outside ofQueens.” Many judges sitting heretoday owe Larry a huge debt of grati-tude for his efforts in spearheading thedefense of their judicial qualificationswhich were, in fact, as Larry saw it,simply smokescreens for personalbiases or grievances of particular indi-viduals.Yet, regardless of all of his successes

as an attorney, Larry was BORN to be ajudge. Apart from time spent withMargaret, Anya and Patrick, Larry washappiest when he was at the courthouseutilizing his talents in the GuardianshipPart.A more perfect match of a person’s

talents and temperament with a job’srequirements would be impossible tofind. He could disarm the most vexa-tious litigant or attorney with hischarm; he could relate any strange fac-tual circumstance of a case to a similar

incident from his experience ....andthen personalize the matter for the liti-gants; he was obvious in his concernfor the welfare of the parties in thematters before him; and he wasextraordinary in his ability to perceivemalfeasance or neglect and wasunceasingly vigilant in protecting theinterests of incapacitated individuals.He was also an exceptionally hard

worker, someone who never failed toput every ounce of effort he couldmuster into resolving the matters thatappeared before him. And, as is sooften the case, when you lead byexample you are - as he oftenacknowledged to me - blessed in hav-ing a chambers and court room staffthat shared his work ethic.One of Larry’s permanent, but little

known, contributions as a judge wasas an advocate for the creation of theVeteran’s Court. Larry worked tire-lessly with Judge Lippman and otheradministrator to ensure this visionbecame a reality. True to form, whenthe announcement of the creation ofthe court was to be made and Larry,along with others who were instru-mental in seeing this dream come tofruition, were given invitations tospeak at a ceremony, he declined to bea headliner.Instead, he opted to send a heartfelt

letter to Judge Lippman, thanking himfor helping ensure that veterans who hadserved our country and subsequentlybecame involved in the legal system dueto the stresses they encountered,received help and treatment for theiremotional and physical disabilities withthe dignity they deserve.And, whether you are a clerk, court

attorney, court reporter, court officer,judge or janitor, I can safely say youwill NEVER, EVER, have a colleagueas kind, as caring, or as genuine asLarry Cullen. There is not a personpresent who has not been touched byhis concern, his wit, or his wisdom.No matter what the day entailed

Larry always had time for a cup of tea,a snack and a story. Inevitably, thoughit would be during the busiest time ofyour day.Those of you who own dogs know

how they have a knack of finding thebusiest part of the house and lyingdown on the floor right in the middleof everything. Well, Larry humanizedthis trait.The conversation would go like this

- I’d be told Judge Cullen was calling,and I’d pick up.“Hey it’s me. Come on down I have

a story to tell you.”“Um...ok. Just in a bit; I’m in the

middle of something ....”“Ok. I’ll come up.“However, just as inevitably, these

moments proved to be the absolutebest part of the day. And if it wound upthat you had to stay late or take somework home - so be it. It was a smallprice to pay for such a wonderful ben-efit.So Larry, my dear friend, it is safe to

say that we will all miss you verymuch and that the Queens CountyCourthouse will never be the same.But, we owe you a debt of gratitude

for permanently enriching our liveswith valuable memories of a greatfriendship, spirit, and for a life welllived that we can all seek to emulate.God Bless you Lawrence.

Eulogy by PJ Kelly(Continued from page 3)

Question #1 - May the court award childsupport in accordance with the CSSAGuidelines and order the payer spouse topay the mortgage on the marital homewhere the child resides?

Answer: No, this is an award of a doubleshelter allowance for the child. Harris v.Harris 2012 NY Slip Op 5389 (2ndDept.).

Question #2 - Can the refusal to file ajoint income tax return be found to bemarital waste?

Answer: Yes, Levitt v. Levitt 2012 NYSlip Op 5393 (2nd Dept.).

Question #3 - Are siblings permitted tocommence a proceeding to seek visitationwith a whole or half brother or sister?

Answer: Yes, Matter of Alexandra D. v.Santos 2012 NY Slip Op 5634 (2ndDept.).

Question # 4 - In question #3, if the peti-tioner is a minor, is his or her attorneyauthorized to file the petition for his orher client?

Answer: Yes, Matter of Alexandra D. v.Julianna Santos 2012 NY Slip Op 5634(2nd Dept.).

Question #5 - Is a substantial reduction infather’s visitation with the parties’ child asubstantial change of circumstances war-ranting an increase in child support?

Answer: Yes, since the amount of moneythe father was required to spend on thechild was significantly reduced.McCormick v. McCormick 2012 NY SlipOp 5530 (2nd Dept.)

Question #6 - May the court award tem-porary maintenance in accordance withthe formula set forth in DRL §236(B)(5-a) and direct the payment of carryingcharges on the marital home?

Answer: No, Woodford v. Woodford 2012NY Slip Op 7993 (2nd Dept.)

Questions #7 - Can the trial court awardappellate counsel fees?

Answer: Yes, Franco v. Franco 2012 NYSlip Op 5721 (2nd Dept.)

Question #8 - Is the trial court permittedto order a lump sum distributive award, ifall of the marital assets are non-liquid?

Answer: No, the trial court must orderthe distributive award in installmentsIarocci v. Iarocci 2012 NY Slip Op 6191(2nd Dept.)

Question #9 - When the court orders adistributive award in installments, whatrate of interest should it order?Answer: The legal rate, 9%. Iarocci v.Iarocci 2012 NY Slip Op 6191 (2ndDept.)

Question #10 - The wife obtains anannulment based upon husband’s bigamy.During their purported marriage, the hus-band satisfies a criminal judgment forfailure to pay child support to his firstwife, whom he remarried. Is the wifewho obtains the annulment entitled to bereimbursed by husband for 50% of thecriminal judgment he paid to the firstwife?

Answer: Yes, Levenstein v. Levenstein2012 NY Slip Op 7090 (2nd Dept.)

Answers To Marital Quiz on Page 7

THE QUEENS BAR BULLETIN – OCTOBER 2008 15

income to be considered initially, up to thethen $500,000 cap, was gross income. This isno surprise, since that is precisely what thestatute says. But the husband had argued thatcash flow or net income should be the basisof the calculations. He earned about $800,000and the wife was charged with $60,000. Theresult was that the motion was remanded forreconsideration, inasmuch as the court did notdiscuss any of the statutory factors, includingthose in play relative to the husband’s incomeabove the then $500,000 cap (now $524,000).In the discussion, the court did rule that thestatute was intended by the legislature tomake the temporary maintenance awardinclusive of all of the wife’s needs, includinghousing. Accordingly, just tacking the mort-gage payments onto the husband’s obligationwas a deviation from the statutory scheme.Although the court said that may well havebeen appropriate, such a conclusion had to besupported and explained within a discussionof the requisite statutory factors.While there have been several carefully

considered and well written decisions onthis topic, during the year, one seems partic-ularly worthy of comment:

