THE
SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
DEDICATED TO LEGAL EXCELLENCE SINCE 1908
INSIDE…
MARCH 2016
Courts’ Black History Month event...16
_____________________________
Legal Articles
ADR ...............................................6
American Perspectives..................19
Bench Briefs ...................................4
Commercial Litigation....................3
Constitutional................................12
Consumer Bankruptcy ..................18
Corporate .....................................17
Court Notes.....................................6
Criminal ........................................14
Cyber ............................................13
Elder ..............................................5
Ethics ............................................14
Future Lawyers Forum ...................8
Health and Hospital ........................9
Inside the Courts.............................4
International Regulatory and
Enforcement..................................10
Land Use.........................................8
Practice Management ...................12
Pro Bono.........................................6
Real Estate ...................................11
Real Property ................................10
Tax ..................................................3
Trusts and Estates – Cooper .........15
Who’s your Expert........................18
_____________________________
Among Us.......................................7
Calendar: Academy ......................30
Calendar: SCBA .............................2
Academy News.............................30
CLE Course Listings ...............28-29
Freeze Frame ................................31
www.scba.org Vol. 31, No. 8 – March 2016
American Mock Trial Association Holds Its First
Regional Competition at Cohalan Court Complex
____________
By Harry Tilis tournament featured over two dozen meet with the team from the U.S.
teams from across the northeast, Military Academy at West Point.
With over 70 volunteers from the including entrants from Brown The Suffolk County bench generous-
Suffolk Academy of Law membership University, the US Coast Guard ly contributed with Judge Andrew
serving as judges and jurors, the Academy, Brandeis University and Tarantino and Judge Chris Ann Kelley
American Mock Trial Association held both Boston University and Boston presiding over trials all day Sunday.
its first ever regional competition at the College. Judge Pierce Cohalan, who is Several other members of the bench
Cohalan Court Complex in Central a member of the U.S. Army JAG Corps also donated half a day of their expert-
Islip. This undergraduate mock trial Reserve Component, stopped by to (Continued on page 20)
SCBA ANNUAL MEETING, ELECTIONS AND RECOGNITION
The 2016 Annual Meeting will be held on Monday, May 2, 2016 cates of appreciation, as will members who provided exemplary serv-
at the Bar Center, starting at 6 p.m. ice to the Association and profession for this administration. Attorneys
Included in the business to be transacted is the annual election, pur- who have practiced with honor and dignity for 60 and 50 years will
suant to Article VI Sec 2 of the SCBA’s Bylaws, the Nominating receive special recognition awards. The Diamond (60 years awards)
Committee has submitted the following report of the names of the can- will be presented to: Bernard L. Burton; Richard C. Cahn (past presi-
didates to be placed in nomination for the election as follows: dent 1981-’82); Gustave Fishel III (past president 1982-’83); John J.
President Elect .................................................Patricia M. Meisenheimer Hart (past president 1975-’76); Martin J. Kushnick; Hon. Daniel J.
First Vice President ............................................................Justin M. Block Loughlin; William F. Mackey, Jr.; William Hubert Plummer; Patrick J.
Second Vice President .......................................Lynn Poster-Zimmerman Purcell. Golden Anniversary (50 years) awards will be presented to:
Treasurer............................................................Hon. Derrick J. Robinson Hon. W. Gerard Asher; Hon. John C. Bivona; Roger H, Bohrer; John L.
Secretary....................................................................Daniel J. Tambasco Buonora (past president 2006-’07); Kathleen A. Carlsson; William P.
Directors (four) with terms expiring 2019.............................Hon. John J. Leo Griffin; Stephen A. Grossman; Hon. Donald Kitson; Ronad E. Lipetz;
.....................................................................................Patrick McCormick Harvey G. Lockhart; Gerald L. Lotto; Steven G. Pinks; Donald A.
.............................................................................Jennifer A. Mendelsohn Rettaliata; Thomas J. Spellman, Jr. (past president 1992-’93); Hon.
.......................................................................................Francine H. Moss Patrick A. Sweeney; Harold G. Trabold; Francis J. Yakaboski; Edward
Members of Nominating Committee (three) with terms expiring 2019 Zinker.
............................................................................................Leonard Badia The SCBA leadership is hoping for a wonderful membership turnout
..........................................................................................Donna England for the Annual Meeting – not only to conduct the Association’s busi-
.........................................................................................Jeanette Grabie ness, but to share in honoring those members who have served us so
Awards of recognition will be presented at the meeting. Outgoing well. Call the association for registration information or look for the
SCBA Directors and outgoing Academy Officers will receive certifi- eblast containing the registration information. – LaCova
PRESIDENT’S MESSAGE BAR EVENTS
Many Changes
________________
SCBA Annual Meeting
Family Court. For May 2, at 6 p.m.
By Donna England SCBA Great Hall
the past eight years
As we start the New Year off there Judge Whalen has
are many changes at hand. First and been part of the Peter Sweisgood Dinner
foremost is the appointment of the Family Court Bench Hosted by Lawyers Helping
Chief Judge of the Court of Appeals by and has handled all Lawyers Committee
Thursday, April 7, at 6 p.m.
Governor Cuomo, the Honorable Janet aspects of the court. Donna England Watermill Caterers, Smithtown
DiFiore. The former Court of Appeals We look forward to For further information, please
the new initiatives she will bring to this
Judges Judith S. Kaye and Jonathan contact the bar.
Lippman had a profound effect upon busy and hardworking court.
the judicial system in the State of New In the District Court, we congratu- The Annual Installation
York and it is with great anticipation late the Honorable Karen Kerr who, of Officers and Directors
that we welcome Judge DiFore, some- effective January 1, has been appoint- Friday, June 3, at 6 p.m.
one who has practiced law, sat as a trial ed Supervising Judge. This, too, is a Cold Spring County Club,
judge and has served as a county-wide very busy court that comprises not Huntington
district attorney. only the Criminal Courts in Central Please join your colleagues for
Closer to home, we congratulate the Islip, but also the outlying courts in what promises to be a wonderful
Honorable Theresa Whalen, who was each of the six districts handing civil event. For further information,
appointed Supervising Judge of the (Continued on page 27) contact Jane LaCova at the bar.
2 THE SUFFOLK LAWYER – MARCH 2016

Suffolk County Our Mission

Bar Association “The purposes and objects for which the Association is established
shall be cultivating the science of jurisprudence, promoting reforms
in the law, facilitating the administration of justice, elevating the
560 Wheeler Road • Hauppauge NY 11788-4357 standard of integrity, honor and courtesy in the legal profession and
Phone (631) 234-5511 • Fax # (631) 234-5899 cherishing the spirit of the members.”
E-MAIL: SCBA@SCBA.ORG

Board of Directors 2015-2016

Donna England .............................................................................President
John R. Calcagni .................................................................President Elect
Patricia M. Meisenheimer ............................................First Vice President
Justin M. Block........................................................Second Vice President
Lynn Poster-Zimmerman..............................................................Treasurer
Hon. Derrick J. Robinson.............................................................Secretary
Leonard Badia ....................................................................Director (2016)
Cornell V. Bouse.................................................................Director (2016)
Jeanette Grabie ...................................................................Director (2016)
Peter C. Walsh ....................................................................Director (2016)
Thank you
SCBA member Scott Michael Mishkin contributed the flagpole, which
was erected at our Bar Center when we moved in about 22 years ago. Scott
has been supplying the flags all of these years and we take this opportuni-
ty to recognize his generosity and contribution to our bar center. We are
most fortunate to have Scott as a devoted member of our wonderful bar
association.

Thomas More Group Twelve-Step Meeting

Vincent J. Messina, Jr. ........................................................Director (2017) Important Information from the Lawyers Helping Lawyers Committee
Luis Antonio Pagan ............................................................Director (2017)
Richard L. Stern .................................................................Director (2017) Every Wednesday at 6 p.m.,
Daniel J. Tambasco.............................................................Director (2017)
Parish Outreach House, Kings Road - Hauppauge
Harry Tilis...........................................................................Director (2018)
All who are associated with the legal profession welcome.
LAWYERS COMMITTEE HELP-LINE: 631-697-2499
Robin S. Abramowitz .........................................................Director (2018)
Laura C. Golightly..............................................................Director (2018)
Robert M. Harper ...............................................................Director (2018)
Arthur E. Shulman ......................................Past President Director (2016)
Dennis R. Chase..........................................Past President Director (2017)
THE SUFFOLK LAWYER
r
William T. Ferris........................................Past President Director ( 2018)

nda
Sarah Jane LaCova ........................................................Executive Director

Cale
LAURA LANE Publisher
Editor-in-Chief
All meetings are held at the Suffolk County Bar Association
SCBA Bar Center, unless otherwise specified. Please be aware that
dates, times and locations may be changed because of con-
Leo K. Barnes, Jr.
ditions beyond our control. Please check the SCBA website Alison Arden Besunder
in conjunction with
(scba.org) for any changes/additions or deletions which may Elaine Colavito
occur. For any questions call: 631-234-5511. Ilene S. Cooper The Suffolk County Bar Association
OF ASSOCIATION MEETINGS AND EVENTS Robert Flynn
Hillary A. Frommer The Suffolk Lawyer is published monthly, except for the months
MARCH James G. Fouassier of July and August, by Long Islander News under the auspices of
The Suffolk County Bar Association. © The Suffolk County Bar
01 Monday Appellate Practice, 6:00 pm, EBT Room Justin Giordano Association, 2016. Material in this publication may not be stored
03 Thursday Cohalan Cares for Kids Event, Great Hall, 6 pm – 8 pm Robert M. Harper or reproduced in any form without the express written permission
Andrew Lieb of The Suffolk County Bar Association. Advertising offices are
07 Monday Executive Committee Meeting, 5:30 pm, Board Room located at Long Islander News, 14 Wall Street, Huntington, NY
David A. Mansfield
08 Tuesday Matrimonial & Family Law and Family Court Committees, Irish 11743, 631-427-7000.
Patrick McCormick
Coffee Pub, W. Islip, NY, 6:00 pm
Lance R. Pomerantz
10 Thursday 18-b Task Force, 5:30 pm, Board Room Send letters and editorial copy to:
Lisa Renee Pomerantz
16 Wednesday Education Law, 12:30 pm, Board Room
SUFFOLK LAWYER
THE

Craig D. Robins
15 Tuesday Surrogate’s Court Committee, 6:00 pm, Board Room Allison C. Shields
17 Thursday Elder Law & Estate Planning, 12:15 pm, Great Hall 560 Wheeler Road
Barry Smolowitz
22 Tuesday Young Lawyers Committee, 6:00 pm, EBT Room Stephen L. Ukeiley
Hauppauge, NY 11788-4357
Louis Vlahos Fax: 631-234-5899
24 Thursday Supreme Court Committee, 5:30 pm, Board Room
Frequent Contributors Website: www.scba.org
28 Monday Joint Board Meeting – Suffolk & Nassau Bar Associations, 6:00
pm, Great Hall
The opinions, beliefs and viewpoints expressed by the various authors and frequent contributors of
The Suffolk Lawyer are theirs alone and do not necessarily reflect the opinions, beliefs and viewpoints
APRIL of The Suffolk Lawyer, The Suffolk County Bar Association, the Suffolk Academy of Law, and/or any
04 Monday Executive Committee Meeting, 5:30 pm, Board Room of the respective affiliations of these organizations.
05 Tuesday Appellate Practice Committee, 6:00 pm, Board Room
07 Thursday The Annual Peter Sweisgood Dinner, 6:00 pm, Watermill
Restaurant, honoring Eileen Travis, for further information call
The Suffolk Lawyer
USPS Number: 006-995 is published monthly except July and August by Long Islander
the Bar Center News, LLC, 14 Wall Street, Huntington, NY 11743, under the auspices of the Suffolk
12 Tuesday Surrogate’s Court, 6:00 pm, Board Room County Bar Association. Entered as periodical class paid postage at the Post Office at
12 Tuesday Matrimonial & Family Law and Family Court Committees, Irish Huntington, NY and additional mailing offices under the Act of Congress. Postmaster
send address changes to the Suffolk County Bar Association, 560 Wheeler Road,
Coffee Pub, 6:00 pm Hauppauge, NY 11788-4357.
14 Thursday Elder Law & Estate Planning Committee, 12:15 pm, Great Hall
14 Thursday Elder Law & Estate Planning, 12:15 pm, Great Hall
18 Monday Board of Directors Meeting, 5:30 pm, Board Room To Advertise in
The Suffolk Lawyer
Call 631-427-7000
19 Tuesday Young Lawyers, 6:00 pm, Board Room
20 Wednesday Education Law Committee, 12:30 pm, Board Room