E.J.L., II v. K.L.L., 950 N.Y.S. 2d 626(Supreme Court, Monroe County, March16, 2012)This lengthy decision is one of many,

which establish the inappropriateness ofapplying the much criticized “presumptive”temporary maintenance guidelines. Herethat was held to be unjust and inappropriate,since the award required by those guidelineswould have transformed the husband fromthe monied to the lessmonied spouse. Thiswas not a “big money” case - (rounding thenumbers) with the wife earning $23,000 andthe husband $83,000 annually in 2011.Their residence had a negative equity. Thehusband presented computations to estab-lish that if he pays the child support estab-lished in a custody agreement ($11,700), hispayroll taxes and the presumptive amount oftemporary maintenance, the wife wouldhave more income than the expenses she setforth in her Net Worth Statement, eventhough those expenses were subject to ques-tion. The parties’ computations of the “pre-sumptive amount” varied, but were bothwithin the $17,000 to $19,000 range.The court noted that the statute shifts the

award from a needs based or status quobased analysis to one based on incomealone. After a lengthy discussion of the leg-islative history and a few lower court deci-sions, this court concluded that the two deci-sions it reviewed held that it was inappro-priate to disturb the presumptive awardsolely because “it was simply too muchmoney.“ But this court’s expressed viewwas, first, that in order to perform its man-date, to determine whether or not the calcu-lated award was unjust or inappropriate, itwas not required to analyze the 17 factorsenumerated in the statute and second, that“the court still has the discretion to deter-mine that the award is ‘unjust or inappropri-ate’ based upon any factor it deems aproposand that the ‘sheer size’ of the award or thefact that the award constitutes ‘a resourceshift’ among the parties is a sufficient justi-fication.” Stated another way, this court saidthat notwithstanding the attempt to stream-line awards and generate greater consisten-cy, the legislature “did not intend to hand-cuff judges in deciding a ‘just and appropri-ate’ amount of temporary maintenance.”The court calculated that under the pre-

sumptive award, the husband would windup with “net available resources of $41,388”and the wife with $48,886, although as amatter of law she is the less-monied spouse

for calculation purposes. The numbers wereinterpreted to leave the husband with insuf-ficient funds to cover his own expenses. Thecourt believed that it was never the intent ofthe legislature that the “presumptive award”would so alter the economic status of thetwo parties, as to transform who was themonied and who was the less-moniedspouse. So, while acknowledging that someother courts have not considered such a sta-tus shift to be an independent basis uponwhich to modify the presumed award, thiscourt held that the catch-all factor, (q) “anyother factor which the court shall expresslyfind to be just and proper,“ allows the courtto make a blanket rejection of the calcula-tion because it is simply too much money.Yet, the very next sentence is: “The finan-cial resource shift, in and of itself, is not abasis for the court to re-write the intent ofthe statute.” In considering the enumeratedfactors, the court properly observed that“Most of the statutory factors are irrelevantat this stage because the court has fewundisputed facts on which to advance ajudgment. There is little evidence of thestandard of living of the parties establishedduring the marriage.” The lack of evidenceof numerous other factors was recounted,and it was noted that other courts have crit-icized the legislature’s use of these criteriaat such an early stage of the case.After a detailed discussion of the facts that

were available, the court concluded that thelegislative intent clearly dictated thereshould be some amount of temporary main-tenance paid. The wife emphasized that thechild support agreement was a substantialdeviation from the CSSA guidelines($11,700 rather than $19,718). But that sameagreement set forth a mutual agreement thatthe CSSA guidelines would be unjust andunfair, and committed the husband to pay100% of extra-curricular activities and tohave the children with him 50% of the time,leading the court not to consider that point inassessing appropriate temporary mainte-nance. The court was not about to revert toan amount that would merely “tide over theneedy party,“ since the guidelines wereenacted to obviate such an underlying objec-tive. That was also made clear in theKHAIRA, Appellate Division decision,supra. After making unusually painstakingreviews of the computations in other deci-sions and of the numbers involved in thecase at bar, the court determined an amountit believed would enhance the wife’s lifestylewhile preserving the husband’s status as themore monied spouse. Whereas the parties’calculations resulted in an annual presump-tive guideline amount of between $17,000and $19,000, the court awarded $10,000.The court also commented that it was

“forced to analyze, in perhaps greater detailthan it had ever previously” the factors andeffects upon the family finances, even on atemporary basis. The discussion of the tem-porary maintenance issue took almost 10 ofthe 12 pages of the printed decision, andobviously took a very substantial time to puttogether. The decision is a testament to ajudge, who recognized the significance ofhis decision upon real life people, and tookthe time to do the “reality test” and do whatappeared to be “right.“ While we doubt thatthe legislation will be scrapped in its entire-ty, most courts were able to do the samething, pre-legislation, in far less time, by theuse of sound discretion and with no need todeal with an inordinate amount of criteria,computations and extensive decision-writ-ing. We can only hope that after some clar-ifications from the appellate courts, a reportfrom the Law Revision Commission andeventually, some corrective legislation, thelaw will be vastly improved, as it needs tobe. However, most of those close to theprocess have concluded that the politicalreality is that we are going to wind up with

some permanent maintenance and mainte-nance duration guidelines. We wait withbated breath and considerable trepidation!

DRAFTING ALERT!SCHNEIDER v. SCHNEIDER, 98 A.D. 3d732, 951 N.Y.S. 2d 30 (App. Div. 2nd Dept.Aug. 29, 2012)There are important lessons to be learned

from this cited Appellate Division decision.If this case does not suggest an inequitableresult to you, then at least it should serve asa warning, in terms of drafting both agree-ments and motions.Here the parties (referred to as H for hus-

band andW for wife) entered into an agree-ment in 2005, pursuant to which the Wbecame the primary residential parent ofthe parties’ two children. 4 years after theparties’ divorce, the younger child movedfrom his mother’s residence into hisfather’s. The H then made a motion inSupreme Court, to modify the child supportprovisions, so as to require the W to paychild support for the child who was thenresiding with him full time, pursuant to theCSSA. A Cross-Motion was made for vari-ous child support arrears.At first blush, this appeared to us to be a

“no-brainer”, a clear case for the requestedmodification. But the H’s motion wasdenied both in the Supreme Court and in ourAppellate Division. We get only two rele-vant statements from the court: first, theconclusory pronouncement that the H“failed to demonstrate that the stipulationshould be modified to adjust the parties’respective child support obligations so as torequire theW to pay the H child support” forthe child living with him. That was followedby this language: The H “did not claim thatthe younger son’s change of residence wasan ‘unanticipated and unreasonable changein circumstances’ or that the boy’s needswere not being met,“ citing BODEN vBODEN, 42 N.Y. 2d 210 and BRESCIA v.FITTS, 56 N.Y. 2d 132, inter alia.Assuming that the original agreement con-

tained a “survival clause,“ although notspecified in the decision, then it is true thatthe Court of Appeals decision in BODEN,supra, requires a showing of an “unantici-pated and unreasonable change in circum-stances” before the agreement can be modi-fied. We have also known for a long timethat an alternative justification for the modi-fication of child support in a surviving agree-ment was to establish that without a modifi-cation the child’s needs would not be met, asestablished in BRESCIA, supra. T h echange of a child’s residence from one par-ent to the other, in our opinion, shouldalmost automatically qualify as an unantici-pated and unreasonable change of circum-stances. If the H is now providing food,housing, clothing and other necessaries forthe boy, why should he be paying child sup-port for that child to his ex-wife? The resultcertainly appears to be inequitable. But thereare two lessons to be learned. First, theagreement could have provided for thiseventuality. At the very least, in the defini-tion of “emancipation” most drafters includethe permanent removal of a child from thepayee’s residence as an emancipation event.In this case, that may not have automaticallyentitled the H to receive child support, but itwould certainly have enabled him to avoidhaving to pay out support after the childmoved from his mother’s residence. Ofcourse, a specific provision as to what wouldhappen when and if a child moves from oneparent to the other, would have saved the dayand a whole lot of litigation.The second lesson relates to the motion

itself. Clearly, when seeking to modify asurviving agreement, one must allege andprove one of the prerequisites set up by theBODEN and BRESCIA decisions, supra -either that there has been an unreasonable

and unanticipated change of circumstancesor that the child’s needs cannot be met with-out a modification. If the H’s attorney didnot make that claim, then the papers wereclearly deficient. The “magic words” shouldhave been used. However, courts have veryoften declined to exalt form over substance,and here the court could easily have afford-ed the H relief, interpreting the facts of thecase to establish the necessary “unreason-able and unanticipated change of circum-stances.” Here, the only relief given was toreduce the child support arrears by $1,680based upon a failure of proof of some items... not much of a result after the husband’spaying for the motion and a full appeal!

UNANSWERED QUESTIONPELCHER v. CZEBATOL, 951 N.Y.S. 2d

288 (App. Div. 4th Dept., Sept. 28, 2012) Inthis decision, a wife, whose mother hadgiven her a $150,000 gift, put the money intoher own checking account and used it to buythe parties’ marital residence. Despite thefact that the house was bought in both par-ties’ names, as tenants by the entirety, theCourt found no intent to make a gift of anyof that separate property to the husband, andaccordingly, gave the wife credit for the fullamount of separate property, contributed tothe acquisition of this marital asset. Thereare many decisions going the same way. Theunanswered question (based upon the deci-sion only) in this case is procedural. Thedecision reflects that the question of thiscredit was raised in a pre-trial motion thatwas decided in the wife’s favor. But the deci-sion reports that the W died, and her execu-tor-mother was “substituted as the plaintiff.”If there had not been a final divorce by thetime the wife died (and there is no sugges-tion that the action had gone that far), thenwhy were this motion and the pre-trial deci-sion not moot? It is well established thatupon death a divorce action abates.Moreover, the husband would then be enti-tled to the entire residence, as a result of hissurvivorship right, assuming a tenancy bythe entirety or joint tenancy. Until thedivorce is finalized there can be no equitabledistribution. Accordingly, upon reading thedecision, it remained a mystery as to whythis appeal was allowed to go to a decision,after the wife’s death. We called the attorneyfor the wife and her estate, and were told thatalthough there is no mention of it in the deci-sion, the parties were in fact divorced, basedupon a settlement agreement which left thedivision of house proceeds open, to be madepursuant to the Appellate Division decision,all before the wife’s death. Mystery solved!

CHANGES IN QUEENSMATRIMONIAL PRACTICELast month a representation from the

Family Law Committee met with JudgeWeinstein and discussed changes that weregoing to be made starting in January, 2013.As a result a notice was sent to the FamilyLaw Committee members by E-Mail, advis-ing of the new developments. In order toinform other members of the BarAssociation, who may have either missed theE-Mail or who are not members of the com-mittee, it was decided that the entire noticeshould be re-printed here, and it follows:Our Administrative Judge, Jeremy S.

Weinstein, recently invited a small group ofrepresentatives from our committee, to dis-cuss upcoming changes. We were told thatdue to continuing budgetary constraints,vacant judgeships not being filled and short-ages of other supporting staff, the Countywas continuing to be asked to do more withless. Notwithstanding that, the Court is sin-cerely concerned with improving the opera-tion of the Matrimonial Parts.Starting in January, there will be some

changes in the Parts. Judges Pam Jackman

Family Law Update(Continued from page 1)

(Continued on Page 16)

THE QUEENS BAR BULLETIN – FEBRUARY 201316

Brown and Joseph J. Esposito will continueto operate their Parts. The majority of theinventory of Hon. Thomas D. Raffaele willbe taken over by Hon. Leslie J. Purificacion.Judge Raffaele will preside over what isbeing called an 11 hybrid 11 part, wheresome of his current cases will be continuedand some other matters, such as hearings,may be assigned in the future, in addition tohis new Part’s handling other types of civilcases. Hon. Rudolph E. Greco, Jr. will fin-ish up the cases already before him, afterwhich he will no longer be handling matri-monial matters. The IDV Part will continueto operate as before.Referee Elizabeth Anderson and J.H .O.

Stanley Gartenstein will also be available toconduct trials. The major procedural changewill relate to the conduct of the PreliminaryConferences.Referee Lisa J. Friederwitzer is being

assigned the task of presiding over a new,centralized Matrimonial P.C. Part, whichwill conduct all P.C.’s which have not previ-ously been scheduled before the matrimoni-al judges, thus freeing their time and hope-fully, streamlining and making the P.C.process more meaningful and productive. Itis going to be expected that we lawyersrefrain from coming to the P.C.’s to more orless play a waiting game, not having yetcompleted Net Worth Statements or pro-duced basic financial records, and expectingto have a schedule imposed at the P.C.,which will only require later action. Theintent and expectation is that the P .C.’s,which will be able to be scheduled sooner,and with staggered appearance times, will

result in early agreements or orders for var-ious issues, including support, parentalaccess, etc. The court is not limited by theabsence of any underlying motion, althoughit will be expected that pleadings are served,seeking various forms of relief. Temporaryorders will be made to afford parties reliefor partial relief in various areas, withoutlong waiting times. But this means we haveto be ready to cooperate with and preparefor the process.Initially, the P.C.’s will be conducted

(upon the filing of an R.J.I. requesting thatrelief or the filing of any pendente litemotion) on Tuesday, Wednesday andThursday mornings, with attendance byattorneys and clients being mandatory. It isexpected that complaints and answers willhave been served and filed, with copiesbeing made available at the P.C. Moreover,various other documents are expected to befiled and copies made available, as morespecifically set forth in the Part Rules. ThePreliminary Conference Order form willhave to be filled out, as usual, and should bedone insofar as possible before the confer-ence begins. To facilitate this process, a copyof the P.C. Conference Order will be mailedalong with the Order directing thePreliminary Conference. One adjournmentmay be granted as a result of the first appear-ance. But the plan is to have all preliminaryorders, by agreement or court direction,made by the end of the second session,whereafter the case will be assigned aCompliance Conference date before one ofthe matrimonial judges.Requests for adjournments must be made

only by E-Mail to QSMATPC@courts.state.ny.us. A copy of the new Part Rules,while subject to change, is attached.

Metropolitan Transportation Authority aregoverned by Public Authorities Law §1276, which states that the limitationsperiod is one year. That seems clearenough, except that the limitations periodis really a year-and-30-days. You see, thecomplaint in an action against the MTAmust state that the claim has been present-ed to the MTA, which has neglected ordeclined to pay it for thirty days. That isread as a statutory stay of the action forthirty days, and by virtue of CPLR 204 (a)is not a part of the time within which theaction must be commenced.2Now, there is a similar waiting period

provision in GML § 50-i (1), so you mightconclude that the limitations period underthat statute would be similarly extended,to a year-and-120-days. But you would bemistaken, since GML § 50-i (2) states thatits provisions are applicable notwithstand-ing any inconsistent provision of law.Therefore, CPLR 204 does not apply, andthe waiting period triggers no stay and noextension.3 For good measure, GML § 50-i (3) states explicitly that nothing con-tained in the section shall extend the limi-tations period beyond the year-and-90-days of subdivision (1). Now what aboutthe aforementioned Nassau CountyBridge Authority? Its statute has the 30-day waiting period, carries a year-and-90-day limitations period, but says nothingabout inconsistent provisions of law. Isthat limitations period really a year-and-120-days?4The Legislature has now acted to bring

some consistency to this area. The“Uniform Notice of Claim Act”5 providesfor a consistent time for service of noticesof claim (90 days after the claim arises),the form of notices of claim (as in General