Did You Say a Taxable Partnership?
_____________
By Lou Vlahos
According to a recently released IRS
analysis of tax return data, the number
of partnerships and partners in the U.S.
continues to increase, as do the total
receipts and the value of total assets for
all partnerships. LLCs classified as
partnerships account for the majority
of this growth.
These figures are a manifestation of
the fact that the partnership represents
the most flexible form of business enti-
ty: there are no restrictions on who
may be a partner; the only limitation
on the economic arrangement among
the partners is that it have substantial
economic effect; and partnerships do
not pay federal income taxes on their
income, but “pass through” any profits
and losses to their partners, who must
include those profits and losses on
their own income tax returns
As partnerships have grown in num-
Boundaries of Protection for Drafts of Expert Reports Pursuant to FRCP 26(b)(4)(B)
_________________
By Leo K. Barnes, Jr.
The 2010 amendments to the Federal
Rules of Civil Procedure modified Rule
26 to provide greater protection con-
cerning the discovery of communica-
tions and drafts of expert disclosure
reports.1 Specifically, Rule 26(b)(4)(B)
provides that drafts of any expert report
or disclosure is protected under Rules
26(b)(3)(A) and (B), regardless of the
form in which the draft is recorded.2
What constitutes a draft for purposes of
protection depends on the document
itself and the circumstances surround-
ing its creation and use.3
A recent decision in Deangelis v.
Corzine4 analyzes the boundary of the
protection afforded to drafts of expert
reports and disclosure under Rule
26(b)(4)(B). In Deangelis, Southern
District Magistrate Judge James
Francis evaluated whether specific
documents requested in a subpoena
duces tecum issued to a testifying
expert were drafts for purposes of pro-
tection under Rule 26(b)(4)(B).
During the deposition of defendants’
expert, the expert stated that he request-
ed a “write-up” and chart from defen-
dants, which he intended to use to assist
him with his report. The expert used
the summaries and write-ups he
received in the initial draft of his report,
but then excluded them from the final
report. Following the expert’s deposi-
tion, plaintiffs served a subpoena duces
tecum upon the expert requesting pro-
duction of the materials referenced dur-
ing the deposition. Defendants refused
THE SUFFOLK LAWYER – MARCH 2016 3
TAX
ber, size, and complexity, the partners, the IRS generally for reporting and audit purposes, part-
IRS has found it increasingly applied the audit procedures nership adjustments generally flowed
difficult to audit them and to for individual taxpayers, through to the partners for the year in
collect any resulting income auditing the partnership and which the adjustment took effect, rather
tax deficiencies, especially in each partner separately. For than the year under audit.
the cases of large partner- most large partnerships with
ships and tiered partnerships. more than 10 partners, the The BBA’s changes
In response to these diffi- IRS conducted a single Under the BBA, the TEFRA and
culties, Congress recently administrative proceeding ELP rules are repealed, and the part-
enacted the Bipartisan Budget (under the so-called nership audit rules are streamlined into
Act of 2015 (“BBA”), adding Louis Vlahos “TEFRA” rules, which were a single set of rules for auditing part-
a number of new tax compliance provi- adopted in 1982) to resolve audit issues nerships and their partners at the part-
sions to the code. A key feature of the regarding partnership items that were nership level.
BBA is that it imposes liability for any more appropriately determined at the Under the streamlined audit approach,
audit adjustments with respect to an partnership level than at the partner the IRS will examine the
earlier partnership tax year on the part- level. Under the TEFRA rules, once the partnership’s items of income, gain,
nership, rather than on those persons audit was completed and the resulting loss, deduction, credit, and the partners’
who were partners during the audited adjustments were determined, the IRS distributive shares, for a particular year
tax year. recalculated the tax liability of of the partnership (the “reviewed year”).
each partner in the partnership for Any adjustments (including interest and
Partnership audits the particular audit year. In the case penalties) will be taken into account by,
Prior to the BBA, three different of partnerships with 100 or more part- and will be collected from, the partner-
regimes existed for auditing partner- ners that elected to be treated as ship — not the reviewed year partners
ships. For partnerships with 10 or fewer Electing Large Partnerships (ELPs) (Continued on page 20)
COMMERCIAL LITIGATION
to produce the documents in Webster’s Dictionary, the The court then rejected plaintiff’s
requested arguing that the court found that draft is a argument that summaries and notes
documents were protected “preliminary sketch or rough created by an expert in drafting an
under the work product doc- form of a writing or docu- expert report may still be protected
trine and Rule 26. Plaintiffs ment, from which the final or from disclosure by Rule (26)(b)(4)(B),
subsequently moved to com- fair copy is made.”6 The court and likewise rejected the suggestion
pel disclosure of the docu- further held that whether a that only a draft of a complete report
ments. 5 document is a draft, depends is entitled to protection, finding to the
The court began its analy- on the circumstances of its contrary that portions of a report are
sis with a discussion of the Leo K. Barnes creation. In Deangelis, the equally entitled to protection as limit-
application of Rule 26 before expert made clear that he ing protection to entire reports would
and after the 2010 amendments. Prior requested the documents to aid him interfere with experts’ drafting, which
to the amendments, courts read Rule with his report and anticipated that they is what the 2010 amendments sought
26(a)(2) to require disclosure of all would be included in the report. to avoid. Finally, the court dismissed
draft reports and all communications During an in camera review of the doc- the plaintiffs’ argument that experts
between the attorney and expert wit- uments at issue, the court confirmed the could undermine the discovery
nesses. This broad interpretation cre- expert had in fact added the documents process by simply placing discover-
ated a real danger of disclosing attor- to his draft report. This evidence was able information into a draft to avoid
ney work product, and led to problems sufficient to suggest that the documents disclosure, reasoning that although
for attorneys and testifying experts were created “as preliminary versions this may be possible in the abstract,
who struggled to strike a balance of portions of the expert report.”7 (Continued on page 25)
between working effectively and pro-
tecting work product. In an attempt to
resolve this issue, Rule 26(a)(2) was
amended in 2010 and now limits dis-
closure to all “facts or data” consid-
In Memoriam
ered by an expert witness, rather than It is with profound sorrow, the Board of Directors of the Suffolk County
all “data or other information.” Bar Association record the sudden passing of U.S. Supreme Court Senior
Additionally, Rule 26(b)(4)(B) now Justice Antonin Scalia. The country has lost an influential and most respect-
addresses concerns about the revela- ed icon on the US Supreme Court Bench.
tion of attorney work product through Justice Scalia was a legal giant who devoted his energies to defending the
expert discovery, and provides that Constitution and the Rule of Law. He was incredibly well respected by his
drafts of any report or disclosure colleagues. He left an indelible mark on history and will be remembered as
required under Rule 26(a)(2) are pro- one of the most important people in the history of the US Supreme Court.
tected from discovery. The legal profession has benefited greatly by the many contributions of
The court first considered whether this extraordinary jurist and our deepest sympathy is extended to his wife
the documents requested by plaintiffs and family during this difficult time.
were in fact drafts for purposes of pro- Donna England
tection under Rule 26(b)(4)(B). Citing President
to the plain meaning of the term “draft”
4 THE SUFFOLK LAWYER – MARCH 2016
_______________
By Elaine Colavito
SUFFOLK COUNTY SUPREME
COURT
Honorable Paul J. Baisley, Jr.
Motion for leave to enter a default
judgment against defendant Brodbeck
denied; neither the complaint nor plain-
tiff’s affidavit in support of the motion
contained an allegation as to what
caused her to fall in the parking lot.
In Kelly Amantea v. BMB
Management, LLC & Jon Neil
Brodbeck, Index No.: 2572/2015 decid-
ed on August 18, 2015, the court denied
the motion for leave to enter a default
judgment against defendant, Brodbeck.
The court stated that on a motion for
leave to enter a default judgment based
on a defendant’s failure to appear or
answer the complaint, a plaintiff is
required to submit proof of service of
the summons and complaint, proof of
the facts constituting the claim against
the defendant, and proof of the defen-
dant’s default. The court continued
and pointed out that while a verified
complaint may be submitted as an affi-
________________________
By Hon. Stephen L. Ukeiley
Assault Conviction Reversed Due to
Trial Errors
In People v DeJesus, defendant was
convicted by a jury of assault in the
first degree and ultimately sentenced as
a second felony offender to 20 years
incarceration. On appeal, the Appellate
Division, First Department unanimous-
ly reversed the judgment and sentence
due to multiple errors at trial, including
the denial of the defendant’s right to
confront witnesses, misstatements dur-
ing summations and inappropriate
comments made by the trial judge dur-
ing jury deliberations.
Sixth Amendment
The Sixth Amendment guarantees a
criminal defendant’s right to confront
each witness who testifies against the
accused in the form of cross-examina-
tion. This right was extended to state
criminal proceedings by the Fourteenth
Amendment (see Pointer v Texas, 300
U.S. 400 [1965]).
In DeJesus, the trial court permitted
hearsay statements falsely suggesting
that multiple individuals had identified
the defendant when the victim was the
lone witness (People v DeJesus, 2015
N.Y. App. Div. LEXIS 9049 [1st Dept
Dec. 8, 2015]). The issue arose during
the testimony of the investigating
detective in charge. Over counsel’s
objections, the detective testified he
learned of the defendant’s nickname
and whereabouts from two informants,
neither of whom were called to testify
BENCH BRIEFS
davit of the facts constituting the court granted the motion, ly the motion was granted. However,
the claim, it must allege which sought summary judg- with regard to the legal fee request, the
enough facts to enable a court ment in lieu of a complaint. court found that although Section 5(E)
to determine that a viable In this action, the court of the promissory note entitled plaintiff
cause of action existed, and a noted that plaintiff submitted to reasonable attorneys fees for
person having personal proof that the defendants bor- enforcement of the provisions of the
knowledge of the facts must rowed from plaintiff the note, in the event of the defendants’
verify it. In denying the amount of $30,000.00 at an default, plaintiff’s counsel had not sub-
application, the court rea- interest rate of 12 percent per mitted any proof of reasonable attor-
soned that the plaintiff failed Elaine Colavito annum, pursuant to the terms neys’ fees incurred in connection with
to allege sufficient facts to allow the of a promissory note dated April 30, the matter. As such, the request for
court to ascertain whether she had a 2009, and that defendants had failed to $5,000.00 in attorneys’ fees was
viable negligence claim against the make any of the payments due thereun- unsubstantiated and denied without
defendant, as neither the complaint nor der. In relevant part, the court stated prejudice.
plaintiff’s affidavit in support of the that CPLR §3213 provides that when
motion contained an allegation as to an action is based upon an instrument Motion for default judgment denied;
what caused her to fall in the parking for the payment of money only or upon failure to submit evidentiary proof of
lot. Accordingly, the motion was any judgment, the plaintiff may serve compliance with the personal service
denied. with the summons a notice of motion provisions of CPLR §308; failure to
for summary judgment and the sup- submit an affidavit: stating whether or
Honorable Peter H. Mayer porting papers in lieu of a complaint. not the defendant is in military service.
Motion for summary judgment in The summons served with such motion In Brentwood Plaza, LLC v. Imad
lieu of complaint granted; counsel fee papers shall require the defendants to Alden Yousef Nasser Mansour, Talal
application denied; no proof of reason- submit answering papers on the motion Rashid and Ali Mohammed, Index No.:
able attorneys’ fees incurred in con- within the time provided in the notice 16045/2014 decided on April 29, 2015,
nection with the matter. of motion. the court denied the portion of the
In Marty Borenstein v. Gina Lienick Since the plaintiffs’ motion was motion which sought a judgment
& Susan Lienick, Index No.: unopposed, the uncontroverted facts against defendants, Imad Alden Yousef
18501/2014 decided on May 4, 2015, were deemed admitted, and according- (Continued on page 21)
INSIDE THE COURTS
at trial, who described the shot the victim as a result of a lowing week, although the jurors were
“fleeing shooter.” The prose- dispute over a mountain bike told at selection that the case would not
cution corroborated the defendant “had nothing to do go beyond the week. The trial court then
detective’s testimony with the with” after the trial court had denied the request of two jurors to be
victim’s statement that the precluded the victim from tes- excused if deliberations extended into
defendant went by the same tifying in essentially the same the following week — one was starting
nickname and introduced a manner. Of note, the Appellate a new job and the other had to care for
photograph of the nickname Division determined that his minor children. Within nine minutes
tattooed on defendant’s arm. defendant had not waived this of the denial, the jury returned a unani-
The Appellate Division Stephen L. Ukeiley issue when defense counsel mous verdict of guilty (id. at *4-5).
concluded the testimony went beyond subsequently cross-examined the victim The Appellate Division concluded
“merely explain[ing] the police investi- about the mountain bike, which was per- that under these circumstances the ver-
gation, [and, as a result,] improperly mitted as a curative measure for the ini- dict was “improperly coerced” and the
provided strong evidence on the central tial testimony, or argued during summa- combination of errors were not harm-
issue of identification” (id.). In other tion that the victim’s testimony belied less. Counsel may be inclined to con-
words, although the informants credibility (id. at *3). sider the ramifications of a compro-
observed the defendant “fleeing,” there mised verdict and its impact on the out-
was no credible evidence that they had Jury deliberation come of a trial.
in fact witnessed the defendant partak- The Appellate Division also conclud-
ing in a criminal act. Moreover, the ed it was an error to refrain from grant- Note: The Honorable Stephen L.
failure to call the informants as wit- ing a mistrial during jury deliberation Ukeiley is a Suffolk County District
nesses precluded cross-examination because the verdict was made “under Court Judge. Judge Ukeiley is also an
regarding their observations, and thus coercive circumstances.” This contro- adjunct professor at the Touro College
violated defendant’s right of confronta- versy centered upon the trial court’s Jacob D. Fuchsberg Law Center and
tion (id. at *2). statements in response to two notes New York Institute of Technology, and
from the jury claiming that they were the author of numerous legal publica-
Summations deadlocked. Initially, the trial court tions, including his most recent book,
During closing arguments, the pros- responded that the jury had only delib- The Bench Guide to Landlord &
ecutor expounded upon the confronta- erated a “short time” when in fact they Tenant Disputes in New York (Second
tion error by arguing in violation of the had been deliberating for several days. Edition)©.
trial court’s instruction that the inform- The trial court further instructed the jury
ants’ statements constituted “evi- that they would have to stay late to con- * The information contained herein
dence” that the defendant was the tinue deliberations on two successive is for informational and educational
assailant. Additional summation errors days — a Thursday and Friday — and purposes only. This column should in
included “emotional appeals, safe that the members of the jury should no way be construed as the solicita-
streets arguments and denigration of consider the extension a “tremendous tion or offering of legal or other pro-
defense counsel.” accommodation.” Lastly, the trial court fessional advice. If you require legal
Defendant’s fair trial rights were fur- informed the jury that if a verdict were or other expert advice, you should
ther held to have been violated when the not reached by week’s end, delibera- consult with an attorney and/or other
prosecutor argued that the defendant tions would be extended into the fol- professional.

Working Elder-Caregivers — Help Your Staff and Your Firm
_____________________
By Jennifer B. Cona, and
Melissa Negrin-Wiener
Businesses, including law firms, are
beginning to feel the workplace impact
of issues related to working elder-care-
givers. Over 65 million Americans, or
29 percent of all U.S. households, pro-
vide care for an adult family member.1
The growing demographic problem is
two-fold: the elderly are living longer
and people are working longer/retiring
later. This combination results in a
workforce that is struggling to main-
tain jobs while providing care for
aging parents and loved ones.
Elder-caregiving costs employers
$33.6 billion annually in lost produc-
tivity.2 Absenteeism costs the U.S.
economy an estimated $25.2 billion.3
Working elder-caregivers routinely
lose work time and wages due to pro-
viding care for an aging loved one. On
the employer’s side, businesses are
impacted by decreased productivity,
absenteeism, downtime and turnover.
Employees caring for ill, elderly or dis-
abled loved ones must address such
issues as a loved one’s hospitalization,
coordinating elder care services, and
handling emergency elder caregiving
THE SUFFOLK LAWYER – MARCH 2016
ELDER LAW
responsibilities.
This of course
results in personal
phone calls on the
job, use and abuse
of leave time, work
hour adjustments,
missed deadlines,
poor work quality,
sporadic atten- Jennifer B. Cona
dance, and prolonged or frequent dis-
appearances from workstations.
“Presenteeism” is also an issue, that is,
the employee is physically present on
the job but is mentally somewhere else.
When work conflicts with elder-
caregiving, employees choose to make
changes in their work life.
Approximately 68 percent of elder-
caregivers report making work accom-
modations, including arriving
late/leaving early, taking time off, cut-
ting back on work hours, changing
jobs, or stopping work altogether.4
Law firms need to consider the tools
and support mechanisms they will put
in place to help working elder-care-
givers, such as support groups, on-site
emergency elder care, access to Elder
Law attorneys and access to communi-
ty resources.
In today’s econo-
my, employers must
focus on retaining
capable and knowl-
edgeable employees
and having them
achieve their high-
est level of perform-
ance. Turnover often
Melissa Negrin-Wiener results in a staff
lacking in expertise, which can harm a
law firm’s ability to retain clients and
provide high quality legal services.
High turnover can become expensive
for firms to manage, and it can signifi-
cantly lower morale in the workplace. If
a skillful and competent employee
requires flexibility in the workplace due
to elder-caregiving needs, the employer
should do all that it can to be supportive.
Interestingly, the experience of
working elder-caregivers differs from
that of workers with childcare respon-
sibilities. Research shows that working
elder-caregivers report having less
access to flexible work options to carry
out their work and caregiving responsi-
bilities, and they perceive significantly
lower job security than workers with
childcare needs.5
Many employees are hesitant to
5
share their elder-caregiving issues with
their supervisors for fear that it might
change the supervisor’s impression of
them or cause their supervisor to take
away job responsibilities. This is why
it is important to pay attention to warn-
ing signs, such as changes in personal-
ity and work product, including poor
work quality, an increase in personal
telephone calls, lack of concentration,
reduced productivity, out of character
emotional outbursts, arriving late or
leaving early, sporadic attendance,
missed deadlines and use of unpaid
time off.
If it becomes evident that a valued
employee is an elder-caregiver, the
employer should consider accommo-
dating their short term needs by being
flexible with their working hours or
location, such as by permitting
telecommuting. It is important to stress
that these changes are temporary and
the employee should be given a date
upon which the accommodations will
end. It may be necessary to temporari-
ly assign better-suited work for that
employee. For example, if the job
requires travel or late hours, perhaps
that work can be temporarily re-
(Continued on page 22)
6 THE SUFFOLK LAWYER – MARCH 2016

PRO BONO

Pro Bono Attorney of the Month – Stephen R. Hellman

_______________
By Ellen Krakow
The Suffolk Pro Bono Project (the
Project) is pleased to honor Stephen R.
Hellman once again, as its Pro Bono
Attorney of the Month. This is Mr.
Hellman’s third time receiving this
honor. It is his recent work for several
of the Project’s most vulnerable matri-
monial clients that has earned him this
distinction once again.
Mr. Hellman has been a solo Family
and Matrimonial Law attorney in
Suffolk County for his entire legal
career. His practice is located in
Eastport, New York and his particular
expertise is representing survivors of
domestic violence and financial
exploitation. The Pro Bono Project
has taken advantage of Mr. Hellman’s
expertise, often referring to him
domestic violence clients.
Setting Mr. Hellman apart as a Pro
Bono Project volunteer is his unlimit-
ed willingness to accept new pro
bono referrals, even when several of
his prior Project referrals are still
ongoing, and regardless of the new
matter’s complexity. It is not uncom-
mon for Mr. Hellman to not only
assist his pro bono clients in the
divorce action, but also represent
them in ancillary Family While a Hofstra law stu- appreciate how difficult it must be for
Court or District Court pro- dent, Mr. Hellman clerked a person to be dealing with a divorce
ceedings. He does so even for a Patchogue Village and not able to afford a lawyer. I feel
though the Project does not Court judge. During the it’s important for attorneys to give
require its attorneys take on clerkship, he came to know back to the community. This is a way
such additional responsibil- an attorney who frequently I can do that.” He added, “And, I
ities. appeared in the village court, like the work. I enjoy being in court,
“It is his very comprehen- and who ultimately became and the Pro Bono Project’s cases are
sive approach to assisting his his mentor, teaching Mr. always interesting.”
pro bono clients that makes Hellman key aspects of mat- In addition to operating his busy
Mr. Hellman such a special Stephen R. Hellman rimonial and family law. solo practice, Mr. Hellman is the
asset to our program,” notes Maria With this knowledge, Mr. Hellman father of four children, Ashley,
Dosso, Nassau Suffolk Law Services’ was able to join the Suffolk County Seaver, Matthew and Jared, and the
Director of Communications and 18b and law guardian panels soon grandfather of two, Alex and Alyvia.
Volunteer Services. “He is one of those after becoming admitted in 1998. His He is also a sports fan and spends his
unique volunteers who goes above and 18b and law guardian cases provided free time following the Islanders, the
beyond what is required. We cannot him with a great deal of valuable Yankees and the Long Island Ducks.
thank him enough for his contribu- experience that was critical as a new The Pro Bono Project is most grate-
tions.” attorney. ful for Mr. Hellman’s incredible gen-
The practice of law is Mr. Hellman’s Mr. Hellman joined the Pro Bono erosity and the excellent advocacy he
second career. After earning his BA at Project not long after starting his provides to every referred client. For
Stony Brook University in 1983, Mr. practice. Over the years, he has suc- this reason, it is with great pleasure
Hellman worked in law enforcement cessfully protected the rights and that we honor him again as the Pro
for 10 years as part of SBU’s interests of numerous Project clients, Bono Attorney of the Month.
University Police. He received multi- representing both plaintiffs and The Suffolk Pro Bono Project is a
ple “meritorious service awards” and defendants. He currently has seven joint effort of Nassau Suffolk Law
“excellent service awards” during active Pro Bono Project matrimonial Services, the Suffolk County Bar
those years. He left the police force in cases. Several of these clients are vic- Association and the Suffolk County
1993 after being injured on the job. tims of physical abuse or severe Pro Bono Foundation, who, for
Immediately thereafter, Mr. Hellman financial exploitation. When asked many years, have joined resources
enrolled in Hofstra Law School, earn- why he accepts so many Project refer- toward the goal of providing free
ing his J.D. in 1997. rals, Mr. Hellman responded, “I (Continued on page 24)

ADR

Selecting the Right Mediator for Your Client’s Dispute

______________________
By Lisa Renee Pomerantz resolutions. Generally speak- approach is desired. attorney in Suffolk County, New York.
ing, evaluative mediators are Understanding these differences is She is a mediator and arbitrator on the
While attorneys understand expected to have sufficient essential to selecting the right media- AAA Commercial Panel and serves on
that different attorneys con- subject matter expertise to tor for your client’s dispute. the Advisory Council of the
centrate their practices in dif- provide such evaluations. Commercial Section of the Association
ferent fields and have different Finally, directive mediators Note: Lisa Renee Pomerantz is an for Conflict Resolution.
skill sets, they may not realize see themselves more as
that mediators differ in their “advisors” to the parties in COURT NOTES
approaches, areas of subject fashioning a resolution based ______________________
matter expertise, and skill sets. Lisa Pomerantz not only on the legal issues By Ilene Sherwyn Cooper felony, aggravated criminal
There are several different but also the relevant interests contempt, a class D felony,
general approaches to mediation. and circumstances. Appellate Division- and unlawful imprisonment
Facilitative mediators focus on improv- Mediators’ professional backgrounds Second Department in the first degree, a class E
ing the communication between the and skill sets also influence their felony, for which he was sen-
parties so they can better resolve the approaches as mediators. For example, Attorney reinstatements tenced, inter alia, to five
dispute themselves. Facilitative medi- mediators with a background in mental granted years of imprisonment, and a
ators generally avoid expressing an health or counseling may be quite effec- The following attorneys 10 year period of post-release
opinion on the merits or suggesting tive at mediating disputes arising have been reinstated to the supervision. Accordingly, by
solutions. Transformative mediators between divorcing spouses over parent- roll of attorneys and coun- Ilene S. Cooper virtue of his felony convic-
focus on the parties and their relation- ing, child custody and mediation. selors-at-law: tions, the respondent was disbarred
ship rather than on the particular dis- Retired judges, accustomed to deciding John Joseph Leonard from the practice of law in the State of
pute, believing that if the parties are the merits of cases, may be quite adept New York.
empowered and their relationship at evaluating the merits of the parties’ Attorneys disbarred
transformed, they will be able to positions and helping them negotiate a Steven M. Drapala, admitted as Note: Ilene S. Cooper is a partner
resolve the current dispute and any settlement based on the expected value Steven Mark Drapala: On November with the law firm of Farrell Fritz, P.C.
future issues. Evaluative mediators are of their case. Finally, transactional 21, 2014, the respondent pleaded where she concentrates in the field of
willing to point out to the parties the attorneys, experienced at setting the guilty in the Supreme Court, Nassau trusts and estates. In addition, she is a
strengths and weaknesses of their stage for productive negotiations and at County, to ten felony counts, including past president of the Suffolk County
respective cases so they can better devising various approaches to structur- rape in the first degree, a class B vio- Bar Association and past chair of the
anticipate the likely outcome in arbitra- ing business relationships and transac- lent felony, aggravated sexual abuse in New York State Bar Association Trusts
tion or litigation and suggest potential tions, might be useful if a directive the first degree, a class B violent and Estates Law Section.
 THE SUFFOLK LAWYER – MARCH 2016 7

SIDNEY SIBEN’S AMONG US

On the Move… Scott M. Karson has been

Christopher B. Abbott has
become a partner at Smith,
Finkelstein, Lundberg, Isler
and Yakaboski, LLP of
Riverhead.
Announcements, Jacqueline Siben
Achievements, &
Accolades…
Former Justice A. Gail Prudenti
was appointed chair of the New York
State Permanent Judicial Commission
on Justice for Children, succeeding the
late retired chief Court of Appeals
Judge Judith Kaye in that role.
Forchelli, Curto, Deegan, Schwartz,
Mineo & Terrana, LLP partner
Douglas W. Atkins, has been selected
by the Long Island Business News for
the ‘40 under 40 Award Class of 2016.
He was recognized for his leadership in
business, and commitment to the Long
Island community.
elected treasurer of the New
York State Bar Association.
He will take office on June 1,
2016. Scott is a former presi-
dent of the SCBA (2004-05)
and currently serves as vice
president of the New York
State Bar Association for the
Tenth Judicial District.
Congratulations…
To Honorable William J. Condon,
who was inducted as the president of
the New York State Supreme Court
Justices Association.
To the Honorable Theresa Whelan
who was appointed Supervising Judge
of the Suffolk County Family Court
and to the Honorable Karen Kerr who
was appointed Supervising Judge of
the District Court. The appointments
were made by Chief Administrative
Judge Lawrence K. Marks.

Congratulations to Touro
Dean Patricia Salkin
Touro Dean Patricia Salkin was the recip-
ient of the New York State Bar Association’s
Ruth G. Schapiro Award. This coveted
award, which embodies the spirit of Ruth G.
Schapiro, is given annually by the
Committee on Women in the Law and was
presented to Dean Salkin by NYSBA’s pres-
ident David Miranda at their annual meeting
in New York City on Jan. 29, 2016. The
award was created in 1992 for the late Ruth
G. Schapiro, a nationally regarded tax
lawyer, who was the first chair of the
Committee on Women in the Law.

Congratulations to the Hon. Deborah Poulous

Congratulations to the
Honorable Deborah Poulous,
Class of 1988, who was the
recipient of the Keith
Romaine Elected Official
of the Year Award presented
at the 2016 Touro Law
Center Alumni Winter
Reception, held at the
Sheraton New York Hotel
on Jan. 28. The award is
presented in memory of
Touro Law Center graduate
Keith Romaine, who passed
away suddenly in 2009, and
in recognition of his inter-
est and passion for govern-
ment, Touro Law created an award in his name to be presented annually to a
graduate who serves the public as an elected official.
 8 THE SUFFOLK LAWYER – MARCH 2016

FUTURE LAWYER’S FORUM

Pro Bono and Experiential Learning — Is There a Disconnect?

_________________
By George Pammer there is no particular credit Touro Law School has with both women and discuss a lack of
requirement. been ahead of the curve on access to justice on Long Island.
As has been written previously in Pathway 2 is Certification these tasks for some time. All Ms. Dosso, the Director of
this column, the Court of Appeals in of Credit Acquisition by the students enrolled at Touro in Communications and Volunteer
their authority as Judicial individual law schools. This 2015 are required to com- Services, noted she would certainly be
Administration has authorized another requires the completion of 15 plete a clinic in their last year willing to take on more students to work
hurdle for law students to jump on credits of practice-based of law school. Touro has also in a pro bono atmosphere while at the
their path towards admission to the experiential coursework. This established an Intermediate same time providing those students with

9 New York Bar. Starting with the

incoming class of 2016, every appli-
cant for admission to practice shall
demonstrate that the applicants pos-
sess experiential skills. This new
requirement is in addition to the new
Uniform Bar Exam, the online semi-
nars and class for the New York por-
tion of the exam, the Multi-State
Professional Responsibility Exam and
the 50-hour pro bono requirement.
Details for the Experiential Learning
requirement can be found at 22 NYCRR
520.18. The regulation provides several
pathways to achieve the required goal.
In Pathway 1 the law school would cer-
tify competency. The school would have
to develop, plan, and incorporate into
the curriculum, a sequence of classes or
programs that addresses professional
competencies. The areas of develop-
ment would be left up to the schools to
identify for basic competence and ethi-
cal participation. Under this Pathway
would include American Bar
Association defined experien- George Pammer
Skills Requirement for all
students. This requirement
tial courses. Courses have been defined has each student take a practice based
rather broadly and can include profes- class and requires the successful com-
sional labs, doctrinal courses, clinics, pletion of practice-based tasks such as
the experiential learning the New York
judiciary just instituted as a require-
ment. Unfortunately, with the require-
ments that are being placed on law
schools, Ms. Dosso asserts there is not
field placements, externships and simi- writing motions. enough time or money to complete such
lar tasks. Some of these tasks are limit- The State Bar and the New York Bar a program on a large scale. Law schools
ed as to how many credits can count Foundation has created a joint task must have a classroom component and
toward the experiential learning credits. force in an attempt to raise funding for the attorneys at Nassau/ Suffolk Law
This Pathway could severely restrict a access to justice initiatives1. There cer- Services simply do not have enough
law student’s ability to take electives. tainly is a deficit of availability of legal hours in a day to add such work to their
Pathway 3 is a paid or unpaid services for those that cannot afford schedules. Yet, Nassau/Suffolk could
apprenticeship that may be completed such. This task force is comprised of certainly use the help.
in any jurisdiction where the supervis- attorneys from all over New York State, The structure of the experiential
ing attorney is in good standing in that except Long Island, which certainly has learning requirements and the onus
jurisdiction. The ability to complete its own unique needs in pro bono work. being placed on law schools in such a
such a program in any jurisdiction The Nassau Suffolk Law Services limited amount of time truly eliminate
would seem to be contradictory to the Committee, Inc. is all too familiar with students from being an important cog
ability of gaining experiential learning the lack of affordable representation on in providing access to justice to those
to practice in New York. Pathways four Long Island and a lack of funding for that simply cannot afford representa-
and five are very limited in their appli- pro bono work according to Maria tion. The clinics requirement now
cation to students and essentially apply Dosso and Melissa Greenberger of included in the curriculum at Touro
to the Pro Bono Scholars Program and Nassau Suffolk Law Services may also limit the need for external
those that are LLM students. Committee Inc. I was able to sit down (Continued on page 24)

LAND USE LAW

Zoning Boards of Appeal – How Much Variance Relief is Too Much?

_________________
By Vincent Messina and Town Board route one
must take in seeking an
Often times, land use practitioners amendment to the zoning
are faced with the choice between ordinance. However, this
applying for variance relief or making sometimes leads to requests
a change of zone application. The for very significant variance
variance option is usually more relief, which can lead to
appealing, since it can generally be opponents of the application,
accomplished faster, since it only or even the ZBA itself, to ask
involves an appearance before the the question: At what point Vincent Messina
Zoning Board of Appeals (ZBA), does a variance application
rather than both the Planning Board go too far, and really become, due to
SAVE THE DATE
The SCBA Installation Dinner
Dance will be held on Friday, June 3,
2016, at 6 p.m. at the Cold Spring
Country Club, Cold Spring Harbor,
NY.
The dinner will honor and install
the new SCBA President, John R.
Calcagni, officers and directors.
Tickets are $150 person. For further
information call the bar association.
its magnitude, a change of
zone application requiring
relief from the Town Board?
There is no question that
the under the statutory scheme
provided for in the laws of the
State of New York, the land
use policy of a town is set by
the duly elected members of
the Town Board via enactment
of a zoning ordinance.
The role of Zoning Board of Appeals
in land use policy is to protect the zon-
ing system established by the legisla-
tive body (the Town Board). The
analysis undertaken by the Court of
Appeals in Commco, Inc. v. Amelkin,
62 N.Y.2d 260, 465 N.E.2d 314 (1984)
with respect to this issue remains the
guidepost for zoning boards:
“It is undisputed that under this
State’s statutory scheme, the
Zoning Board has been vested with
the exclusive power to grant or
deny, in the first instance, a variance
from the zoning ordinances (see
Town Law, §§ 261, 267, subd. 2;
Jaffe v. Burns, 64 A.D.2d 692, 407
N.Y.S.2d 577; Blumberg v. Town of
North Hempstead, 114 Misc.2d 8,
450 N.Y.S.2d 698) which are
passed and enforced by the Town
Board (see Town Law, § 261).
When performing this function, as
contrasted to its function of review-
ing determinations by town admin-
istrative officials (see Town Law, §
267, subd. 2), the Zoning Board acts
in an administrative capacity inde-
pendent from the Town Board. The
respondent Zoning Board, while an
agency of the municipality, never-
theless possesses an independent
and direct interest . . . as a repre-
sentative of the public interest in
protecting the zoning system set up
by the Town Board”
Commco, Inc. v. Amelkin, 62 N.Y.2d
260, 266, 465 N.E.2d 314, 317
(1984)(emphasis added)(citations and
footnotes omitted).
As one commentator has stated:
“The zoning board of appeals is an
administrative body, not a legisla-
tive one. Accordingly, it is without
authority to amend the zoning
ordinances that it administers.
Zoning boards of appeals were
(Continued on page 27)
 THE SUFFOLK LAWYER – MARCH 2016 9

HEALTH AND HOSPITAL LAW

A Significant Case of General Interest

____________________
By James G. Fouassier perhaps common law negli- allegedly did not do. risk of harm” and the balancing of
gence) risks. The defendants moved to factors such as the expectations of
A recent decision from our Court of Ms. Walsh, the patient, was dismiss, raising what we all the parties and society in general,
Appeals should be of interest to the discharged from the hospi- were taught was a black-letter the proliferation of claims, and
bench and bar generally, as it presents tal’s emergency department defense: they did not owe the public policies affecting the duty
issues that significantly transcend what shortly after treatment with plaintiffs a duty of care proposed herein tilts in favor of
otherwise might be considered of inter- an opioid painkiller adminis- because the plaintiffs were establishing a duty running from
est only to the specialized health law tered intravenously. Less than third parties to the treatment defendants to plaintiffs under the
practitioner. a half hour after discharge rendered to the patient. facts alleged in this case.
It is the high court’s dramatic and Ms. Walsh was involved in a James G. Fouassier Plaintiffs then cross-moved for [T]o take the affirmative step of
potentially game-changing decision in car crash, crossing a double yellow leave to amend to assert a cause of action administering the medication at
Davis v. South Nassau Communities line. Observations were to the effect for common law negligence. The trial issue without warning Walsh about
Hospital, 2015 N.Y. LEXIS 3897; that she was in a state of disorientation court granted the motions to dismiss and the disorienting effect of those
2015 NY Slip Op 09229, Dec. 16, and under the influence of a drug. Later denied the cross-motion to amend. As drugs was to create a peril affecting
2015, a medical malpractice case. expert testimony would adduce that the might be expected the Appellate every motorist in Walsh’s vicinity.
While the majority expressly limited its particular drug, Dilaudid, had two to Division affirmed, finding that only Ms. … Defendants are the only ones
holding to the facts and offered that the eight times the painkilling effect of Walsh had a “physician-patient relation- who could have provided a proper
decision only minimally expands the morphine. The victims of the crash ship” and thus the defendants owed no warning of the effects of that med-
current state of the law, even a cursory brought suit against the hospital and duty of care to the injured plaintiffs. ication. Consequently, on the facts
examination of the ruling demonstrates the treating physicians, alleging that The Court of Appeals reversed. The alleged, we conclude that defen-
that an application of the rationale of they were under a duty prior to her dis- rationale and analysis of the court — dants had a duty to plaintiffs to
the court to other fact patterns invari- charge to warn Ms. Walsh of the effects and the dissenting opinion — should be warn Walsh that the drugs admin-
ably may result in a substantial, if not of the drug and that it could affect her required reading for every health care istered to her impaired her ability
dramatic, expansion of a health care ability to operate a motor vehicle safe- and personal injury attorney. What the to safely operate an automobile.
provider’s medical malpractice (and ly, something which the defendants court appeared to do is approach the
question from the perspective of who Anticipating an outcry, the court
created the risk: attempts to ameliorate the breadth
Wanted: SCBA FunRun This is an instance in which defen-
and the possible effect of this novel
ruling by making three “observa-
Team Members dants’ “relationship with … the
tortfeasor… place[d] [them] in the
best position to protect against the
tions.” First, all the ruling requires is
that a medical provider “warn” the
(Continued on page 23)
The Suffolk County Bar Association is looking for walkers and runners to
join our team for the Corporate FunRun 5k on May 18, 2016 at the Bethpage
Ballpark in Central Islip (right next door to the Courthouse). Bar Association
members, their families, office staff and friends are all invited to join our
team. Glenn Warmuth is the team captain. Come for the fun-run, stay for the
party! Entry is $40/person. To sign up for our team go to: http://corporate-
funrun.com/registration/?id=27&teamid=1919
SECURITIES LAW
JOHN E. LAWLOR, ESQ.