Municipal Law § 50-e), a central place forthe service of the notice of claim (the sec-retary of state), and a consistent limita-tions period (a year-and-90-days, with nostay for presentment of claim). The Actfirst establishes the uniform practices, andthen amends no less than 71 separatestatutory provisions governing entitiesentitled to notices of claim, specifying theuniform notice of claim procedures andthe uniform statute of limitations. It is ameasure of the disarray of the notice ofclaim procedures that the Sponsor’sMemo on the bill described the number ofentities entitled to notices of claim as“large though uncertain,” and that the gen-eral provisions of the Uniform Act areapplicable to all of them, whether or notthe specific statute applicable to a specificentity was amended in the Uniform Act.Apparently, even the Legislature couldn’tfind them all.A significant number of governing

statutes were not specifically amended,and some of the remaining ones may stillretain quirks presenting traps for theunwary. One of the provisions of theUniformAct is that the secretary of state’swebsite will have a list of public corpora-tions, authorities or other entities subjectto notice of claim requirements, with anystatutory provisions unique to each entityand suits against it. Remember, however,the general principle that errors in suchpostings or informational services do notserve to estop governmental entities fromclaiming the benefits of statutes as theyactually exist. The specific statute muststill be found and consulted. Care mustalso be taken to ascertain whether a noticeof intention to sue is still required in addi-tion to, or even in place of, the notice ofclaim. The Uniform Act replaces many ofthe notice-of-intention requirements withnotices of claim, but it does not have auniversal provision replacing all notices

of intention to sue with notices of claim.PAL § 841, governing the Central NewYork Regional Market Authority, with itsidiosyncratic requirement of both a noticeof claim and notice of intention to sue,survived specific amendment by theUniform Act. It would not be amiss toassume that the double notices are stillrequired. Whether the notice of intentionto sue can be served on the secretary ofstate, as can all notices of claim, is notaddressed by the Uniform Act.Herewith, a brief description of the gen-

eral provisions of the Uniform Notice ofClaim Act:A new CPLR provision has been enact-

ed, 217-a, which makes the provisions ofGML § 50-e applicable to all entities enti-tled to a notice of claim, whether or notthe specific statute governing the entityhas been amended to say so. The notice ofclaim must be “served on such govern-mental entity within the time limit estab-lished by, and in compliance with all therequirements of section fifty-e of the gen-eral municipal law.” Later provisions ofthe Uniform Act amend the GML so as tomake the secretary of state the centraldelivery point for notices of claimthroughout the state, as will be describedshortly.The new section also provides that the

limitations period in all such cases shallbe the longer of a year-and-90-days, or adifferent period prescribed in “any specialprovision of law.” The section begins withthe recitation “Notwithstanding any otherprovision of law to the contrary, and irre-spective of whether the relevant statute isexpressly amended by sections threethrough seventy-nine of the uniformnotice of claim act. . . ,” thus removingany extension of the limitations perioddue to waiting periods after presentationof the claim. The term “special provisionof law” is not defined. Presumably it

refers to the specific periods existing inspecific governing statutes, and not thegeneral provisions of the CPLR, which forboth negligence and contract actions arealways longer than a year-and-90-days.6Excepted from the year-and-90-day

limitations period are actions for wrongfuldeath. The UniformAct does not set a spe-cific limitations period for these, whichgenerally carry a limitations period of twoyears from the date of death. For entitiesgoverned by the General Municipal Lawthis is set forth at GML § 50-i (1). Publicauthorities and public benefit corporationsare subject to Article 9, Title 11 of thePublic Authorities Law, in which the two-year limitations period is set forth at §2981.The new CPLR 217-a concludes by

stating that it is not intended to amend thecourt of claims act or any of its provisions.CPLR 8301 is amended by renumbering

the existing paragraph (12) as paragraph(13), and inserting a new (12), whichmakes taxable disbursements of any feesfor service of notices of claim on the sec-retary of state under the newly-enactedGML § 53.7GML § 50-e (3) is amended by adding a

new paragraph (f), which sets forth thatnotices of claim may be served on govern-mental entity by delivery to the secretaryof state, or his deputy or any personauthorized by him, at the secretary ofstate’s offices, in Albany or any otheroffice, duplicate copies of the notice, withthe fee. Service on the entity is completeupon delivery to the secretary of state. Thesecretary of state is thereupon required tosend one of the copies to the entity by cer-tified mail, return receipt requested. Notethat this procedure for service is an alter-native to any other statutory means ofservice which may be in the entity’s spe-cific governing statute, whether or not that

Family Law Update(Continued from page 15)

CPLR Annual Update(Continued from page 1)

MATRIMONIAL PRELIMINARYCONFERENCE PART- Part RulesPreliminary conferences shall be held

on Tuesday, Wednesday and Thursdayeach week.Preliminary conferences will be con-

ducted within forty-five (45) days afterassignment of the action.

CALENDARCalendar call is at 9:30 a.m., unless the

matter is scheduled at a time certain.Please be prompt for all appearances.Defaults will be taken at 12:30 p.m.

APPEARANCESUnless otherwise directed by the

Matrimonial Preliminary ConferencePart (MPCP) the appearances of Counsel,Plaintiff and Defendant areMANDATO-RY at all Preliminary Conference courtappearances. Counsel are to submit twobusiness cards to the MPCP.

PLEADINGSPrior to the Preliminary Conference,

all pleadings (Verified Complaint,Answer, Notice of Appearance, andAffidavit of Service) must be properlyfiled with the Office of the County Clerk.Courtesy copies of all pleadings are to beprovided to the MPCP at the PreliminaryConference.

DOCUMENTSFully completed and acknowledged

Net Worth Statements with required doc-uments, including parties’ recent paystubs and W-2s, Attorney’s RetainerStatements and Temporary Maintenance

Guidelines Worksheets, are to be proper-ly filed with the Office of the CountyClerk ten ( I 0) days prior to thePreliminary Conference date. Courtesycopies of all documents, including anypending motions or orders to show causeand prior and current Court orders fromany and all courts, are to be provided tothe MPCP at the Preliminary Conference.

PRELIMINARY CONFERENCEORDERPrior to the call of the Preliminary

Conference calendar, counsel and/or selfrepresented parties MUST complete theproposed Preliminary Conference Orderto submit to the MPCP at the firstappearance.

ADJOURNMENTSAdjournments may be granted on a

limited basis upon request to the MPCP.The MPCP will not grant adjournmentsof Preliminary Conferences beyond theforty-five (45) day period unless goodcause is shown.Communication with the MPCP will

be accepted through ema il only atQSMATPC@courts.state.ny.us.

INTERPRETERSNotification for Court Interpreter

Services shall be made to the MPCP notless than five (5) business days prior tothe first court appearance by email atQSMATPC@courts.state.ny.us. At thetime of calendar call or check in,Counsel and/or Parties shall remind theMPCP that Court Interpreter Services areneeded.

(Continued On Page 5)

17THE QUEENS BAR BULLETIN – FEBRUARY 2013

statute is specifically amended by theUniform Act.GML § 50-e (5), governing applications

for leave to serve a late notice of claim, isamended by adding a reference to serviceof the notice on the secretary of state.A new section of the GML, § 53, is

enacted, which sets forth that service of thenotice of claim on the secretary of statemay be made in lieu of service directly ona public corporation. The notice served onthe secretary of state must contain thesame information as a notice served on thepublic corporation, and

“All the requirements relating tothe form, content, time limitations,exceptions, extensions and any otherprocedural requirements imposed insuch section with respect to a noticeof claim served upon a public corpo-ration shall correspondingly apply toa notice of claim served upon the sec-retary of state”.