• Securities • Arbitration / Litigation

• FINRA Arbitrations
• Federal and State Securities Matters

(516) 248-7700
129 Third Street • Mineola, NY 11501
johnelawlor.com
10
Princelings – Expanding Definition of “Value” Under FCPA
____________________________
By Jonathan “Jack” Harrington
Congress enacted the Foreign
Corrupt Practices Act (“FCPA”) in
1977 in the wake of the Watergate
investigation and in response to reports
of widespread bribery of foreign offi-
cials by U.S. companies. The FCPA
prohibits U.S. persons, companies, and
issuers from, among other things, brib-
ing or attempting to bribe a foreign
official in order to secure an improper
business advantage. In basic terms, the
elements of an FCPA bribery charge
include: offering, paying, or authoriz-
ing “anything of value” directly or
indirectly, to a foreign official, to
improperly gain a business advantage.
For decades, the FCPA laid relatively
dormant. In recent years, however, the
Department of Justice (“DOJ”) and
Securities and Exchange Commission
(“SEC”) have dramatically stepped up
enforcement of the act. For instance,
since 2008, the top 10 FCPA enforce-
ment actions have cost those 10 compa-
nies a total of $4.4 billion in fines and dis-
gorgement. During the FCPA’s renais-
sance, the government has actively
sought to extend the jurisdictional reach
of the act, as well as expand the definition
of the five elements of a bribery charge.
Foreign Ownership of Real Property in the United States
________________
By Robert B. Moy
There has been tremendous growth in
foreign investment in real property,
both residential and commercial, locat-
ed in the United States in the past five to
ten years. Some states, such as New
York and California, have seen a large
number of investors from Asia, espe-
cially from China, purchasing real
property and investing in real estate
development projects. Florida and
other southern states have seen a large
influx of investment dollars from South
America pouring into real estate.
Although there are many reasons for
this growth, perhaps the key factor is
that real estate in the United States is
perceived to be a safe and stable
investment by foreign investors.
Foreign investment flowing into the
United States from China has been
fueled by the incredible wealth created
by the Chinese economy and stock
market, and the easing of restrictions
on currency controls, which has
allowed the free flow of money out of
China. The increased popularity and
use of the EB-5 Immigrant Investor
Program to allow foreign investors to
obtain permanent residency status in
THE SUFFOLK LAWYER – MARCH 2016
INTERNATIONAL REGULATORY AND ENFORCEMENT
The evolving definition and answer is very clear. The prover- hard to gauge such benefits.
interpretation of each element, bial suitcase full of unmarked Hiring a family member of a govern-
let alone all five, is beyond the bills delivered in a dark alley to ment official is not necessarily a viola-
scope of this article. a foreign minister in exchange tion of the FCPA’s anti-bribery provi-
Since 2013, however, one of for a lucrative government con- sions. But if a company does so with
the most interesting develop- tract is a clear violation. Cash is the intent to induce the official to do
ments has been the meaning of certainly something of “value.” something in their official capacity,
“anything of value” in relation But what if the thing of value is such as award a contract or approve a
to U.S. financial services insti- not promised or delivered deal, that hire would potentially cross
tutions hiring children of directly “to” the official? For the line. Reporting has indicated that JP
influential foreign officials, or Jonathan Harrington instance, in SEC v. Schering- Morgan referred to the hiring pipeline
so-called “princelings” as they are Plough Corp., No. 04-CV-00945 (D.D.C. as the “sons and daughters” program,
referred to in China. In August 2013, JP June 16, 2004), the Commission argued and had created a spreadsheet linking
Morgan Chase disclosed an investiga- that gifts given to a third-party charity were specific princeling hires to specific
tion into a hiring program targeting the intended to influence the charity’s founder, deals being pursued by the bank. JP
children of top Chinese officials. For a senior Polish official. The charity was Morgan and its officials have not been
years, it has been standard practice for legitimate and the donation never went into charged with any wrongdoing.
western banks to hire relatives or close the personal coffers of the official, but the In prosecuting this recent line of
friends of senior Chinese officials in government staked a clear position as to princeling cases, the DOJ and SEC are
order to build up “guanxi” (meaning what it considers to be something of sending a very clear signal that it is con-
“networks” or “connections”). “value” for the purposes of the FCPA. tinuing to seek ways to expand the reach
As you might expect, the government’s Returning to the recent princeling and scope of the FCPA. The princeling
theory is that the job or internship consti- cases, can a job (even an unpaid intern- investigations to date have been settled,
tutes something of value under the FCPA ship) offer to a relative of a foreign official so there is no case law to help compa-
and that it is being offered to improperly inure to the benefit of the official himself? nies determine the left and right bounds
gain a business advantage. The interesting If the job is lucrative, then arguably the when it comes to hiring the relatives of
question becomes, however, does net- salary received by the relative is a savings foreign officials. The U.S. government’s
work-building or even blatant nepotism to the official, but that assumes some level public statements on these cases, how-
rise to the level of an FCPA violation? of financial dependence. One could also ever, are certainly instructive.
The answer appears to be “maybe.” argue that there is an intrinsic or prestige First, companies that might hire a
What constitutes something of value is value associated with working at a rep- relative of a foreign official should not
not always easy to answer. Sometimes the utable financial services firm, but it is very (Continued on page 24)
REAL PROPERTY
the United States has also out of the ownership of the eign corporations may be subject to
helped to increase the flow of real property. more income tax since they are not
foreign investment into One form of ownership entitled to any reduced capital gains
United States real estate. available to foreign buyers to tax rates upon sale of the real property,
There are many tax and shield themselves from per- a benefit that is available to individu-
liability implications appli- sonal liability is a limited lia- als. In addition, there might be an
cable to foreigners buying bility company (“LLC”). additional income tax imposed upon
real property in the United Ownership of real property foreign corporations known as a
States, which should be in an LLC provides liability “branch profits tax.”
addressed with some protection for the LLC’s Perhaps the most advantageous
advanced planning prior to Robert B. Moy owners or “members,” and an structure for foreign buyers to own real
the signing of a contract and/or the LLC is a pass through entity that is property in the United States is a
closing of the purchase. One of the taxed only to each of its members. hybrid structure whereby a foreign cit-
key considerations for foreign buyers Thus, LLC’s avoid the double taxation izen owns a foreign corporation, which
is structuring the ownership of the real of other entities such as C corpora- in turn, owns an LLC set up in the
property to minimize taxation and to tions, which are taxed once at the cor- United States. A foreign citizen in this
maximize protection from personal porate level and again at the share- dual structure will have liability pro-
liability arising out of ownership. holder level. An LLC does not neces- tection, and avoids the possibility of
sarily provide estate tax savings to United States estate taxes upon death.
Ownership structure individual foreign owners of the entity, The tradeoff is the potential for higher
The simplest form of real property but it has become a popular entity to income taxes and capital gains tax
ownership in the United States is own- use for owning real estate. rates upon sale of the real property.
ership in a foreign buyer’s individual Another option available to foreign It is also worth noting that upon the
name. There are, however, significant buyers is to own real property through disposition of any real property, all
disadvantages to individual ownership, a foreign corporation. In addition to foreign individuals and foreign corpo-
such as the potentially onerous estate the limited liability offered by foreign rations are subject to withholding
tax in the event that the individual dies corporations, individual owners of for- under the Foreign Investment in Real
while the owner of real property locat- eign corporations are not subject to Property Tax Act of 1980 (FIRPTA).
ed in the United States. In addition, an United States estate taxation upon the Under FIRPTA, the buyer of real prop-
individual owner is exposed to person- death of the individual shareholders. erty from a foreign owner is required
al liability for any obligations arising There are some disadvantages, as for- (Continued on page 26)
 THE SUFFOLK LAWYER – MARCH 2016 11

REAL ESTATE

CPLR Rule 3408 Addressed by Second Department Again, Again and Again
_____________
By Andrew Lieb
In January 2016, the Second
Department was again asked to explain
the trial court’s authority to enforce the
good faith negotiation requirement
applicable to CPLR Rule 3408 settle-
ment conferences in three separate
cases. As the Second Department ini-
tially reminds us, “[p]ursuant to CPLR
3408(f), the parties at a mandatory
foreclosure settlement conference are
required to negotiate in good faith to
reach a mutually agreeable resolu-
tion.”1 In all three cases, the court
remained steadfast to its previously set
standard for CPLR Rule 3408 as artic-
ulated in US Bank N.A. v. Sarmiento2.
In LaSalle Bank, N.A. v. Dono, the
court affirmed the trial court’s imposi-
tion of sanctions “abat[ing] all interest,
disbursements, costs, and attorney’s
fees that had accrued during the period
between October 1, 2010, and August
12, 2014,” which represented the peri-
od “that the Bank had failed to negoti-
ate in good faith.” However, the court
reversed the trial court’s imposition of
additional sanctions, which “perma-
nently barr[ed] the Bank from collect-
ing any interest, disbursements, costs,
or attorney’s fees in the future absent
further court order.” In Dono, the
court’s finding of bad faith Sarmiento is “considering records to establish that the documents
was based upon “the Bank … whether the totality of the requested for a modification, the dates
engag[ing] in dilatory con- circumstances demonstrates of such requests and/or the grounds for
duct by ‘making piecemeal that the party’s conduct did denial are inconsistent or contradictory.
document requests, providing not constitute a meaningful Simply stated, a party who
contradictory information, effort at reaching a resolu- “obfuscate[s], delay[s], and prevent[s]
and repeatedly requesting tion.” When Sarmiento estab- CPLR 3408 settlement negotiations by
documents which had lished the totality of the cir- acting negligently” can be found to have
already been provided’.” cumstances standard, the negotiated in bad faith. Nevertheless, a
In Aurora Loan Services, court expressly rejected the lender is not required to accept a bor-
LLC v. Nelli Chirinkin, et al.3, Andrew Lieb plaintiff’s proposed standard rower’s offer (e.g., a modification with a
the court was asked to address whether “of gross disregard of, or conscious or lower principal or interest rate, or
the trial court properly denied an appli- knowing indifference to, another’s instead, a lump sum payoff) by way of
cation to restore the action to the mort- rights.” In fact, the court in Sarmiento the totality of the circumstances stan-
gage foreclosure settlement conference set forth illustrations of bad faith nego- dard. So, there will never be a windfall
part calendar. The court affirmed the tiations that are triggered “by acting to a borrower from a meritorious CPLR
trial court’s denial of the application by negligently,” including “[w]here a Rule 3408 application because sanctions
holding that “refusing to lower the plaintiff fails to expeditiously review are restricted to waiving the interest, dis-
principal or the interest rate or by submitted financial information, sends bursements, costs, and attorney’s fees
rejecting the terms of the defendants’ inconsistent and contradictory com- that accumulated during the period of
counteroffer” is not bad faith. munications, and denies requests for a bad faith only. Therefore, a sanctions
In Deutsche Bank Natl. Trust Co. v. loan modification without adequate application should only be used as a
Twersky4, the court held that the refusal grounds, or, conversely, where a defen- matter of last resort.
by a foreclosing plaintiff to accept “a dant fails to provide requested finan- Moving forward, the only question
lump sum payment … in full satisfac- cial information or provides incom- that remains open is the degree that
tion of the outstanding loan balance,” plete or misleading financial informa- HAMP guidelines play in the totality of
did not constitute bad faith negotiations tion, such conduct could constitute the the circumstances standard. While this
pursuant to CPLR Rule 3408. failure to negotiate in good faith to precise issue was raised in US Bank N.A.
In each of the three cases, the reach a mutually agreeable resolution.” v. Sarmiento, and the court rejected the
Second Department cited to US Bank CPLR Rule 3408 has a clear standard common-law alternative standard
N.A. v. Sarmiento for the good faith for enforcement. The result of a CPLR advanced in the case by the plaintiff, it
standard applicable to CPLR Rule Rule 3408 sanction’s application can be did not expressly hold that HAMP
3408(f). The standard set forth in predicted by whether the mortgagor has (Continued on page 25)

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12
Respondent’s Invocation of Fifth Amendment Results in Stayed Eviction
_____________
By Cory Morris
A civil legal service provider
invoked their client’s Fifth Amendment
rights in eviction proceedings, resulting
in a stay and allowing the client to
remain in her residence. The client,
Deborah Moorer (“Moorer”), was
simultaneously being evicted by the
Hempstead Housing Authority and
prosecuted by the Nassau County
District Attorney’s office for hitting
someone with her cane, which she
denied doing. This case should serve as
a reminder to civil practitioners whose
clients are facing criminal charges that
civil courts have the discretion to stay
the proceedings pending the resolution
of a criminal matter.
The case, Hempstead Housing
Authority v. Moorer,1 started out as a
simple eviction. On April 21, 2015,
Petitioner, Hempstead Housing
Authority (“Housing Authority”) filed
a holdover proceeding in District
Court, Nassau County, Landlord and
Tenant Part. The Housing Authority
alleged that the tenant defaulted on the
lease because “[o]n or about January
22, 2015 [she] assaulted another tenant
with a cane.” The respondent, Deborah
Moorer, averred in her answer that,
even if proven, these allegations would
not be a material breach of the lease.
Dealing with Interruptions
__________________
By Allison C. Shields
Interruptions are enormous time
wasters that represent huge productiv-
ity losses. Studies have shown that it
can take more than 25 minutes, on
average, to resume a task after being
interrupted. After resuming complex
tasks, such as those performed by most
lawyers daily, it can take an additional
15 minutes to return to the level of
focus or concentration as before the
interruption. A September 10, 2013
article in the Wall Street Journali
linked frequent interruptions to higher
rates of exhaustion, stress-induced ail-
ments and a doubling of error rates.
Constant interruptions can even mimic
the symptoms of sleep deprivation.
Given the number of interruptions
most lawyers experience daily, this is
an issue that cannot be ignored.
Sometimes interruptions are
unavoidable; emergencies do arise,
and some interruptions need to be
addressed immediately. In my May
2015 column, I talked about blocking
time for priority work and leaving
room for the “chaos factor.” By doing
so, you plan time to handle emergen-
cies that may arise. If you must be
THE SUFFOLK LAWYER – MARCH 2016
CONSTITUTIONAL
The matter was set down for a Ms. Moorer was represented sends the same message: innocent or
trial due to occur on Nov. 21, by the Nassau/Suffolk Law guilty, demand an attorney and exercise
2015. Ms. Moorer, by order Services, Committee Inc. your right to remain silent. You need not
to show cause, made a motion (“NSLS”), a legal service be a movie buff to know that on the
to stay the proceedings on or provider “dedicated to provid- screen and in reality you do have the
about Oct. 23, 2015. ing equal access to basic right to remain silent and everything you
In her affidavit in support human rights and services say can be used against you.4 Making a
of the motion to stay the through provision of high qual- Murderer simply buttresses the impor-
action, Ms. Moorer invoked ity legal representation, public tance of exercising one’s Fifth
her Fifth Amendment rights, information and community Amendment rights in the face of police
stating, inter alia, that: Cory Morris advocacy training to ensure questioning even if that person is factu-
I wish to preserve my constitutional that low income, disabled and disadvan- ally innocent.
rights while for fighting for my acquit- taged individuals have equal access to the The Fifth Amendment to the United
tal and defeat of this summary eviction civil justice system on Long Island.”2 The States Constitution is as follows:
proceeding, and I ask the Court to stay quality of the representation is in the
this matter pending the outcome of my result. Aside from the importance to the No person shall be held to answer
criminal trial… My criminal defense bar, we should be reminded that the for a capital, or otherwise infa-
attorney advised me that testifying in impact of this case is profound for Ms. mous crime, unless on a present-
this matter effectively sacrifices my Moorer, a woman who resided in low- ment or indictment of a Grand
right to exercise the Fifth Amendment income housing in Hempstead, New Jury, except in cases arising in the
in my criminal trial, as my testimony in York, for over a decade before she was land or naval forces, or in the
the civil matter becomes public record. charged with a crime and subsequently Militia, when in actual service in
The Housing Authority responded notified that she was being evicted. time of War or public danger; nor
that Ms. Moorer had “waited too long Civil Practitioners should note that shall any person be subject for the
to make the application for a stay the Fifth Amendment is multifaceted same offence to be twice put in
because this matter was scheduled for and, in this case, was not only a funda- jeopardy of life or limb; nor shall
trial.” Judge Scott Fairgrieve found that mental protection in the criminal matter be compelled in any criminal case
Ms. Moorer’s “right against self but sufficiently prolonged the civil mat- to be a witness against himself, nor
incrimination is more important than ter throughout the winter. “In the wake be deprived of life, liberty, or prop-
any prejudice and delay suffered by of Netflix’s Making a Murderer docu- erty, without due process of law;
Petitioner.” After the resolve of the mentary … interest in the recognized nor shall private property be taken
criminal matter (which was set for trial right to remain silent has been reignited for public use, without just com-
due to occur on Feb. 5, 2016) the land- amongst the populace.”3 This documen- pensation.
lord tenant matter will be tried. tary is the latest in a string of media that (Continued on page 24)
PRACTICE MANAGEMENT
interrupted, make a note interruptions simply because example, schedule a meeting with your
about what you were doing your staff doesn’t know assistant every day at 4:00 p.m. to
and, ideally, what the next when you will be available resolve any remaining issues from the
step is. Then put the original next. And once they have day and plan for the following day. Or
task away so that you can your attention, they may be have a weekly meeting with your asso-
focus completely on the new afraid to let it go because it’s ciate to report on progress of ongoing
priority. so difficult to get it in the projects or cases.
Allowing interruptions first place. Block out do not disturb time to con-
permits the priorities of oth- But you can limit or elimi- centrate on complex tasks. Instruct oth-
ers to override your own. But nate these problems with ers not to interrupt unless an emergency
Allison M. Shields
most interruptions don’t rep- these basic actions. arises — and define what constitutes an
resent real emergencies or significant First, train staff to hold all questions emergency. If possible, put your office
priorities that trump your original task. for a specific time, so you can tackle phone in do not disturb mode to alert
In those instances it’s better to avoid several issues at once rather than deal- others that you are not available and
the interruption entirely. You can cir- ing with multiple interruptions for close your office door. If all else fails,
cumvent many of these interruptions if individual questions. Next, implement leave your office in favor of a confer-
you set some ground rules for how oth- “available” and “unavailable” (or “do ence room or remote location to ensure
ers interact with you. not disturb”) time in your office. Give that important work gets done.
staff a clear time when you’ll be acces- Colleagues present another oft-cited
Staff and colleague interruptions sible to them, and follow through con- source of interruptions. Even solos
Not all lawyers have staff, but those sistently. Establish regular daily or can experience these interruptions,
who do frequently find that staff inter- weekly office hours, or provide a particularly if they work in an office
ruptions can represent a major loss of changing block of time daily when you suite or shared office arrangement.
productivity. Staff interruptions can be will be on hand for questions. Either Colleagues may stop by for feedback
the result of the lawyer’s limited avail- way, staff must know when they can or questions, or they may simply want
ability or an inability of staff to predict reach you. This will eliminate (or at to take a break and shoot the breeze.
when the lawyer will be able to answer least reduce) their urge to grab you Let them know your office hours and
their questions. When you are present every time they see you. do not disturb policy. If they interrupt
in the office — usually when you’re Schedule recurring meetings with anyway, give them a time to come
alone in your office trying to get work those who are accountable to you or back with their questions. Don’t be
done — you can be bombarded with have regular questions for you. For (Continued on page 25)