The secretary of state is to be deemedthe agent for service of notices of claim onall public corporations subject to thenotice of claim requirement. The secretaryof state is required to designate an officefor the service of notices of claim. Allpublic corporations subject to the noticeof claim requirement are required to file acertificate with the secretary of state des-ignating the secretary as such an agent,and providing the name and address of theperson or officer to whom the secretary ofstate is to send the notices received. Thefiling with the secretary of state must statethe applicable time limit for service of thenotice of claim, and if that time is lateramended, there must be a new filing stat-ing the new time limit. It is not clear whythis is necessary, in view of the provisionof the new CPLR 217-a harmonizing allsuch time periods with the 90-day require-ment in GML § 50-e. Any failure of a pub-lic corporation to file with the secretary ofstate does not invalidate service of thenotice of claim on the secretary. As notedabove, the secretary of state is required topublish on the departmental website a list-ing of the entities entitled to notices ofclaim, with the address of the entity andany statutory provisions unique to theentity. To repeat, however, the listingmight well contain errors, estoppel on thegrounds of such errors is not generallyavailable, and the careful practitionerwould do well to check the actual statuto-ry provisions in each instance.The secretary of state is required to

notify the public of the time, place andmanner of service on him, by way of thesecretary’s website. The secretary isrequired to issue a receipt, with the dateand time of receipt, an identifying numberor name, and the embossed seal of thedepartment of state. The rights of the pub-lic corporation to any defense based onthe nature, sufficiency or appropriatenessof the notice of claim, or objection to itstimeliness, is not affected by the new pro-visions.And oh yes, the fee. The secretary of

state may impose a fee for service bydelivery to the department of not morethan $250, to be divided half-and-halfbetween the secretary and the public cor-poration involved.The balance of the UniformAct amends

many, but by no means all, of the statuto-ry provisions concerning notices of claimagainst public entities. Of the provisionsand entities mentioned above, for exam-ple, the Nassau County Bridge Authority

has been brought into conformity, with theamendment of Public Authorities Law §666-b to replace the notice of intention tosue requirement with a notice of claim, tobe filed within the time limit of GML §50-e, i.e., 90 days of the accrual of theaction. So has the Triborough Bridge andTunnel Authority, with the amendment ofPAL § 569-a.And now, back to the usual traversal of

case law.

Appellate PracticeSiegmund Strauss, Inc. v East 149th

Realty Corp., ___ NY3d ___, ___ NYS2d___, 2012 NY Slip Op 07048 [October 23,2012]Paul v Cooper, 100 A.D.3d 1550, ___

NYS2d ___, 2012 N.Y. Slip Op. 07831[4th Dept., 2012]Smith v Town of Colonie, 100 A.D.3d

1132, 952 N.Y.S.2d 923 [3rd Dept., 2012]The Court of Appeals here clarified the

reviewability of intermediate orders onappeals from final judgment, allowingsome orders to be reviewed where theAppellate Division had not. Recall thatCPLR 5501, governing the scope ofappellate review, provides that a non-finalorder which “necessarily affects” the finaljudgment is reviewable on an appeal fromthat judgment, providing that the non-finalorder has not already been reviewed bythe court hearing the appeal. What it takesto “necessarily affect” a final judgmenthas been subject to differing interpreta-tions in the commentaries, and the Courthere adopted a broader interpretation thanthat accepted by the Appellate Division.Last year’s discussion of the Appellate

Division opinion in this case8 centered ona corollary of this rule, set forth in Matterof Aho,9 that the right of direct appealfrom an intermediate order terminates onthe entry of final judgment. If the interme-diate order “necessarily affects” the finaljudgment, it will still be reviewable onappeal from that final judgment. If not, theentry of judgment terminates the right toappeal, whether or not the aggrieved par-ties have substantial rights at stake andeven if they have diligently pursued theappeal. Since the Appellate Divisionfound that the intermediate order did not“necessarily affect” the final judgment, itnot only dismissed the appeals from thoseorders pursuant to Matter of Aho, butrefused to review them on the appeal fromthe judgment.The dispute arose out of a failed busi-

ness merger between the parties, for sim-plicity referred to here simply as “Strauss”(plaintiffs) and “the Rodriguezes” (defen-dants). The original agreement contem-plated that the Rodriguezes would contin-ue working at the premises involved in thebusiness, and the dispute reached a headwhen Strauss changed the locks andexcluded the Rodriguezes from the prem-ises.Strauss sued for a declaratory judgment

that the Rodriguezes had no interest in thepremises, and moved for a preliminaryinjunction excluding them. The motionwas granted. The Rodriguezes then servedpleadings asserting claims for fraud, con-version and tortious interference with con-tracts with various other entities, improp-er accounting and wrongful termination.Their pleadings denied the existence of acontract and asserted no claim for breachof contract. Strauss successfully moved todismiss these claims, on the grounds thatthe Rodriguezes’ claims really sounded inbreach of contract, since the essence of thepurported fraud claims was that Straussentered into the merger agreement with nointent of performing it.Strauss filed a note of issue. The

Rodriguezes moved to amend their plead-ings to assert claims for breach of con-tract, but the motion was denied, appar-ently as untimely. They filed a notice ofappeal from this order, but neither perfect-ed nor formally withdrew it, choosinginstead to pursue an appeal from anyadverse final judgment.After a bench trial, the trial court held in

favor of Strauss, declaring that Strausswas entitled to possession of the premisesand that the Rodriguezes had no interest init. The Rodriguezes now appealed fromthis judgment, asserting that the appealbrought up for review the prior orders dis-missing their original pleadings and deny-ing leave to amend.The question was this: Did the interme-

diate orders “necessarily affect” the judg-ment, or not? If so, they would be still bereviewable on the appeal from the finaljudgment, if not, not. The AppellateDivision adopted the approach suggestedby Professor Siegel, that the questionshould be whether or not reversal of thenon-final order would require reversal ofthe judgment.10 If it would, then it “neces-sarily affects” the judgment, if not, not.Since the non-final orders here affectedonly the Rodriguezes’ contract claims, andnot the possession of the premises whichwas the subject of the final judgment, thecourt found that reversal of the intermedi-ate orders would not require reversal ofthe judgment, and hence did not “neces-sarily affect” it. The intermediate orderswere held not reviewable.The Court of Appeals, however, found

this approach too narrow. Where an inter-mediate order dismisses a cause of actionor counterclaim, the question of whether it“necessarily affects” the final judgmentshould not turn on whether the reversal ofthe intermediate order would completelyoverturn the final judgment. The Court pre-ferred the formulation in Karger’s Powersof the New York Court of Appeals,11 that theterm includes the cases where the reversalof the intermediate order would require amodification of the final judgment, as wellas its reversal. By eliminating the issuespresented by the Rodriguezes’ claims fromthe case, and hence from the judgment, theintermediate orders “necessarily affected”the judgment. The Court sent the matterback to the Appellate Division for furtherconsideration.Two Appellate Division cases decided

in the immediate wake of SiegmundStrauss nicely illustrate the application ofthe newly clarified rule. In Paul v Cooper,a motor vehicle accident case, two pretrialorders were involved. The first grantedplaintiff’s counsel’s motion to be relieved,and the second dismissed plaintiff’s claimfor lost wages. When the trial day came,plaintiff was unready to proceed, and thecourt found her in default and dismissedher complaint. On appeal from the result-ing judgment, the plaintiff sought reviewof the intermediate orders relieving coun-sel and dismissing the lost wages claim.The Appellate Division found that theorder relieving counsel did not necessarilyaffect the judgment, and that it was there-fore not reviewable on the appeal from thejudgment. The order dismissing the lostwages claim, on the other hand, eliminat-ed the issue from the case, and hence didnecessarily affect the judgment. It wastherefore reviewable. In the event, thecourt found the dismissal of the claim notto be an abuse of discretion.Necessary to the operation of the rule,

however, is that there be an appeal fromthe final judgment. In Smith v Town ofColonie, a products liability case, the trialcourt had granted partial summary judg-ment, limiting the plaintiff’s failure to

warn claim based on the bill of particulars,and later denied leave to amend the bill.After a defendant’s verdict, and subse-quent judgment, plaintiff appealed fromthe order granting partial summary judg-ment. The Appellate Division recognizedthat the intermediate order necessarilyaffected the final judgment by eliminatingissues from the case, and would have beenreviewable on an appeal from the judg-ment. Since the plaintiff had neglected toappeal from the final judgment, however,the rule in Siegmund Strauss could not beapplied. Matter of Aho remains good law,and therefore the right to direct appeal ofthe intermediate non-final order hadended with the entry of final judgment.The court declined to deem his appealfrom the intermediate order an appealfrom the judgment, and dismissed theappeal.