‘Technological Competence,’ a New Ethical Obligation
________________________
By Victor John Yannacone Jr.
Rule 1.1 Competence: a lawyer
shall provide competent representa-
tion to a client. Competent represen-
tation requires the legal knowledge,
skill, thoroughness and preparation
reasonably necessary for the repre-
sentation. i
In August 2012 Comment 8 was added
to the rule, “To maintain the requisite
knowledge and skill, a lawyer should
keep abreast of changes in the law and its
practice, including the benefits and risks
associated with relevant technology …”
Although this was a nonbinding com-
ment to the rules, over the three years
since that amendment, at least 15 states
— Arizona, Arkansas, California,
Connecticut, Delaware, Idaho, Kansas,
Massachusetts, Minnesota, New
Hampshire, New Mexico, North
Carolina, Ohio, Pennsylvania and West
Virginia — have amended their ethics
rules or issued ethics opinions with pro-
visions on attorneys’ competence with
technology.
Earlier this year, the State Bar of
California in its Formal Opinion No.
2015–193,ii determined that attorney
competence in litigation requires, “at a
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THE SUFFOLK LAWYER – MARCH 2016 13
CYBERLAW
minimum, a basic understand- merce, particularly interna- in the early days of IBM mainframes,
ing of, and facility with, issues tional trade and finance, must “machine-readable format,” whether the
related to e-discovery, attain a level of technological material is stored in personal computers,
includingiii the discovery of competence commensurate laptops, tablets, servers, and now, more
electronically stored informa- with that of their clients. This frequently than ever, mobile devices
tion (ESI),” adding this omi- is critical when the client such as smart phones.
nous warning to the unpre- becomes involved in litiga- To be considered a “competent” liti-
pared attorney — “Lack of tion and e-discovery involves gator in the context of professional lia-
competence in e-discovery identification and collection bility considerations, at the very mini-
issues also may lead to an eth- of documents and data from mum, an attorney must understand the
ical violation of an attorney’s Victor Yannacone Jr. structured data sources and technology of ESI and should be able
duty of confidentiality.” analysis of global information architec- to handle the basic elements common
The California State Bar estab- ture, among other tasks involving a to all e-discovery:
lished three options for attorneys combination of legal, technical and • Assessing the e-discovery needs
“lacking the required competence for business skills. and issues of the litigation.
e-discovery issues: “acquire sufficient • Implementing ESI preservation pro-
learning and skill before performance E-discovery cedures.
is required; associate with or consult Any lawsuit in any court, which • Analyzing and understanding the
technical consultants or competent requires production and examination of ESI systems and storage of both
counsel; and decline the client repre- “documents,” involves electronically your client and the opposing party.
sentation. stored information (ESI) and calls for e- • Determining options for collection
Particularly in the area of e-discov- discovery. From relatively uncomplicat- and preservation of ESI.
ery, failure to understand the technolo- ed contested matrimonial actions • Identifying the custodians of poten-
gy creates a genuine risk of legal mal- through mass toxic torts and product lia- tially relevant ESI.
practice and professional liability. bility class actions, counsel managing • Conferring with opposing counsel
the litigation for plaintiffs or defendants concerning e-discovery plans.
Business considerations must understand the technology associ- • Conducting data searches with your
There is also a significant business ated with electronic media in all its client.
component to cyberlaw and technolog- forms and the storage and management • Designing data searches of the
ical competence. Attorneys who repre- of business and personal records as opposing party.
sent clients engaged in modern com- computer records; or, as they used to say (Continued on page 22)
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14
The Self-Defense Exception to the Attorney-Client Privilege
_____________________
By Janice J. DiGennaro
Responding to Client Critical
Commentary on a Website
NYSBA Ethics Opinion 1032 (Oct.
30, 2014)
Under R.P.C. 1.6 a lawyer is per-
mitted to disclose privileged commu-
nications in certain circumstances
when needed for his or her defense.
R.P.C. 1.6(b)(5)(i) states that a
lawyer “may reveal or use confidential
information to the extent he believes is
reasonably necessary … to defend the
lawyer or the lawyer’s employees and
associates against an accusation of
wrongful conduct.”
The cases and commentators
have held either an actual civil,
criminal, disciplinary or other pro-
ceeding in which sanctions can be
imposed must be commenced or a
material threat that a proceeding
will be commenced. Late last year,
the New York Bar Association
Committee on Professional Ethics
issued Opinion 1032. In that opin-
ion, the committee examined
whether a lawyer may disclose con-
fidential information under the self-
defense exception solely to respond
to criticism of the lawyer posted on
“Best Practices” at a Wade Hearing
_______________
By Vesselin Mitev
Eyewitness identification of a sus-
pect, once heralded as the gold standard
of proof for the prosecution in criminal
cases, has been time and time again
demonstrated to be faulty, erroneous,
easily influenced, and altogether unreli-
able. Yet few things are more powerful
than an in-court identification of the
defendant as the person who committed
the crime, with the witness pointing to
the defendant as they are asked if they
see the suspect in court today, even if
that witness is sorely mistaken.
The pre-trial Wade hearing (after the
1967 U.S. Supreme Court case U.S. v.
Wade), codified under CPL 710.30,
puts the burden on the People to prove
that the pre-trial identification of the
suspect was the product of reasonable
police conduct and the lack of any
undue suggestiveness in a pre-trial
identification procedure (photo array,
line-up, show-up); if the People meet
this initial burden, the burden then
shifts to the defendant to prove that the
process was unduly suggestive.
Importantly, prevailing at the Wade
hearing means that at trial, in-court iden-
tification(s) will be admissible (at the
THE SUFFOLK LAWYER – MARCH 2016
ETHICS
a lawyer-rating website. initiated by the client. or privileged communications.
The short answer is no. The committee concluded
The lawyer may not rely that rules permitting disclo- Note: Janice J. DiGennaro is a part-
upon the self-defense excep- sure of client confidences ner in Rivkin Radler’s Professional
tion to the attorney-client should be read restrictively. Liability, Directors & Officers Liability
privilege to reveal privileged Unflattering but less formal and Compliance, Investigations &
or confidential information criticism of the lawyer’s White Collar, Practice Groups, where
about the client to respond to skills, whether in the hallway, she represents attorneys for claimed
critical comments about the newspaper or on a website, malpractice, fiduciary breaches, and
lawyer on a website where are an inevitable incident of fraud. She can be reached at: (516)
there were no pending or Janice J. DiGennaro the practice of law and pro- 357-3548 or janince.digennaro@riv-
imminently threatened proceedings vide no license to divulge confidential kin.com.
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court’s discretion) only if the gestive. ness’ line of eyesight so as not to give
People establish by clear and For example, the typical even inadvertent cues. Were any state-
convincing evidence that said photo array sheet comes with ments made to the witness such as,
identification(s) were “neither a set of pre-printed instruc- “Are you sure you got a good look at
the product of, nor affected by, tions that are supposed to be number 5?” or did the witness ask any
the improper pretrial” proce- read to the identifying wit- questions and were said questions
dure, see People v. Rahming, ness. Often, these are never answered in any fashion. Did the offi-
26 NY2d 411, 416 [1970]). read at all. Nine times out of cer/detective clear his throat while the
The standard photo array 10 the officer/detective does witness paused her finger over a par-
Wade hearing involves the not first ask the witness ticular photograph or was the room
Vesselin Mitev
People calling the police whether or not they can read stone silent?
officer or detective who will attempt to or write English. The state District Attorneys’
establish that he or she presented sev- The photo array sheet asks of the Association has a best practices guide-
eral (usually six) pictures of possible witness a series of questions, such as: line as to identification procedures.
suspects to the identifying witness and “Do you recognize any of the photo- This is a helpful checklist for any
then the identifying witness, without graphs above?” and has pre-printed defense counsel looking to poke sub-
any hint or suggestion by the blank spaces for the witness to fill out. stantial holes in the testifying offi-
officer/detective, simply picked out the Of course, if the good officer/detective cer/detective’s narrative, especially if
defendant charged with the crime. did not inquire whether the witness it does not conform with the state pros-
The witness is a disinterested public could understand what was being ecutors’ own guidelines (which the
servant and enjoys the patina of credi- asked of him/her (since he failed to court should be asked to take judicial
bility of a sworn law enforcement inquire whether the witness spoke or notice of).
agent while your client is a suspect wrote English), then necessarily the For example, the photo array should
charged with a crime. The scales are photo array display was not conducted be handed to the witness covered up
not balanced at the outset, one might correctly on its face. (in an envelope or a folder) so that nei-
say, yet there is fertile ground for Subtle suggestiveness lurks every- ther the witness nor the officer can see
cross-examination to determine the where. Inquiry should be made where the pictures. The witness should be
“lack of any undue suggestiveness,” the officer stood as related to the wit- told by the officer/detective before
which is a horse of a different color ness, i.e., was he hovering over her viewing the array that 1) the person
than whether taken as a whole the shoulder while she reviewed the array, who committed the crime may or may
entire procedure was not unduly sug- or was he removed and out of the wit- (Continued on page 26)
 THE SUFFOLK LAWYER – MARCH 2016 15

TRUSTS AND ESTATES UPDATE

_____________________
By Ilene Sherwyn Cooper intestacy, the court will rule in executor and trustee of the bate on April 4, 1986. Ancillary pro-
favor of standing. trusts created under the dece- bate was granted in California on the
Standing Accordingly, the petition- dent’s will. Although objec- same date the will was admitted to pro-
Before the Surrogate’s Court, New er’s motion to dismiss was tions to the account were ini- bate in New York, and ancillary letters
York County, in In re Bruno, was an denied. tially filed by the decedent’s testamentary were issued to the corpo-
application by the petitioner to dismiss In re Bruno, NYLJ, Oct. 23, spouse, his daughter, and his rate fiduciary on June 6, 1986. The
the objections filed by one of the dece- 2015, at 42 (Sur. Ct. New York two grandchildren, after assets of the decedent’s estate included
dent’s distributees on the grounds that County)(Anderson, S.) many years of litigation all a valuable parcel of real property
she lacked standing to pursue her claims. the objectants, but for the located in California that was the sub-
The decedent died, survived by 11 Estoppel Ilene S. Cooper decedent’s daughter, settled ject of a long-term lease agreement,
first cousins once removed, who were Before the Surrogate’s Court, Suffolk with the fiduciary. which expired on July 23, 2014.
her sole distributees. The approximate County, in In re Lowe, was an account- The decedent died on February 23, Pursuant to the pertinent provisions
value of her estate at death was ing by JP Morgan Chase Bank as 1986, and his will was admitted to pro- (Continued on page 23)
$482,000. Pursuant to the pertinent
terms of her will, she bequeathed her
cooperative apartment, valued at
approximately $400,000, to Rose, who
was one of her said distributees, and
left the residue of her estate to the peti-
tioner. Under a penultimate instru-
ment, Rose received one-half of the
cooperative apartment, and a one-fifth
share of the residuary estate.
Objections to probate were filed by
five of the decedent’s distributees,
including Rose, alleging, inter alia, lack
of due execution, lack of testamentary
capacity, fraud and undue influence.
The petitioner moved to dismiss the
objections filed by Rose, claiming that
she was not adversely affected by the
probate of the propounded will and
therefore lacked standing.
The court opined that the provisions of
SCPA 1410 authorize any person whose
interest in property or in the estate of the
testator is adversely affected by the
admission of the propounded will to pro-
bate to file objections to the probate of
the instrument. The court noted that the
“interest” contemplated by the statute,
need not be absolute, and can include a
contingent stake in the estate.
Within this context, and based upon
the estimated value of the estate, the
petitioner argued that the objectant
received more under the propounded
instrument than under the penultimate
will or in intestacy. The objectant, on
the other hand, maintained that the
petitioner was withholding assets from
the estate that he wrongfully converted
from the decedent, and that the recov-
ery of those assets would result in the
estate exceeding $2.5 million. She thus
maintained that she would have more
to gain under the prior instrument,
once the petitioner was made to turn
over the property in issue.
The court held that where a party’s
standing to object in a probate proceed-
ing is in question, it is generally recog-
nized that the probate estate assets
should be deemed to include “any prop-
erty transferred before death, which for
one reason or another can or should be
recovered or brought into the estate…”
(citations omitted). Thus, where it cannot
be readily determined whether a would-
be objectant’s interest will prove to be
greater under the propounded instrument
than it would be under a prior will or in
16 THE SUFFOLK LAWYER – MARCH 2016

Black History Month Celebrated at the Courts

___________________
By Sarah Jane LaCova

Since 1976, every U.S. president

has officially designated the month of
February as Black History Month. It
is a month to recognize the many
achievements of African Americans
since our country’s beginning and is a
moment in time when we recommit
to the belief that people are only
judged by the content of their charac-
ter.
When we in Suffolk County cele-
brate Black History Month at the
courts, we not only mark the month-
long event, but also celebrate our
legal community’s diversity. The cel-
ebration emphasizes our common
goals of working together for the
common good. ues. If you have standards, you are
Last year the court established an middle class.”
award in the name of a well known Justice Ford also said that the
and beloved jurist, the Honorable churches where the black community
Marquette L. Floyd, who served for gathered found much of its true
19 years as a District Court judge expression and were definitely hal-
before being elected to the Supreme lowed grounds since they are spiritual
Court Bench in 1989, where he centers of the community. He said he
served with distinction, including a thought about Justice Marquette
term as the Presiding Justice of the Floyd, the first person of color to be
Appellate Term for the 10th Judicial elected to the Supreme Court Bench in
District. Justice Floyd’s accomplish- Suffolk County, and closed by saying,
ments are many, including service as “Every judge of color in this county
a director of our bar association. His stands on Justice Floyd’s shoulders.” choral selections. The Amityville HS
is a story of a legend that persevered. District Administrative Judge C. Jazz Ensemble played several jazz
This year, the second annual Hon. Randall Hinrichs, who did the wel- numbers and they were sensational
Marquette L. Floyd Award was given come, thanked our wonderful and so professional.
to an equally deserving recipient, the Mistress of Ceremony the Honorable Justice Hinrichs thanked Presiding Suffolk County Bar Association host-
Honorable William G. Ford. Justice Toni A. Bean, who has chaired the Officer of the Suffolk County ed the program. Presidents Maxine
Ford was elected to the Supreme committee for many years and who Legislature DuWayne Gregory for his Broderick and Donna England both
Court Bench this past year. Prior to deserves our recognition and appreci- inspiring remarks. He also recog- gave poignant remarks
his elevation to the Supreme Court, ation. Thank you to the Amityville nized Captain David Santiago and the
he served as an Acting County Court High School Select Choir who gave Honor Guard for the Presentation of Note: Sarah Jane LaCova, is the
judge from 2014-2015, having first us a rousing rendition of “Lift Every Colors. The Amistad Long Island Executive Director of the Suffolk
been elected to the District Court Voice and Sing” as well as other Black Bar Association and the County Bar Association.
bench in November 2008. He is an
active member of the SCBA, who
served on the Bench Bar Committee,
the Neuroscience, County Court and
Appellate Practice committees; he
also served as co-chair of our District
Court Committee for several terms.
Justice Ford has also served our
Academy of Law as a lecturer and as
program coordinator.
This year’s theme, “Hallowed
Grounds,” gave pause to Justice Ford,
who waxed nostalgia about growing
up in Suffolk County, citing that the
Central Islip courthouse is the spot
where his family worked at the for-
mer Central Islip Psychiatric
Hospital, certainly a hallowed ground
where many black families were able
to enter middle class life through
employment at the hospital. Our own
beloved Justice Floyd used to say,
“Middle class is not based on your
possessions. It’s based on your val-
 THE SUFFOLK LAWYER – MARCH 2016 17

CORPORATE

Letters of Intent
_________________________________
By Stella Lellos and Sean N. Simensky
Modern business transactions can be
costly, both financially and temporally,
particularly if after long periods of
negotiation and due diligence a final
agreement is never reached. In an
attempt to reduce the likelihood that an
agreement will fall through, it is often
advantageous for the parties to sign a
letter of intent.
This letter, usually sent from the
buyer to the seller, is designed to set
out the main deal points of the con-
templated transaction at an early stage,
prior to major expenditures by the par-
ties. The letter of intent is typically
non-binding, except for specific provi-
sions. As such, the letter of intent
serves as a guideline, subject to the
drafting and execution of a future
definitive agreement.
The letter of intent allows the parties
to understand the major business
points and develop an overall frame-
work of the transaction, as well as to
identify any major deal-breakers. As
an added benefit, the letter of intent
can also help streamline negotiations
and create at least a soft timeline for
Though a letter
of intent can and
should be tailored
to the specifics of
the deal, there are
certain provisions
that appear in most
letters of intent.
Set forth below are
some of such key
Stella Lellos
provisions, each of
which should be expressly designated
as either binding or non-binding.
Business terms and description of
transaction
The letter of intent should begin with
the most important aspects of the trans-
action. That is, it should identify the
parties and describe the type of transac-
tion contemplated, whether an acquisi-
tion of assets or stock, merger, acquisi-
tion or otherwise. The letter of intent
should also include payment or other
consideration amounts and terms.
No-shop and exclusivity
Generally, one of the few binding
provisions of a letter of intent, which
should be expressly indicated as such,
The purpose of the
“no-shop” provi-
sion is to protect a
buyer who is
expending time
and resources per-
forming due dili-
gence from the
threat that the sell-
er will engage in
Sean N. Simensky
discussions with or
solicitations of potential third-party
buyers. The length of the “no-shop”
exclusivity period will depend greatly
on the size of the deal and the extent of
due diligence required, and should
provide a timeframe long enough to
allow the buyer to conduct thorough
due diligence and to negotiate and sign
a definitive agreement. During, the
exclusivity period, it is important that
the business of the target company
continue to be conducted in substan-
tially the same manner consistent with
past practices, and the “no shop” pro-
vision should so provide.
Confidentiality and non-solicitation
Much in the way the “no-shop” provi-
sion protects a buyer’s interests, the con-
sions of a letter of intent are designed to
protect a seller’s interests. An inherent
aspect of a business transaction is the
need for the buyer to have access to the
seller’s information, much of which will
be confidential. Whether it is client lists,
employee information, or trade secrets,
the seller needs a certain level of protec-
tion during the due diligence period
when its business is most exposed and
vulnerable. Such protection is provided
for in the letter of intent through binding
confidentiality and non-solicitation pro-
visions, thereby preventing the buyer
from using information learned during
due diligence to its own advantage.
That said, to the extent that parties to a
transaction have signed a separate non-
disclosure agreement, the non-disclo-
sure agreement would suffice to protect
the buyer’s interests, and additional con-
fidentiality provisions would not be nec-
essary in the letter of intent.
Additional provisions
Additional provisions in the letter of
intent may include provisions regard-
ing employee retention, restrictive
covenants, whether employment or
consulting agreements will be offered

LAW OFFICES OF
the transaction. is the so-called “no-shop” provision. fidentiality and non-solicitation provi- (Continued on page 21)

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18
Confronting the Expert Under the Sixth Amendment
________________
By Hillary Frommer
In People v M.F.,1 the Bronx County
Supreme Court addressed for the first
time since the U.S. Supreme Court’s
controversial 5-4 decision in Williams v
Illinois2 in 2012, whether the Sixth
Amendment rights of a defendant
standing trial for rape are violated if the
results of a DNA report are introduced
into evidence at a jury trial without pre-
senting the testimony of each laborato-
ry analyst or technician who con-
tributed to the report. The court strug-
gled to strictly apply Williams, as it
noted key factual differences between
the cases, and the fact that “no five jus-
tices agreed on the rationale for the
result [which] has been the subject of
much debate in the courts since it was
issued.”3 To understand how the court
reached its result, which “split the
baby” if you will, we must examine
Williams and what it has left in its wake.
Williams was one of several cases
before the Supreme Court involving
the expert testimony and the
Confrontation Clause. In its 2004 deci-
sion in Crawford v Washington,4 the
court changed its long-held position
that out-of-court statements that fall
into a hearsay exception are not barred
Mrs. Robinson Exempts the Book of Mormon in Bankruptcy
US Circuit Court addresses whether valuable bible is exempt
________________
By Craig D. Robins
The opening stanza to Simon &
Garfunkel’s 1968 chart-topping song,
Mrs. Robinson, is very appropriate here:
And here’s to you, Mrs. Robinson,
Jesus loves you more than you will
know, woe woe woe
God bless you, please, Mrs.
Robinson
Heaven holds a place for those who
pray,
Hey, hey, hey
Hey, hey, hey
Two years ago, Mrs. Anna
Robinson in Illinois sought Chapter 7
relief to discharge the relatively mod-
est sum of $23,000 of typical con-
sumer debt. She just happened to own
a very rare, first edition Book of
Mormon from 1830.
When consumers file for bankruptcy
they can keep a number of posses-
sions. The legislatures have deter-
mined what is fair and reasonable for
debtors to keep while seeking to dis-
charge their debts in bankruptcy.
THE SUFFOLK LAWYER – MARCH 2016
WHO’S YOUR EXPERT
by the Sixth Amendment, to violation because that testi- Importantly, however, the court further
hold that “testimonial state- mony was an “out-of-court held that the introduction of the report
ments of witnesses absent statement … related by the into evidence would not have violated
from trial [can be] admitted expert solely for the purpose the Confrontation Clause because it
only where the declarant is of explaining the assumptions was prepared before any suspect was
unavailable, and only where on which [the expert] opinion identified and therefore, was not gen-
the defendant has had a prior rests” not offered for the truth erated specifically for the purpose of
opportunity to cross-exam- and, therefore, outside of the obtaining evidence against the defen-
ine.”5 The ultimate import of Confrontation Clause. In dant (who the victim had subsequently
Crawford, was that a defen- Hillary A. Frommer reaching this opinion, the identified in a line-up).
dant had a right to confront all of the court made the following determina- Not surprisingly, the dissent took a
analysts who authored the lab analy- tions: the expert’s remaining testimony sharply different view. It considered
sis/reports offered into evidence was based on personal knowledge and, Williams an “open-and-shut case” of a
against him. However, the court reaf- therefore, did not implicate the violation of the Confrontation Clause,
firmed the proposition that the Confrontation Clause; the questionable because the state prosecuted the defen-
Confrontation Clause does not bar out- factual statement was “a mere premise dant based on a DNA profile created in
of-court statements that are not offered of the prosecutor’s question,” which the a lab, but did not afford the defendant
for the truth of the matter asserted – expert assumed when testifying that the right to cross-examine the analyst
i.e. non-hearsay. there was a match between two DNA who created the very profile, which
The issue in Williams was whether profiles; and the judge presiding over linked the defendant to the victim. The
the defendant’s confrontation rights the bench trial presumably “understood dissent rejected the plurality’s opinion
were violated when a forensic expert that the portion of [the expert’s] testi- that the questionable statement that the
testified at a bench trial that the DNA mony … was not admissible to prove profile came from the swab of the vic-
profile provided by an outside laborato- the truth of the matter asserted.”7 The tim was merely an assumption which
ry was produced from semen found on court noted, however, that there may was not offered for its truth, as it saw
the victim’s vaginal swabs, because the have been a Confrontation Clause issue no meaningful distinction between a
expert did not have personal knowl- if the trial had been before a jury, rather hearsay statement, which forms the
edge of that fact, and there was no other than bench. basis of the expert’s opinion and the
expert or fact witness with such per- The court also concluded that the hearsay statement offered for its truth.8
sonal knowledge that testified. Justice questionable testimony did not through Faced with Williams, the Bronx
Alito6 wrote the plurality decision, in the backdoor introduce the substance Supreme Court was asked to deter-
which the court found that there was no of the report into evidence. (Continued on page 26)
CONSUMER BANKRUPTCY
Many states, including the time, it was valued at Mrs. Robinson moved the court to
New York, have exemption $10,000. It was worth sub- reconsider on the ground that the
statutes that, in addition to stantially more than that bankruptcy court’s opinion was
permitting consumers to when she filed her bankrupt- unconstitutional because it permitted
protect a certain dollar cy case. the exemption statute to interfere with
amount of essentials like Mrs. Robinson kept the the free exercise of her religion as she
cars, houses and home fur- bible in a Ziploc bag to pre- chose to exercise it, which interfered
nishings, also enable them serve it. She did not use it with her right to choose which items
to protect items like the regularly, and only took it to exempt.
family bible. But what hap- Craig Robins out to show her children and The bankruptcy court denied the
pens if that bible is an fellow church members. The motion. Undeterred, Mrs. Robinson
exceptionally rare collector’s item debtor owned other bibles, which she then appealed to the U.S. District
worth a tidy sum? The trustee object- used to pray, including several copies Court, arguing that the bankruptcy
ed to Mrs. Robinson’s exemption. of the Book of Mormon that did not court’s decision ignored the plain
Just a few weeks ago, the United have collector value. meaning and structure of the statute,
States Court of Appeals for the Seventh Years later, when she filed her as well as the judicial rule that bank-
Circuit ruled against the trustee and Chapter 7 bankruptcy case, she ruptcy exemption statutes should be
held that it was fully exempt. Hagan v. exempted the bible but the trustee construed liberally in favor of the
Robinson (In re Robinson), 14-3585 objected. The debtor relied on the debtor.
(7th Cir. Feb. 4, 2016). typical state exemption statute that The district court agreed with the
In the Robinson case, the debtor, permits debtors to protect a bible. debtor and reversed the bankruptcy
while working at the local public However, the court sustained the court, stating that the legislature did
library in 2003, was permitted to keep trustee’s objection, stating that “allow- not place monetary limitations on cer-
any books she found while cleaning ing the debtor’s exemption would vio- tain items such as bibles.
out a storage area. While cleaning, she late the intent and purpose of the This time the trustee appealed, now
found the Book of Mormon, which she statute,” namely “to protect a bible of to the circuit court, which started its
later authenticated as a first edition, ordinary value so as not to deprive a analysis by looking at the statute,
one of only 5,000 copies printed. At debtor of a worship aid.” (Continued on page 25)

The Case of Natural Born Vs. Native Born
The eligibility for President 2016 question
________________
By Justin Giordano
The 2016 contest for the Republican
nomination for president of the United
States has seen its shares of surprises,
unexpected twists and turns and con-
tentious debates typically associated
with the nomination process that takes
place every four years.
In this 2016 nomination contest an
issue that is not generally a main con-
cern is the “legal” eligibility of a candi-
date running for the nomination of his
party. That is not to say that this has not
been raised on prior occasions. In fact,
in the 2008 during the Democratic Party
nomination race and later during the
presidential election itself then candi-
date and now President Obama had
similar questions raised about him. The
charge in his case dealt with the charge
that he was born in Kenya and not
Hawaii. In the same year Senator
McCain, the Republican Party presi-
dential nominee also faced equivalent,
if not exactly the same challenges. In
Senator McCain’s case he was born in
the Panama Canal zone, which was at
the time an American territory, but not
on the American mainland. Obama had
several suits filed against him challeng-
ing his eligibility to run and mostly,
once he secured his party’s nomination,
to prevent him from assuming office.
The better known of these lawsuits
being the Berg v Obama case, filed by
Philip J. Berg, a Democrat and former
deputy state attorney general, and the
Essek v Obama case filed by Daniel
John Essek. The former lawsuit failed
for lack of standing while the latter for
lack of subject matter jurisdiction.
Senator John McCain also had to
contend with lawsuits, or threat of
same, along these lines. In his circum-
stance the U.S. Senate drew and voted
on a resolution that affirmed his natu-
ral born status and ascertained his eli-
gibility to run for the highest office in
the land, basically putting the matter to
rest in his race for the White House.
Moving forward to the 2016, Senator
Ted Cruz, a leading candidate for the
Republication nomination, was born in
the province of Alberta in Canada, thus
clearly on foreign soil. His mother was
and is an American citizen, having been
born in the state of Maryland while his
father was a resident of the United
States born in Cuba. Senator Cruz’s par-
ents were working in the oil industry in
Canada at the time of his birth.
Consequently the issue of his eligibility
to run for president of the United States
comes to this — what does a “natural
born citizen” mean in its fullest scope.
The U.S. Constitution under Article II,
THE SUFFOLK LAWYER – MARCH 2016 19
AMERICAN PERSPECTIVE
section 1, Clause 5, spells out who has lived in the U.S. for That status was gratuitously conferred
what the requirements neces- five years or more, at least on him by Canadian law premised on
sary for eligibility as follows: two of those years after the his being born on Canadian soil.
“No person except a natural age of 14. If the mother fits It’s worth underscoring that the
born Citizen, or a Citizen of those criteria, the child is a Supreme Court, although not directly
the United States, at the time U.S. citizen at birth, regard- ruling on a case focusing strictly on the
of the Adoption of this less of the father’s nationali- definition of “natural born citizen,” has
Constitution, shall be eligible ty. Senator Ted Cruz fits the nonetheless long recognized that there
to the Office of President; nei- requirements of this law to are two sources that are considered
ther shall any Person be eligi- the letter. highly valuable in understanding con-
Justin Giordano
ble to that Office who shall In the broader context in stitutional terms and they are the
not have attained to the Age of thirty- addition to the above, individuals who British common law (Smith v.
five Years, and been fourteen Years a are born outside the United States are Alabama, 124 U.S. 465, 478 (1888),
Resident within the United States.” also considered natural born citizens if and the enactments of the First
Putting the question even more sim- both parents who are citizens, provid- Congress) (Wisconsin v. Pelican Ins.
ply does “natural born citizen” mean ed either parent has lived in the United Co., 127 U.S. 265, 297 (1888). Both
that an individual has to be a “native” States for any period of time. Also con- of these sources confirm that the origi-
born in order to qualify as natural born sidered natural born citizens are indi- nal meaning of the phrase “natural
citizen and thus eligible to run for the viduals born outside the United States born citizen” includes persons born
presidency of the United States? to one parent who is an American citi- abroad who are citizens from birth
Obviously this issue is uniquely perti- zen and the other who is an American based on the citizenship of a parent as
nent to the presidential office and no national, the latter meaning that that has been discussed in detail above.
other elected office. It has been estab- parent is from an outlying possession More specifically, the British prac-
lished law that for an individual to run of the U.S. The proviso is that the citi- tice, which were the laws in force in
for any other federal or state office, be it zen parent has lived in the United the 1700s in the original thirteen
as mayor, congress, or governor, there States or its possessions for at least one colonies prior to the Revolutionary
is no natural born citizen requirement, year prior to the birth of the child. War and the founding of the United
only the requirement to be a naturalized One way to sum all of this up is that States, recognized that children born
citizen and certain residency mandates anyone that does not need to go outside of the British Empire to sub-
depending on the elected office sought. through any naturalization proceed- jects of the Crown were considered
Prior to addressing directly the “nat- ings is considered a natural born citi- subjects (i.e. put in modern terms citi-
ural born citizen” it’s worth noting that a zen. A non-natural born citizen has to zens of Great Britain) themselves and
situation very much mirroring the cur- go through the process of becoming a in fact the term “natural born” was
rent one occurred in the 1968 presiden- naturalized American citizen by legal- explicitly used to describe the status
tial election cycle. That year running for ly migrating to the United States and of these children. This language is
the nomination of the Republican Party becoming a permanent resident, i.e. a found in the British Nationality Act of
was George Romney, the father of the “green card” holder. The permanent 1730 as well as in the case United
2012 Republican presidential nominee resident status will enable that individ- States v. Wong Kim Ark, 169 U.S. 649,
Governor Mitt Romney. George Romey ual to apply for U.S. citizenship after a 655–72 (1898). Furthermore, lan-
was born in Mexico from American par- five-year period if he/she so wishes. guage echoing the aforementioned is
ents. However there was no issue raised Next that individual will have to meet found in the Blackstone’s
as to Romey senior’s eligibility to run or all other legal requirements set by law Commentaries (pg. 354-63). The
serve had he won the presidency. (such as not being a felon or having Blackstone Commentaries were very
First it must be pointed out that for lied on the application to be granted familiar to and widely read by the
those who state that the matter of “nat- permanent resident status), passing a framers of the constitution (many of
ural born citizen” is not a settled issue test administered by the INS whom were part of the First Congress)
given that the United States Supreme (Immigration and Naturalization as well as the justices of the original
Court has never taken a case that dealt department), and taking an oath of Supreme Court who were quite versed
directly with said issue are indeed cor- allegiance to the United States in a for- in this subject matter.
rect. Unquestionably the high court has mal swearing in ceremony. Will the current Supreme Court ever
never provided any definitive interpre- As a side issue, which has been agree to hear a case directly pertaining
tation regarding the full breath and lim- brought up in the Senator Cruz situa- to the meaning of “natural born citi-
its of “natural born citizen.” However it tion, pertains to the dual citizenship zen” or does it consider this a settled
would also seem quite evident, if only case. In fact that has no bearing simply matter? Based on historical precedent
by extrapolation of the court’s historical because any nation can opt to bestow it would seem that the high court is not
actions or lack thereof, that it did not its citizenship on an individual. The inclined in the least to take up the
wish to intervene on this question. If it key point is whether an individual has issue. But then again the U.S. Supreme
had wanted to do otherwise there is lit- taken an active step to seek or even Court, while steeped in American legal
tle doubt that there was plenty of oppor- accept that citizenship by taking an tradition, has not always been averse to
tunity to give voice to the question over oath such as in a naturalization pro- taking up contentious matters that
the two centuries plus since the creation ceeding. And incidentally Canada does many experts never predicted they
of the court and the nation for which it have such a proceeding; a legal immi- would. As usual only time will tell.
interprets its constitution. grant can apply for citizenship after a
As it stands we are left with federal period of time (I believe three years). Note: Justin A. Giordano, Esq. is a
law, in 8 U.S. Code, Section 1401. All information available indicates that professor of Business & Law at SUNY
Under said law all that is required is Senator Cruz has never taken any oath and also teaches Constitutional Law at
that the mother be an American citizen or steps to become a Canadian citizen. John Jay College of Criminal Justice.
20
Did You Say Taxable Partnership?
— in the year that the audit or any judi-
cial review is completed (the “adjust-
ment year”), and the tax resulting from
such adjustments will be computed at
the highest marginal rate for individuals
or corporations without regard to the
character of the income or gain.
A “taxable partnership”
This marks an important change in
the audit of closely held partnerships.
The IRS will collect the tax from the
partnership, even if the persons who
were partners in the reviewed year are
no longer partners in the adjustment
year. Stated differently, the current-
year partners will bear the economic
burden even though the adjustments
relate to a prior year in which the com-
position of the partnership may have
been different.
Partnerships will have the option,
however, of demonstrating that the
adjustment would be lower if it were
based on certain partner-level informa-
tion from the reviewed year rather
than imputed amounts determined
solely on the partnership’s information
in such year. This information
could include amended returns of part-
ners opting to file, the tax rates appli-
cable to specific types of partners (e.g.,
individuals, corporations), and the type
of income subject to the adjustment
American Mock Trial Association Regional Competition
ise: Justice John Leo, the chair of the
Academy of Law’s Strategic Planning
Committee, Justice Jeffrey Arlen
Spinner, Justice James Quinn, Judge
James Matthews, Judge James
McDonaugh, and Support Magistrate
Aletha Fields.
The top eight teams from the CI
regional continue in the national cham-
pionship series by competing in March
in an Opening Round Championship
tournament in Wilmington, Delaware,
and the top teams from that and other
similar tournaments being held around
the United States will travel to
Greenville, South Carolina in April for
the National Championship Tourna-
ment. Those moving on were: two
teams from Fordham Lincoln Center
(one of which went undefeated through
the four rounds), two teams from
Columbia University, Tufts University,
St. John’s University, New York
University and College of the Holy
Cross. William Floyd High School
graduate Vincent Kappel whose family
attended the tournament is a member
of the Fordham Lincoln Center team.
Mr. Kappel’s high school coach,
William Hennessey, attended round
three.
THE SUFFOLK LAWYER – MARCH 2016
(Continued from page 1)
(e.g., ordinary income, dividends, cap-
ital gains).
Important exceptions
Under the BBA, a partnership with
100 or fewer partners is permitted to
elect out of the new rules, in which
case the partnership and partners will
be audited under the general rules
applicable to individual taxpayers.
In order to qualify for this “small
partnership” election, each partner of
the partnership must be an individual, a
C corporation, an S corporation, or the
estate of a deceased partner. Another
partnership and a trust cannot be part-
ners of an electing small partnership.
Among other things, it should be
noted that the election is to be made on
an annual basis, it must be made on a
timely filed partnership return, and the
partnership must notify the partners of
the election.
A partnership that does not qualify
for the small partnership election, or
which does not elect to be treated as
such, will be permitted (in accordance
with rules to be issued by the IRS),
as an alternative to taking the adjust-
ments into account at the partnership
level, to pass the adjustments along to
its partners by issuing adjusted Form
K-1s to the reviewed-year partners, in
which case those partners (and not the
The local Family and Matrimonial
Bar were well represented in our judg-
ing pool. Evie Zarkadis and Francine
Moss were two stellar presiding
judges, and Jennifer A. Mendelsohn,
the treasurer for the Suffolk Academy
of Law, served as a scoring juror in one
round and the presiding judge in anoth-
er. Similarly, the criminal bar had a sig-
nificant turnout with each of Scott
Lockwood and John Powers presiding
over two trials. Lawyers from both the
Legal Aid Society and the District
Attorney’s office also volunteered. The
Abbates, Mary Beth and John, worked
all weekend long, and each of them
presided over four trials.
“This was a terrific event,” said
Nancy LeJava, former assistant district
attorney. “Not only did we get to see
incredibly talented undergrads, but
also I had the chance to reconnect with
so many old friends before and after
the trials.”
Numerous law student members
from the Touro College Jacob D.
Fuchsberg Law Center contributed to
make the tournament successful. Dana
Mangiacapra not only served as a scor-
ing juror in all four rounds, but also
she, Alida Marcos and Michael
partnership) will take the adjustments
into account on their individual returns
in the adjustment year through a sim-
plified amended-return process.
A partnership must elect this alterna-
tive not later than 45 days after the date
of the notice of partnership adjustment
(a “6226 election”). Where the election
is made, the reviewed year partners
will be subject to an increased interest
charge as to any tax deficiency.
Looking ahead
Because the BBA marks a signifi-
cant change in the audit of partner-
ships, and because it applies to both
existing and new partnerships, its
effective date is delayed: the new rules
will first become effective for returns
filed for partnership tax years begin-
ning after 2017.
Until then, the IRS should have suf-
ficient time to promulgate any regula-
tions to implement the changes. It
should also afford partnerships the
time to adjust to the new audit regime,
and especially to the new default rule
that applies to every partnership unless
the partnerships elects out.
Most partnerships that qualify will
likely make the annual election to be
treated as a small partnership.
However, many small partnerships will
not qualify for this election because
(Continued from page 1)
Giammarusco were instrumental in
assisting Academy of Law Dean Harry
Tilis in organizing the tournament. In
addition, the Touro student leaders
spoke to the undergraduates about the
unique opportunities Touro makes
available under the dynamic leadership
of Dean Patricia Salkin who kindly
opened the auditorium at the law
school for the closing ceremonies.
Individual award winners included
Andrew Nassar from Tufts University,
who received a perfect score in his role
as a witness, as did Molly Stewart from
Fordham Rose Hill, in her role as a
criminal defense attorney. Chosen by
their competitors, Queensborough
Community College won the Spirit of
AMTA Award, as the team that best
exemplified good sporting conduct and
positive energy, which these events
generate.
In what is believed to be a first, a
team of all freshman students without
an attorney coach participated, the
SUNY Albany team, who picked up
two ballots during the weekend.
Monroe College also picked up two
ballots in its first year participating in
the AMTA events. Siena College,
Fairleigh Dickenson University, The
they include trusts or other partner-
ships as partners.
In any case, partners and partner-
ships will have to ensure that their part-
nership agreements address the new
rules. This may include whether to
elect out of the new regime or to elect
to pass-through the adjustments to the
review-year partners.
Partnerships may also want to
include indemnity provisions in their
agreements, pursuant to which current
partners and former partners of a part-
nership will agree to indemnify the
partnership or each other for their pro
rata share of any deficiencies resulting
from an IRS audit of the partnership.
This may be especially important to
transferees of partnership interests,
including potential new investors, who
are also likely to insist upon increased
levels of due diligence before acquir-
ing such an interest.
I don’t know about you, but the
years seem to be going by faster and
faster. Before you know it, these rules
will go into effect. Don’t wait. Start
your preparations now.
Note: Lou Vlahos, a partner at
Farrell Fritz, heads the law firm’s Tax
Practice Group. Lou can be reached at
(516) 227- 0639 or at lvlahos@farrell-
fritzcom.
King’s College and CCNY won an
aggregate of 11 ballots.
The Suffolk Academy of Law is giv-
ing all volunteers 50 percent off of a
future live Academy program. Local
businesses also supported the tourna-
ment — Love Sushi, 26 North
Research Place, Central Islip (near the
Home Depot) and Foo Chow Kitchen,
142 Wheeler Road, Central Islip (on
the southwest corner with Motor
Parkway) are offering a 20 percent dis-
count to volunteer judges.
This tournament joins the American
Collegiate Moot Court competition
(held in November) and the NYSBA
sponsored high school mock trial tour-
nament as outstanding opportunities
for SCBA members to enjoy socializ-
ing and networking with colleagues in
conjunction with valuable public legal
education programs and the develop-
ment of our profession.
Note: Harry Tilis is the Dean of the
Suffolk Academy of Law, a member of
the SCBA Board of Directors and of the
Executive Committee of the Suffolk
County Criminal Bar Association and
a trial and appellate practitioner in
criminal cases.