In re Weeks Woodlands Ass’n, Inc., vDormitory Authority of the State of NY, ___NY3d ___, ___ NYS2d ___, 2012 N.Y. SlipOp. 08175 [2012]; affirming 95 A.D.3d747, 945 N.Y.S.2d 263 [1st Dept., 2012]The Court of Appeals here affirmed, on

review of submissions, an AppellateDivision order dismissing an appeal asmoot, even though all of the Justices onthe First Department panel agreed that theconstruction was done in violation of theNYC Zoning Resolution.When circumstances have overtaken a

case, such that there is no longer an actualcontroversy before the court, the usualrule is to dismiss the case as moot.Otherwise, after all, the court would haveto issue an impermissible advisory opin-ion.12 There is a well-recognized excep-tion to that rule, which allows considera-tion of an otherwise moot case wherethere are“three common factors: (1) a likeli-hood of repetition, either between theparties or among other members ofthe public; (2) a phenomenon typical-ly evading review; and (3) a showingof significant or important questionsnot previously passed on, i. e., sub-stantial and novel issues.” 13

In cases concerning whether ongoingconstruction projects should be allowed tocontinue (as against zoning or environ-mental challenges), there is an additionalissue. If the court at nisi prius ruled infavor of continuation of the project, whichwas in fact completed before appellatereview could show that the ruling waserroneous, is the appeal now moot or not?In Citineighbors Coalition v NYC

Landmarks Preservation Com’n andDreikausen v Zoning Bd. Of Appeals, theCourt of Appeals has recognized that, onthe one hand, the extent to which the con-struction had approached completion is arelevant factor, and on the other hand, a“race to completion” should not beallowed to determine the mootness ques-tion.14 In addition to the mere fact of com-pletion (or near-completion), therefore theCourt listed three additional factors insuch cases. The most important is whetheror not the construction’s opponent soughtprovisional relief against the construction,such as by a preliminary injunction. Theothers are whether or not the constructionwork was done without authority or in badfaith, and whether or not the constructioncan in fact be readily dismantled withoutundue hardship. As the Court noted inCitineighbors Coalition, a rule that alwaysallowed appellate consideration of thechallenge even after completion of theproject would place all the financial riskson the property owners and developers.15

CPLR Annual Update(Continued from page 16)

(Continued on page 18)

THE QUEENS BAR BULLETIN – FEBRUARY 201318

This case involved a zoning challengeto a hospital modernization project, whichSupreme Court rejected in August of2011. The court also denied the petition-ers’ application for a preliminary injunc-tion. On appeal to the First Department,the petitioners did not renew their applica-tion for injunctive relief. By the time thematter reached a decision before the FirstDepartment, in May of 2012, a substantialamount of the work was complete, and thecourt found that it had not been done inbad faith and could not readily be undone.Hence, the exception to the mootness doc-trine did not apply, and the appeal was dis-missed as moot.This was done in the face of a strong

dissent, both on the mootness issue andthe merits.16 The majority stated thatwhile it “would adopt the dissent’s cogentanalysis of the zoning issue” on the mer-its, the petitioners’ failure to pursueinjunctive relief from the AppellateDivision allowed the construction to pro-ceed and the matter to become moot. Themajority noted at least six occasions whenthe petitioners would have been procedu-rally allowed to seek such relief, andfailed to do so.17 Petitioners’ initial appli-cations before the Supreme Court, first fora temporary restraining order and then fora preliminary injunction, were not suffi-cient to avoid their responsibility to pressthe applications before the AppellateDivision. By failing to do so, the courtviewed them as “complicit” in the contin-uation of the work to the point where itcould not readily be undone. The courtviewed it as incumbent on the petitionersto have acted to preserve the status quo atevery stage of the proceeding. An excusethat a successful application for a prelimi-nary injunction would entail an onerousbonding requirement was rejected in theCourt of Appeals cases cited above, andwas rejected by the Appellate Division. Itwas not the respondents’ responsibility toessentially enjoin themselves if the peti-tioners did not seek to do so.One word of caution concerning the

precedential effect of the affirmance. TheCourt of Appeals went no further thanagreeing with the dismissal for mootness.There is still no explicit approval by theCourt of Appeals of the rule that oppo-nents of construction projects must presstheir entitlement to provisional relief inthe Appellate Division as well as in thecourts of original instance. InCitineighbors the petitioners never soughtinjunctive relief, and so the issue of wherethey should have done so did not arise. InDreikausen the petitioners in fact did seeka preliminary injunction from theAppellate Division, which was denied.The issue of mootness did not come upuntil the matter was in the Court ofAppeals.

ArbitrationN.J.R. Assoc. v Tausend, 19 N.Y.3d 597,

950 N.Y.S.2d 320 [2012]This is one of those cases where a nom-

inal concurrence is in fact a dissent.The ultimate question was whether

Plaintiff’s limitations challenge to theRespondent’s counterclaims should bedetermined by the court as a thresholdmatter, or by the arbitrators.Determination of that issue posed an ini-tial choice: was the arbitration subject tothe Federal Arbitration Act or to NewYork law? The Federal Act presumptivelyleaves the issue to the arbitrators, whileNew York law normally allows an arbitra-tion respondent to present the issue to a

court. The party raising the limitationsissue here, however, was not the arbitra-tion respondent, but the initiator of thearbitration, seeking to bar the respondent’scounterclaims as untimely. New York lawin that context was unclear.The case, then, presented a choice

between choices: should the Court firstchoose which law governed? If federallaw governed, the New York issue couldbe left to another day. Or, should it decidethe New York question first? If the resultwas the same as under federal law, thechoice of governing law could be left toanother day.The dispute was over the disposition of

two buildings in New York City owned bya Tausend family trust, which were in turnacquired by the petitioner NJR. The part-ners in NJR were Ronald Tausend (80%),and his children Nicole and Jeffrey (20%each). The partnership agreement provid-ed for both arbitration and the applicabili-ty of New York law. The buildings wereacquired by NJR in 1985, and the pur-chase price of $1.9 million was based onan appraisal which excluded air rights asworthless. The same day, NJR sold onebuilding’s air rights alone for $1.75 mil-lion. Some twenty years later, NJR soldthe land rights to that building for $10.25million, and converted the other buildinginto a condominium. The dispute arosewhen Nicole sought information concern-ing the sale of the property. Rebuffed byNJR and her father, she brought an Article78 proceeding to obtain documents and anaccounting. NJR demanded arbitration,Nicole unsuccessfully sought to stay it.Compelled to arbitrate, Nicole appearedand asserted counterclaims (which theopinion does not describe), and it is thesewhich bring us to the issue. NJR com-menced its own proceeding to stay arbitra-tion of the counterclaims, on limitationsgrounds, which Nicole moved to dismiss,as properly asserted only in front of thearbitrator. Supreme Court agreed withNicole and stayed arbitration of the coun-terclaims. The Appellate Division agreedwith NJR and dismissed the petition tostay arbitration of the counterclaims, onthe grounds that NJR had initiated thearbitration and had participated in it. TheCourt of Appeals affirmed the AppellateDivision.The FAA applies where the contract