Bench Briefs (Continued from page 4)
Nasser Mansour, and Ali Mohammed,
as the application failed to submit evi-
dentiary proof of compliance with the
personal service provisions of CPLR
§308 regarding “due diligence” for
those defendants served by the “nail
and mail” method pursuant to CPLR
§308(4). This was sufficient to estab-
lish jurisdiction over said defendants,
not merely a showing of several
attempts to serve the defendants at
their residences without a showing that
there was first a genuine inquiry about
the defendants’ whereabouts and place
of employment; and failure to submit
an affidavit: stating whether or not the
defendant is in military service and
showing necessary facts to support the
affidavit; or if the plaintiff is unable to
determine whether or not the defendant
is in military service, stating that the
plaintiff is unable to determine that, as
requires by 50 USCS §521[b].
Motion to dismiss granted; since all
five causes of action may be character-
ized as those for economic loss due to
alleged product failure, all claims were
dismissed.
In Sears Ready Mix, Ltd. V.
Continental Tire the Americas, LLC
a/k/a Continental Tire AG and Dave
Kunzler Tire Service, Inc., d/b/a Dave
Kunzler Tire Service, Index No.:
9271/2014 decided on June 17, 2015,
the court granted the motion by defen-
dant for dismissal of the first, second,
third, fourth, and fifth causes of action
asserted by plaintiff against defendant
Continental.
In the complaint, plaintiff alleged
that on July 30, 2012, while plaintiff’s
truck was en route to a job site, two
tires on the truck blew out causing
plaintiff to sustain damage to the truck,
as well as monetary damages related to
Letters of Intent (Continued from page 17)
to seller’s principals and “conditions to
closing” provisions, which set forth the
conditions that must be satisfied before
the agreement may be fully executed.
A letter of intent can of course have as
many additional provisions as the par-
ties require; however, the purpose of
the letter of intent is to streamline
negotiations, not burden them. Thus,
provisions should not be mindlessly
added in a letter of intent when they are
better suited to be part of the negotia-
tions of the definitive agreement.
The utility of a letter of intent is in its
ability to address major deal-breakers
and to streamline negotiations early on
in the transaction process. There can be,
however, a fine line between developing
a thorough plan for reaching an ultimate
agreement and entering into a binding
THE SUFFOLK LAWYER – MARCH 2016
delayed production of plaintiff’s con-
crete work. Defendant Dave Kunzler
Tire Service, Inc. d/b/a Kunzler Tire
Service is alleged to have sold the sub-
ject tires to the plaintiff. Continental
now moved pursuant to CPLR
§3211(a)(7) for dismissal of all causes
of action. In deciding the application,
the court noted that the economic loss
rule provides that tort recovery in strict
products liability and negligence
against a manufacturer is not available
to a downstream purchaser where the
claimed losses flow from damage to
the property that is the subject of the
contract, and personal injury is not
alleged or at issue. The rule is applica-
ble even where the allegedly defective
product is or may be unduly hazardous.
Here in rendering its decision, the
court pointed out that each of plain-
tiff’s five causes of action was
premised upon property damage and
consequential damages from the
allegedly defective tires. Accordingly,
since all five causes of action may be
characterized as those for economic
loss due to alleged product failure, all
claims were dismissed.
Honorable William B. Rebolini
Motion to compel disclosure of
housing program records in personal
injury matter denied; records not
shown to be material and necessary to
the defense of the action.
In Sonja Hawkins v. Brook Alyssa
Simeone and Chris D. Simeone, Index
No.: 3180/2012 decided on November
4, 2015, the court denied the motion to
compel to the extent that it sought dis-
closure of records from the housing
program that provides services to the
plaintiff. The court stated the pertinent
facts as follows: plaintiff commenced
the action to recover damages for per-
contract. Drafters should be cautious,
with the addition of too many provi-
sions as some courts have found provi-
sions within a letter of intent to be bind-
ing, despite the objectives of the parties,
where the parties have agreed upon all
of the salient terms and have left little,
if anything, left to negotiate.1 Most
importantly, each provision should be
clearly designated as either binding or
non-binding so that the parties may reap
the greatest benefits of their letter of
intent without risking entering into an
undesirable binding contract.2
Note: Stella Lellos is a partner in
Rivkin Radler’s Corporate Practice
Group, where she advises companies
from startup to maturity and has signif-
icant experience in all aspects of com-
plex corporate transactions. She can be
sonal injuries allegedly sustained as
the result of a motor vehicle accident.
The defendants sought an unrestricted
authorization to obtain records from
the Concern for Independent Living,
which operates a group home in which
plaintiff resides.
In rendering its decision, the court
noted that while there shall be full dis-
closure of information that is material
and necessary in the defense of an
action, a party is not entitled to unlim-
ited and uncontrolled unfettered dis-
closure. Here, since the defendants
failed to demonstrate how records from
a housing program that provided serv-
ices to the plaintiff were either materi-
al or necessary to the defense of the
action, the application to compel their
disclosure was denied.
Complaint to be dismissed unless the
plaintiff appeared for a deposition and
appeared for an independent medical
examination within Suffolk County;
plaintiff failed to establish that travel-
ing from his home in Florida to New
York to be deposed and to submit to a
medical examination would cause
undue hardship.
In Thomas Shelton v. Maurocio O.
Larrea, Index No.: 31012/2012 decid-
ed on February 3, 2015, the court
granted the defendant’s motion to dis-
miss the complaint to the extent that
the complaint was to be dismissed
unless the plaintiff appeared for a dep-
osition and appeared for an independ-
ent medical examination within
Suffolk County.
The court noted that the determina-
tion whether to strike a pleading for
failure to comply with court-ordered
disclosure lies within the sound distri-
bution of the trial court. The court
pointed out that the plaintiff did not dis-
reached at: stella.lellos@rivkin.com or
(516) 357-3373.
Note: Sean Simensky is an associate
in Rivkin Radler’s Corporate &
Commercial Practice Group where he
concentrates his practice on general
corporate representation of private
national and international companies.
He can be reached at (516) 357-3227
or sean.simensky@rivkin.com.
1 ‘agreement in principle’ and a ‘letter of intent,’
See, e.g., Brown v. Cara, 450 F.3d 148 (2d
Cir. 2005) (explaining that New York courts
apply a four factor test to determine whether a
preliminary agreement is enforceable as a con-
To Advertise in
The Suffolk Lawyer
Call 631-427-7000
21
pute that he adjourned the deposition
scheduled for September 26, 2013 and
that he continued to adjourn deposi-
tions for December 16, 2013, April 16,
2014, June 20, 2014, and October 1,
2014. Plaintiff’s contention was that he
adjourned the depositions for “personal
reasons” and he submitted that he is
readily available to submit to an elec-
tronic/digital/live deposition in the state
of Florida but cannot return to the state
of New York for the EBT and IME.
In rendering its decision, the court
stated that depositions of parties to an
action are generally held in the county
where the action is pending. And the
defendant who will retain a doctor in
whom the defense has confidence and
who is in a position to testify at the
time of trial will generally specify the
location and time of the examination.
Since plaintiff failed to establish that
traveling from his home in Florida to
New York to be deposed and to submit
to a medical examination would cause
undue hardship, the deposition and
independent medical examination of
plaintiff will be conducted within the
county in which the action is pending.
Please send future decisions to
appear in “Decisions of Interest” col-
umn to Elaine M. Colavito at
elaine_colavito@live.com. There is no
guarantee that decisions received will
be published. Submissions are limited
to decisions from Suffolk County trial
courts. Submissions are accepted on a
continual basis.
Note: Elaine Colavito graduated
from Touro Law Center in 2007 in the
top 6 percent of her class. She is an
associate at Sahn Ward Coschignano,
PLLC in Uniondale, concentrating her
practice in matrimonial and family
law, civil litigation and immigration
tract: “(1) whether there is an express reserva-
tion of the right not to be bound in the absence
of a writing; (2) whether there has been partial
performance of the contract; (3) whether all of
the terms of the alleged contract have been
agreed upon; and (4) whether the agreement at
issue is the type of contract that is usually
committed to writing” (citing to Adjustrite
Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d
543 (2d Cir. 1998)).
2
See Cohen v. Singer, 2001 U.S. App. LEXIS
2435 (2d Cir.) (holding that where a document
explicitly “characterizes the agreement as an
and explicitly makes binding agreement ‘subject
to and contingent upon’ formal agreement
between the parties’” it is not a binding contract).
22
“Technological Competence,” a New Ethical Obligation
• Collecting ESI from your client
while preserving the integrity of
that ESI.
• Producing non-privileged ESI in a
recognized and appropriate manner.
• Selecting a qualified expert in e-dis-
covery technology.
If you, as an attorney, do not feel
comfortable in your ability to meet
these basic needs of e-discovery, then
ethically, and as a matter of concern
over professional liability, you should
consider associating a technologically
competent litigator of counsel.
Cybersecurity, an ethical and pro-
fessional liability issue
Attorneys have always considered
themselves guardians of their clients’
privacy and custodial trustees of the
property and documents of their
clients. Now, many of the documents
important to clients are maintained in
electronic form on a variety of comput-
ing devices in electronically insecure
and vulnerable law offices. Storing this
material in the cloud makes it even
more vulnerable and insecure.
Recently, the computers of a number
of law firms have been infected with
ransomware and the attorneys have been
forced to buy back access to data on
their computers after hackers had locked
them out. Small firms have been forced
to pay up to $10,000 to regain access to
their own computers and there is no
guarantee that after paying the ransom
that their data is free from infection with
the virus which originally compromised
their systems. Unfortunately, such
attacks also compromise client data as
well as critical firm data that may have
been stored on the infected machines
end any of the networks with which they
are associated.
Few, if any, law firms have conduct-
ed a cybersecurity audit, and most law
firms do not have well-established
cybersecurity policies with respect to
client and firm critical data access by
laptops and mobile devices operating
from locations remote to the law
office and often over insecure public
networks at places such as bars and
coffee shops.
In addition to the economic loss
lawyers and law firms can suffer as a
result of a cybersecurity breach, cer-
tain violations of the Health Insurance
Portability & Protection Act (HIPPA)
can lead to criminal prosecution, as
well as civil liability.
Cyber liability insurance
The most important single act any
attorney can do is check their profes-
sional liability insurance policy and
determine whether they are covered
for losses associated with cybersecuri-
THE SUFFOLK LAWYER – MARCH 2016
ty breaches, particularly the cost of
defending litigation brought by those
clients affected by the breach. Do not
forget that professional liability insur-
ance is not really meant to shield attor-
neys from sanctions for their lack of
technological competence. Because
this type of insurance policy protects
the insured attorney from liability to
third parties, it is no substitute for
property and casualty insurance.
Therefore, it would be wise to immedi-
ately determine whether your property
and casualty insurance policies cover
the cost of data recovery when the
cause is a cyber security breach or
cyber theft.
One of the more unpleasant reality
checks for attorneys, even in large
law firms, is how difficult it is to
obtain cyber insurance and how large
the deductibles or retained self-
insured risk are for the policies that
are available.
Technologically competent counsel
To satisfy the ethical mandate,
which requires an attorney to associ-
ate with or seek advice from technical
consultants and competent counsel
when cyber issues may be involved, is
not as simple as retaining an expert,
the way personal-injury lawyers
retain the services of expert medical
witnesses.
In the area of cybersecurity, data-
base management, and social network-
ing, working effectively with experts
requires a level of understanding, sadly
lacking among attorneys.
Large firms can afford IT depart-
ments or at least a full-time IT manag-
er, but solo practitioners, small and
medium-sized law firms generally can-
not. As every lawyer who has followed
the constant upgrades of their smart
phone and tablet, and the regular secu-
rity and operational patches to the
Microsoft operating systems and
application software such as Office and
Outlook is now aware, it is becoming
extremely difficult for lawyers to stay
on top of every new trend.
Before undertaking to represent a
client in any kind of litigation, it is
wise to contemplate the observation of
the late Chief Justice Warren Burger,
“There are too many Piper Cub
lawyers at the controls of 747 litiga-
tion.”
In many cases, the duty of techno-
logical competence may require a
higher level of technical knowledge
and ability and an attorney may require
the services of an expert.
Retaining the services of experts
Evaluating the credentials of experts
in technology is no different than
(Continued from page 13)
cross-examining such an expert during
a trial or deposition.
Unless an attorney has sufficient
understanding of the technology the
expert may use to complete the task
for which they have been retained,
that attorney is prima facie, not com-
petent to make the decision about
retaining the expert. Unfortunately,
this lack of competence on the part of
the attorney may only be discovered
in the context of an action for legal
malpractice or a hearing on sanctions
by the court
There is an additional ethical obliga-
tion upon attorneys who engage experts
in litigation. The litigation attorney has a
nondelegable duty to supervise the
expert by remaining regularly engaged
in the work of the expert and educating
the expert about the legal and factual
issues in the case. Ethical Considerations
and Disciplinary Rules mandate that
attorneys ensure that their experts com-
ply with the same ethical obligations that
govern attorneys.
Working Elder-Caregivers
assigned to another employee. It is cru-
cial for the employer to check in with
the employee during the crisis and
refocus the employee after the crisis
has passed. Most important, however,
is to refer the employee to the appro-
priate resources.
It is helpful to realize that in many
instances, the elder-caregiver becomes
the healthcare decision maker, the
bookkeeper, the accountant, the chauf-
feur, the housekeeper/cook and the sec-
retary to the aging or disabled loved
one. It is impossible to wear all of these
hats and wear them well, especially
when someone is juggling their job and
their own family matters. The confu-
sion between Medicare, Medicaid and
Medigap insurance can be extremely
overwhelming, as can the difference
between Community Medicaid and
Institutional Medicaid. Many elder-
caregivers struggle with decisions
regarding taking care of their loved one
at home, in an assisted living facility or
in a nursing home. Asset protection and
the appropriate way to handle financial
matters leaves many people in a dire
state of confusion. When individuals
are made aware of the healthcare choic-
es, government benefits programs, and
the legal and financial options avail-
able, they can more easily navigate the
elder-care landscape, get their loved
one the care and assistance they need,
and keep their focus on their job.
Bringing in outside professionals to
educate employees can be a great ben-
efit to both the staff and to the employ-
Note: Victor John Yannacone Jr. is
an advocate, trial lawyer, and litiga-
tor practicing today in the manner of
a British barrister by serving of coun-
sel to attorneys and law firms locally
and throughout the United States in
complex matters. Mr. Yannacone has
been continuously involved in com-
puter science since the days of the
first transistors in 1955 and actively
involved in design, development, and
management of relational databases.
He pioneered in the development of
environmental systems science and
was a cofounder of the Environmental
Defense Fund. Mr. Yannacone can be
reached at (631) 475–0231, or vyan-
nacone@yannalaw.com, and through
his website https://yannalaw.com.
i
American Bar Association Model Rules of
Professional Conduct.
ii
http://ethics.calbar.ca.gov/Portals/9/docu-
ments/Opinions/CAL%202015-
193%20%5B11-0004%5D%20%2806-30-
15%29%20-%20FINAL.pdf.
(Continued from page 9)
er. Empowering working elder-care-
givers with knowledge and informa-
tion to handle an elder care crisis, or to
plan ahead to avoid the crisis altogeth-
er, promotes job security for the
employee and protects the employer’s
bottom line.
Studies show that giving employees
the tools they need to navigate the
elder-care landscape greatly reduces
absenteeism, downtime and turnover
and promotes productivity and job
security.
Note: Jennifer B. Cona, Esq. and
Melissa Negrin-Wiener, Esq. are part-
ners in the Elder Law firm Genser
Dubow Genser & Cona, LLP, located
in Melville. They practices exclusively
in the field of Elder Law, including
asset protection planning, Medicaid
planning, representation in Fair
Hearings and Article 78 proceedings,
estate planning, trust and estate
administration, guardianships and
estate litigation.
1
National Alliance for Caregiving Study,
AARP Research on Caregiving in the US,
www.aarp.org.
2
MetLife Mature Market Institute Study:
“Metlife Study of Working Caregivers and
Employer Health Care Costs,”
www.metlife.com.
3
Gallup poll: “Caregiving Costs U.S. Economy
$25.2 Billion in Lost Productivity,”
www.gallup.com/poll/148670.
4
National Alliance for Caregiving and AARP,
Caregiving in the U.S. 2009.
5
M. Pitt-Catsouphes, C. Matz-Costa and E.
Besen, “Age and Generations: Understanding
Experiences in the Workplace”.