affects interstate commerce. Such con-tracts may contain a choice-of-law provi-sion, but the wording is crucial. If thechoice-of-law provision adopts New Yorklaw as to both “the agreement and itsenforcement”, then New York law appliesto the threshold limitations question, butless explicit formulations will not be suf-ficient.18 The parties here merely statedthat their agreement was to be “governedby, and construed in accordance with, thelaws and decisions of the State of NewYork,” and thus did not unequivocallychoose New York law on this issue.Assuming that the contract affects inter-state commerce, the FAAwould apply andthe limitations issue would be for the arbi-trators.The Court chose not to determine the

validity of that assumption, choosinginstead to address New York law first.CPLR 7503(b) specifies that a petition tostay arbitration, specifically including onemade on limitations grounds, may be pre-sented by “a party who has not participat-ed in the arbitration.” NJR had of courseinitiated the arbitration, defeated Nicole’spetition to stay arbitration, receivedNicole’s own petition to compel arbitra-tion of the counterclaims and obtained itsown order to stay arbitration of the coun-terclaims until the timeliness issue could

be decided by the court. The Court ofAppeals found this more than sufficient toinvoke the rule in CPLR 7503(b) thatcourt resolution of the limitations issue isnot available to a party who has alreadyparticipated in the arbitration.The concurrence, by Judge Smith, dis-

agreed with both choices in the majority’sanalysis. He would have addressed thethreshold issue of the applicability of theFAA. He found that the partnership agree-ment at issue clearly involved interstatecommerce, indeed international com-merce. The partners of NJR reside in NewYork, Italy and California, and the pur-pose of creating the entity was to acquireManhattan real property. That being so,the FAA clearly governed, making the dis-cussion of New York law unnecessary. Healso disagreed as to the majority’s deter-mination of New York law, finding thatthe mere fact that NJR initiated the arbi-tration of its own claims should not pre-clude it from seeking judicial resolution ofthe timeliness of Nicole’s claims.

Article 78Kahn v New York City Dept. of Educ.,

18 N.Y.3d 457, 940 N.Y.S.2d 540 [2012]McCarry v. Purchase College, State

University of New York, 98 A.D.3d 671,949 N.Y.S.2d 764 [2d Dept.,2012]When a probationary employee of the

NYC Department of Education is termi-nated, the availability of an internalreview procedure established by a collec-tive bargaining agreement and theDepartment’s by-laws does not serve todelay the finality of the decision to termi-nate. The four-month limitations periodtherefore begins to run on the date of ter-mination, not when the internal review iscompleted. The internal review is not anadministrative remedy which must beexhausted prior to the employee com-mencing an Article 78 proceeding chal-lenging the termination. Rather, it is sim-ply an optional and alternative means ofseeking redress.The Court of Appeals had before it here

two matters with similar facts. In each, aprobationary employee had been terminat-ed on the grounds of unsatisfactory per-formance. In each, the employee receiveda written statement stating unequivocallythat her employment would terminate on aspecified date. Each notice advised theemployee that she had the right to seekreview. In each, the employee pursued theinternal review without success. In each,the employee commenced an Article 78proceeding challenging the adverse deter-mination within four months of the com-pletion of the internal review, but morethan four months after the terminationdate in the termination letter.One of the employees (Kahn) had initi-

ated the internal review a few weeks priorto the termination date, and the adversedetermination of the review came downabout 3 ½ months after the terminationdate. In the second case (Nash), the inter-nal review process was considerably moreprotracted. It took 11 months for thereviewing committee to hold a hearing,and another two years for the superinten-dent to reaffirm the termination as of theoriginal date.In each case, the respondent

Department of Education moved to dis-miss the proceeding as time-barred, rely-ing on the opinion of the Court of Appealsin Matter of Frasier.19 Frasier did notinvolve a limitations issue. The probation-ary employee in Frasier had in fact beensuccessful in pursuing the internal review,and the issue was whether or not he wasentitled to back pay and benefits for thetime between the termination date and his

reinstatement. In holding that he was not,the Court held that the original determina-tion was in all respects final and bindingas of the termination date, and did notawait the internal review to become effec-tive.Applying this rule to the cases before it,

the Court concluded that the starting pointfor the four-month limitations period tochallenge the termination must be theeffective date, not the eventual end of thereview. It follows, of course, that theemployee need not await the determina-tion of the review to commence an Article78 proceeding challenging the termina-tion. As the Court noted, the internalreview can be quite lengthy (as happenedto Nash here), and the employee shouldnot have to wait it out before making hischallenge. After all, during the review theemployee is not in fact employed, is notbeing paid, and has no right to back pay inthe event the review is successful.The decision here was heavily depend-

ent upon the fact that the employees wereprobationers, and the termination date wasdiscretionary with the employer. Comparethe result, therefore, with the McCarrycase, where an assistant professor wasnotified that his contract would not berenewed. The limitations period for hisArticle 78 proceeding commenced on thedate he was notified of the decision, andnot on the date his existing contract endedby its terms.

Attorney and ClientJudiciary Law §§ 475 and 475-a have

been amended to allow an attorney’scharging lien to attach to awards and set-tlement proceeds received by clientsthrough alternative dispute resolutionmechanisms and settlement negotiations,whether or not a judicial proceeding hasbeen commenced.

DisclosureMatter of New York City Health &

Hosps. Corp. v New York State Commn. ofCorrection, 19 N.Y.3d 239, 946 N.Y.S.2d547 [2012]The Court held here that there is an

implied exception to the physician-patientprivilege (CPLR 4504) where the NewYork State Commission of Correctionseeks medical records in connection withits investigation into the death of aninmate at a health care facility not withinthe correctional system. The Commissionis required through its statutorily createdMedical Review Board, to make such aninvestigation pursuant to Correction Law§ 47 (1)(a).The inmate here had been incarcerated

at a NewYork City facility, and was trans-ferred to first to Elmhurst Hospital andthen to Bellevue Hospital, where he died.The Commission issued a subpoena toElmhurst Hospital to obtain the inmate’srecords. This motion was brought to quashthe subpoena pursuant to CPLR 2304 bythe Health & Hospitals Corporation,Elmhurst Hospital’s parent agency. HHCasserted the physician-patient privilege onthe inmate’s behalf, as well as an objec-tion under the Health InsurancePortability and Accountability Act(HIPAA). Supreme Court rejected theHIPAA argument, but accepted the privi-lege objection. The Appellate Divisionaffirmed, on the grounds that there is nopublic interest exception to the privilege.In the absence of an express exception inthe Commission’s favor, its duty to inves-tigate could not override the privilege.The Court of Appeals disagreed and

reversed. While there is no general pub-lic-interest exception to the physician-

CPLR Annual Update(Continued from page 17)

(Continued on page 19)

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patient privilege, such an exception canbe implied from the investigatory dutiesimposed on the Medical Review Board.Where an inmate dies in a correctionalhospital, the Board is statutorily entitledto the relevant medical records. TheLegislature could not have intended thatthe death of an inmate who happened todie in a non-correctional facility would beinvestigated less thoroughly than that ofan inmate who died in a correctional hos-pital, merely because the non-correctionalfacility, or someone acting as the inmate’spersonal representative, would not waivethe privilege. Moreover, the Board isexpressly granted other powers whichaffect the interests guarded by the physi-cian-patient privilege. Specifically, theBoard is entitled to the report of anyautopsy, and may even order its own,additional, autopsy. The effect of thesepowers shows that the protection of therecords kept by a non-correctional facili-ty, where those kept by a correctionalfacility would not be protected, would notserve the interests protected by the privi-lege as a whole.Finally, the Court held that HIPAA did

not prevent disclosure of the records. TheHIPAA Privacy Rule allows disclosure ofrecords required by law, including admin-istrative subpoenas such as the one here.

Judgments

J. D’Addario & Co., Inc. v EmbassyIndus., Inc., ___ NY3d ___, ___ NYS2d___, 2012 NY Slip Op 07850 [2012]Not for the first time, the Court of

Appeals reminds contract draftsmen to bewary of liquidated-damages clauses. If theparties intend the sum of liquidated dam-ages to accrue interest, the contract shouldsay so, explicitly. Otherwise, the liquidatedsum will be the entire damages, without thestatutory accrual-to-verdict interest at 9%.The contract dispute here can be simply

stated. This was a real-estate deal, with the$650K down payment held in escrow in an

interest-bearing bank account. The con-tract recognized that in the event of aPurchaser’s default, the exact sum of dam-ages would be difficult to compute, and sothe down payment and accrued interestwould be retained by Seller as liquidateddamages, with that amount being Seller’ssole remedy and Purchaser’s sole obliga-tion. Purchaser did default, and after abench trial Seller was awarded the downpayment, accrued bank interest, andanother $200K in statutory interest. TheAppellate Division viewed the question asone of discretion, holding that the awardof interest was “improvident,” and deletedthe award of interest.20The Court of Appeals affirmed, but not as

a matter of discretion. In contract cases,CPLR 5001 (a) requires the payment ofinterest from accrual of the cause of action tothe date of the verdict. Court ofAppeals caselaw makes clear that the purpose is to com-pensate the wronged party for the loss of useof its money, whether or not the breachingparty has obtained a benefit from it.21By the terms of their contract, the Seller

and Purchaser here had in effect opted outof the statutory interest scheme. The con-tract provided for the retention of thedown payment and interest as the parties’“sole remedy” and “sole obligation.” Itspecified that after the escrow agent paidover the retained sum, the parties were tohave “no further rights” against each other.Parties are allowed to specify their ownmethods of computing damages, so longas public policy is not involved, and so theremedy the parties here established asexclusive must be enforced.The Court adverted toManufacturer’s &

Traders Trust Co. v. Reliance Ins. Co., aninterpleader action where was the success-ful claimant sought interest from theunsuccessful ones.22 The Court held therethat the unsuccessful claimants had noobligation to pay statutory interest, sincethey never possessed the winner’s moneyand no money judgment was enteredagainst them. The Court there expresseddismay that the parties had not providedfor “meaningful” interest on the escrowedmoney, with the result that the successfulclaimant lost the use of its funds for four

years with little or no compensation in theform of interest.23The Court here repeated its concern, not-

ing that if the parties really intended for thebank interest on the escrow to be sufficient,they could have said so and avoided thislitigation (or, at least, the appellate portionof it). The language they did use, of course,eventually reached the same result.There was a dissent, by Judge Graffeo

joined by Judge Pigott, which would nothave read the contract language as rulingout statutory interest. The dissent alsopointed out that when Purchaser refused toconsent to Seller’s demand that the escrowagent be allowed to release the down pay-ment and accrued interest, it “effectivelyrestrained” Seller’s access to its money.The dissent viewed this as a separatewrong, subject to statutory interest regard-less of the contract language.

David H. Rosen served in the SupremeCourt, Queens County, as Principal LawClerk to Justice Arthur W. Lonschein from1980 to 2000, and as Court Attorney/Refereefrom 2001 to 2010. He is now in privatepractice. Any comments may be addressed todavidhrosenesq@gmail.com

1. PAL § 569-a2. Cruz v. City of New York, 302 A.D.2d 553,755 N.Y.S.2d 416 [2d Dept.,2003]; Burgess v.Long Island R.R. Authority, 79 N.Y.2d 777, 587N.E.2d 269 [1991]3. See, Rutigliano v. Board of Educ. of City ofNew York 176 A.D.2d 866, 866, 575 N.Y.S.2d339, 340 [2d Dept., 1991], construing a similarprovision in Education Law § 3813(2-b).4. Public Authorities Law § 666-b. The samecould be said for the Cayuga County Water andSewer Authority, subject to PAL § 1199-oooo.5. L. 2012, ch. 500, effective June 25, 20136. Note, however, that while an intentional tortsuch as assault normally carries a one year lim-itations period (CPLR 215), when the claim isagainst an entity subject to the year-and-90-dayperiod, it is the longer period which controls.See, Lewis v. Town of Richland, 77 A.D.3d1415, 910 N.Y.S.2d 332 [4th Dept., 2010][assault]; Ruggiero v. Phillips, 292 A.D.2d 41,739 N.Y.S.2d 797 [4th Dept., 2002] [libel]7. Why do they insist on doing it this way?Anyexisting caselaw, treatises or other authoritypointing to the existing paragraph 12 will nowbe pointing to something different. Why not

simply add the new section as paragraph 13?8. Siegmund Strauss, Inc. v East 149th RealtyCorp., 81 A.D.3d 260, 919 N.Y.S.2d 1 [1stDept., 2010]9. Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d285 [1976]10. Siegel, NY Practice § 530, at 940 [5th ed].To be fair, Professor Siegel suggested his ruleonly as as “not perfect, but helpful.”11. Karger, Powers of the New York Court ofAppeals § 9:5, at 304-305, 311 [3d ed rev]12. Funderburke v New York State Dept. ofCiv. Serv., 49 A.D.3d 809, 854 N.Y.S.2d 466[2008]13. Matter of Hearst Corp. v Clyne, 50 N.Y.2d707, 431 N.Y.S.2d 400 [1980]14. Matter of Citineighbors Coalition ofHistoric Carnegie Hill ex rel. Kazickas v NewYork City Landmarks Preservation Com’n, 2N.Y.3d 727, 778 N.Y.S.2d 740 [2004]; Matterof Dreikausen v Zoning Bd. of Appeals of Cityof Long Beach, 98 N.Y.2d 165, 746 N.Y.S.2d429 2002]15. Citineighbors Coalition, supra, 2 NY3d727, 73016. For those who find such things entertain-ing, there is a great deal of back-and-forthbetween the majority and dissent concerningjust who is stooping to emotional appeals, justwho is being disingenuous, whose argumentsare mystifying, and whose blithely disregardthe law.17. 95 A.D.3d 747, 748 at fn. 118. Matter of Diamond Waterproofing Sys.,Inc. v 55 Liberty Owners Corp., 4 N.Y.3d 247,253, 793 N.Y.S.2d 831 [2005], quoting Matterof Smith Barney, Harris Upham & Co. vLuckie, 85 NY2d 193, 202, 623 N.Y.S.2d 800[1995], cert denied sub nom. Manhard vMerrill Lynch, Pierce, Fenner & Smith, Inc.,516 US 811 [1995])19. Matter of Frasier v Board of Educ. of CitySchool Dist. of City of N.Y., 71 N.Y.2d 763, 530N.Y.S.2d 79 [1988]20. J. D’Addario & Co., Inc. v Embassy Indus.,Inc., 83 A.D.3d 1001, 921 N.Y.S.2d 550 [2dDept., 2011]21. Spodek v. Park Property DevelopmentAssociates, 96 N.Y.2d 577, 581, 733 N.Y.S.2d674 [2001]22. Manufacturer’s & Traders Trust Co. v.Reliance Ins. Co., 8 N.Y.3d 583, 838 N.Y.S.2d806 [2007]23. Manufacturer's & Traders Trust Co. v.Reliance Ins. Co., 8 N.Y.3d 583, 590

CPLR Annual Update(Continued from page 18)

CPLR Update 2012 - Part 2will appear in the next edition

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