Health and Hospital Law
patient; no other action is needed.
Second, providers comply with this
duty “merely by advising one to
whom such medication is adminis-
tered of the dangers of that medica-
tion.” Lastly, “our decision herein
should not be considered as an ero-
sion of the prevailing principle that
courts should proceed cautiously and
carefully in recognizing a duty of
care.” (While the court expressly says
that this case is not about preventing
the patient from leaving, I wonder
how long it will be before another
court at another time will say that
knowledge that the patient wanted to
drive home should be imputed to the
provider, requiring some “reason-
able” response in addition to a mere
warning.)
One almost can hear the howls of the
dissenting minority. Citing to weighty
authority and precedent from its own
court the dissent argues that the fore-
seeability of Walsh’s side effects does
not resolve the question of the defen-
dants’ liability because, absent a duty
running directly to the injured party,
there can be no liability in damages,
however careless or foreseeable the
harm may be. “This restriction is nec-
essary to avoid exposing defendants to
unlimited liability to an indeterminate
class of persons conceivably injured by
any negligence in a defendant’s act.”
A physician does not take on a duty
of care to an entire community when
he treats one patient. A provider’s duty
of care is limited to the patient and “to
persons he knew or reasonably should
have known were relying on him for
Trusts and Estates (Continued from page 15)
of his will, the decedent created sever-
al trusts for the benefit of his wife,
daughter and grandchildren.
Significantly, the trust created for the
benefit of the decedent’s daughter pro-
vided for principal distributions to her
in five equal installments at stated ages,
commencing on December 27, 1989,
and concluding on December 27, 2009.
The thrust of the objections asserted
by the daughter were addressed to the
fiduciary’s failure to sell the real prop-
erty located in California, which con-
stituted a portion of the principal of the
testamentary trust created for her ben-
efit, as well as legal fees and commis-
sions. More particularly, the objectant
claimed that the fiduciary’s retention
of the realty constituted a breach of
fiduciary duty that the payments to the
fiduciary’s counsel were unreasonable,
and that commissions or payments to
the fiduciary relating to the rents or
management of the subject property
were excessive.
The fiduciary moved for summary
THE SUFFOLK LAWYER – MARCH 2016
(Continued from page 9)
this service to his patient,” a very small
class at best. The dissent distinguishes
the cases relied upon by the majority
on just this ground — that the actions
of the providers in those cases impli-
cated “a determinate and identified
class” whose relationships with the
patient “have traditionally been recog-
nized as a means of extending and yet
limiting the scope of liability...” In case
after case, so the dissent finds, liability
only was possible based on a plaintiff’s
reasonable reliance on the provider’s
services to the patient combined with
the fact that the provider created the
risk of harm:
The rule of law that emerges from
this line of cases is easily discerned.
In New York, a physician’s duty to a
patient and the corresponding lia-
bility, may be extended beyond the
patient only to someone who is both
a readily identifiable third party of
a definable class, usually a family
member, and who the physician
knew or should have known could
be injured by the physician’s affir-
mative creation of a risk of harm
through his or her treatment of the
patient. I am not aware of anything
— and the majority makes no
attempt to identify anything — indi-
cating that this clear rule has
become so unworkable that the sig-
nificant redefinition of the scope of
a physician’s duty adopted by the
majority is warranted. Under a rea-
soned application of our precedent
to the facts of this case, it is evident
that defendants owed no legal duty
judgment dismissing the objections,
and any related claims for damages or
surcharges, and the objectant opposed
and cross-moved for summary relief in
her favor.
With regard to the principal issue
involving the California realty, the
record revealed that offers had been
made by a corporate purchaser to
purchase the property as early as
2005, for a gross selling price of
$41,330,000.00. Additional offers by
the same purchaser were thereafter
made, with the highest offer being
$43,750,000.00. After the national
decrease in value in the real estate
market, a final offer by the purchas-
er, in January 2009, was to purchase
the property for $34,000,000. 00.
Despite the foregoing, none of the
foregoing offers resulted in a sale of the
property. Indeed, the court noted that
although the fiduciary recommended to
the beneficiaries that the property be sold,
and although the decedent’s spouse
agreed to the sale, the decedent’s daugh-
to [plaintiffs] — or any other mem-
ber of the public who may have
come into contact with, and been
harmed by, Walsh after her dis-
charge — to warn Walsh against, or
prevent her from, driving (citations
omitted).
Under the Court’s decision in this
case, the class of potential plaintiffs
cannot be logically restricted or
identified. ... [E]ven where the
defendant is best positioned to pre-
vent harm, a duty should be
imposed only where “the specter of
limitless liability is not present
because the class of potential plain-
tiffs to whom the duty is owed is cir-
cumscribed by the relationship.” …
[O]ur jurisprudence, both in gener-
al and in the specific context of
physician-owed duties, has repeat-
edly rejected the imposition of a
duty that will have such far-reach-
ing and unmanageable conse-
quences. … [I]t is the responsibility
of the courts when fixing duty to “to
protect against crushing exposure
to liability.” (citations omitted).
The dissent also engages in an inter-
esting and relevant analysis of the pos-
sible social and financial consequences
of the potential outcome of the majori-
ty’s decision, which I will leave to the
interested reader to explore at his or
her leisure.
Lastly, the dissent argues that a line
must be drawn between competing
public policy considerations of provid-
ing a remedy to everyone who is
injured, and extending liability expo-
ter vigorously opposed any sale, and even
threatened to bring a suit to enjoin any
effort to bring a sale to fruition. The
daughter’s deposition testimony con-
firmed that she objected to any sale of the
property and wanted to keep it in the fam-
ily in order to preserve her father’s lega-
cy. The court found that since the daugh-
ter’s individual interest in the property
vested upon her attaining each of the ages
set forth in the testamentary trust for a
distribution of principal, she had the
power, as a co-owner, to prevent its sale,
and the fiduciary, under California law,
lacked the authority to bind any of its co-
tenants to a contract of sale.
Accordingly, based upon the forego-
ing, the court held, as a matter of equi-
ty, that the decedent’s daughter could
not hold the fiduciary responsible for
its inability to sell the California prop-
erty, when it was her obstructionist
behavior that precluded its sale. The
court therefore held she was estopped
from contending that the property
should have been sold and granted the
23
sure almost without limit. Emphasizing
the depth of feeling obviously generat-
ed by this issue, it concludes with
something that this writer has never
before seen; an invitation to the
Legislature to redress the erroneous
majority decision in the very case in
which the dissent is issued:
It is, therefore, my hope that the
Legislature — a which has long
expressed its concern regarding the
impact of the costs of medical malprac-
tice insurance and litigation on the
affordability and availability of med-
ical care — will carefully consider
whether the majority’s holding is con-
sistent with New York’s statutory med-
ical malpractice schemes and the aims
of tort recovery in New York.
As an aside, I wonder whether this
decision broadens the scope of “med-
ical malpractice” liability or whether it
could — or should — be considered to
be an expansion of common law negli-
gence? If the latter, could the new rule
promulgated by the high court be
expanded to other areas of professional
malpractice and to other areas of activ-
ity generally?
Note: James Fouassier, Esq. is the
Associate Administrator of the
Department of Managed Care at Stony
Brook University Hospital, Stony
Brook, New York and Co-Chair of the
Association’s Health and Hospital Law
Committee. His opinions are his own.
He may be reached at: james.fouas-
sier@stonybrookmedicine.edu.
fiduciary summary judgment dismiss-
ing the objections by the decedent’s
daughter on this issue.
On the other hand, the court denied
the fiduciary’s request for summary
relief on the issue of legal fees, finding
that the record was insufficient to
determine their reasonableness.
Finally, the court granted summary
judgment on the issue of commissions,
concluding that the objectant had
failed to demonstrate any basis for
denying commissions in their entirety,
or for not awarding same in the
amount sought.
In re Lowe, NYLJ, June 16, 2015, at
p.27 (Sur. Ct. Suffolk County).
Note: Ilene S. Cooper is a partner
with the law firm of Farrell Fritz, P.C.
where she concentrates in the field of
trusts and estates. In addition, she is
past-chair of the New York State Bar
Association Trusts and Estates Law
Section, and a past-president of the
Suffolk County Bar Association.
24
Invocation of Fifth Amendment Results in Stayed Eviction
In New York State, the Fifth
Amendment attaches the indelible right
to counsel once invoked. Indeed,
“[o]nce a suspect in police custody
unequivocally requests the assistance of
counsel, the suspect may not be asked
any more questions in the absence of
counsel.”5 “A defendant’s unequivocal
invocation of counsel while in custody
results in the attachment of the right to
counsel, indelibly so, meaning that, as a
matter of state constitutional law, a
defendant cannot subsequently waive
the right to counsel unless the defendant
is in the presence of an attorney repre-
senting that defendant.”6 Sworn testi-
mony made in a civil context can
impact a criminal proceeding. Ms.
Moorer could have waived her Fifth
Amendment right in the civil context
had she testified in the landlord tenant
matter. Civil practitioners should not
Pro Bono and Experiential Learning
placements such as at Nassau Suffolk
Law Services. Ms. Dosso says that,
historically, students and Nassau
Suffolk Law Services staff has a more
meaningful placement experience
when students participate voluntarily
for at least 100 hours per semester.
Although this would be more hours
than is required for the pro bono
requirement for admission to the New
York Bar, it is the more successful
internship scenario. Part of the issue is
the staff attorney’s investment of time
for on-the-job training when a student
placement is relatively short term.
Time is limited and funding is short.
Ms. Greenberger of Nassau/Suffolk
Law Services (and a Touro Law gradu-
ate) mentioned the former existence of
a Public Interest Externship at Touro
which included a classroom compo-
nent and was an innovative program to
not only help their clients, but to assist
in creating practice ready attorneys out
of law school. (The Pro Bono Scholar
Pro Bono (Continued from page 6)
legal assistance to Suffolk County
residents who are dealing with eco-
nomic hardship. Nassau Suffolk Law
Services is a non-profit civil legal
services agency, providing free legal
assistance to Long Islanders, prima-
rily in the areas of benefits advoca-
cy, homelessness prevention (fore-
closure and eviction defense), access
to health care, and services to spe-
cial populations such as domestic
violence victims, disabled, and adult
home resident. The provision of free
services is prioritized based on
THE SUFFOLK LAWYER – MARCH 2016
(Continued from page 12)
only advise their clients of this right, idence but her ability to effectively just a line rattled off some movie screen,
but recognize that the court may grant a defend herself against Criminal through the advocacy of the NSLS, its
stay to protect a civil litigant’s Fifth Possession of a Weapon and Criminal invocation allowed her to remain in her
Amendment right against self-incrimi- Assault charges stemming out of the home for nearly a year since the
nation. same alleged facts that resulted in the holdover proceeding was filed.
In Hempstead Housing Authority v. termination of Ms. Moorer’s lease.
Moorer, Judge Scott Fairgrieve found Ms. Moorer’s case shows that time Note: Cory Morris is a civil rights
that Ms. Moorer’s Fifth Amendment and delay will not defeat a litigant’s Fifth attorney, holding a Masters Degree in
rights were more important than any Amendment rights. In some instances, General Psychology and is currently the
delay suffered by the Housing the Constitutional implications, that Principal Attorney at the Law Offices of
Authority. Ms. Moorer was being being the right against self-incrimina- Cory H. Morris. He can be reached at
evicted based on the same events that tion, will trump the interests of the plain- www.corymorris.com
resulted in criminal charges. “It is well tiff or, here, the petitioner.9 Additionally,
settled that a court has the authority to the criminal matter may very well 1
Hempstead Housing Authority v. Moorer, LT-
stay an action pending the outcome of resolve the pending civil matter.10 001957-15, NYLJ 1202745486079, at *1
criminal proceedings.”7 However, “a Although the pendency of a crimi- (Dist., NA, Decided December 16, 2015).
2
Nassau/Suffolk Law Services Committee,
stay is not constitutionally required nal proceeding does not give rise to an Inc., About NSLS (last accessed Jan. 22, 2016),
whenever a litigant finds himself fac- absolute right under the United States http://nslawservices.org/wp/?page_id=2.
ing the dilemmas inherent in pursuing or New York State Constitutions to a 3
Asa J., Law Professor Warns “Don’t Talk To
civil litigation while being the subject stay of a related civil proceeding Police” In Viral Making a Murderer Video,
Copblock (Jan. 21, 2016), available at
of a related criminal investigation.”8 (United States v Kordel, 397 U.S. 1; http://www.copblock.org/152166/law-profes-
The interest at hand was not merely Langemyr v Campbell, 21 NY2d 796, sor-warns-never-talk-to-police-in-viral-video/.
Ms. Moorer’s ability to stay in her res- remittitur amended 21 NY2d 969, 4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
rearg denied 21 NY2d 1040, cert People v. Carrino, 114/12, NYLJ
denied 393 U.S. 934), it has also been 1202745595679, at *4 (App. Div., 2nd, Decided
(Continued from page 8) held that “[there] is no question but
December 16, 2015)(citations omitted).
6
People v Harris, 93 AD3d 58, 66 (2d Dep’t.
that the court may exercise its discre- 2012), affd 20 NY3d 912.
Program has some similarities) tion to stay proceedings in a civil 7
Parker v Dawson, 2007 US Dist LEXIS
action until a related criminal dispute 63068, at *9 (E.D.N.Y. Aug. 27, 2007, Nos. 06-
The concept of experiential learning CV-6191 (JFB) (WDW), 06-CV-6627 (JFB)
instituted by the judiciary, and the pro is resolved. See, e.g., United States v. (WDW), 07-CV-1268 (JFB) (WDW)) (citations
bono task force to improve access to Kordel [supra]; DeVita v. Sills, 422 omitted).
justice are noble, respectable, achiev- F.2d 1172” (Klitzman, Klitzman & 8
Sterling Nat’l Bank v A-1 Hotels Int’l, Inc.,
able and understandable goals. The Gallagher v. Krut, 591 F Supp 258, 175 F Supp 2d 573, 576 (S.D.N.Y. 2001); see
269-270, n 7, affd 744 F2d 955).11 Parker, 2007 US Dist Lexis 63068 at * 9.
only problem is that there is a real need 9
See De Siervi v Liverzani, 136 AD2d 527, 528
for access to justice that is being Further, “[w]hile this will undoubted- (2d Dep’t. 1988).
ignored and the solutions that are ly cause inconvenience and delay to 10
Merchants Mut. Ins. Co. v Arzillo, 98 AD2d
being implemented are creating road- plaintiffs, protection of defendants’ con- 495, 495 (2d Dep’t. 1984).
11
stitutional rights against self-incrimina- De Siervi v Liverzani, 136 AD2d at 528
blocks in their accomplishment. If (external quotation marks omitted and internal
only the right hand knew what the left tion is the more important considera- citations and quotations preserved).
hand was doing. tion.”12 Indeed, for Ms. Moorer, the right 12
Dienstag v Bronsen, 49 FRD 327, 329
against self-incrimination is more than (S.D.N.Y. 1970) (citations omitted).
Note: George Pammer is a 3rd year
law student at Touro Law School.
George is a part-time evening student Expanding Definition of “Value” (Continued from page 10)
and the President of the Student Bar
Association. He has also held the posi- change their hiring standards. operating in Asia. In August 2015, BNY
tion of Vice-President in the SBA as well Although certainly not dispositive, it Mellon agreed to pay the SEC $14.8
as in the Suffolk County Bar Association will be much easier to allege improper million to settle FCPA charges in con-
– Student Committee, where he was one motive if the hire in question is not nection with providing student intern-
of the founding members. even remotely qualified for the posi- ships to family members of foreign offi-
1
New York State Bar Association State Bar
tion. Jobs at the world’s leading invest- cials affiliated with a Middle Eastern
News January/February 2016, Vol. 58, No. 1 ment banks, for instance, are highly sovereign wealth fund. You can bet that
coveted and competitive even among the government has its eye on hiring
the best credentialed graduates. Of practices at U.S. companies and issuers
course, “princelings” by definition
tend to have greater access to presti-
operating in different industries and in
other corners of the world. Stay tuned.
gious educational opportunities and
financial need and funding is often may nevertheless be qualified. Second, Note: Jonathan (“Jack”) Harrington
inadequate in these areas. ensure that you follow the same hiring is counsel to Campolo, Middleton &
Furthermore, there is no funding for process for all applicants, regardless of McCormick, LLP. He counsels multina-
the general provision of matrimonial their familial connections. Third, tional corporations and individuals in
or bankruptcy representation, there- ensure your business units and human securities, white-collar, anti-money laun-
fore the demand for pro bono assis- resources department are well trained dering, and Foreign Corrupt Practices
tance is the greatest in these areas. If and resourced to identify potentially Act (FCPA) matters. He also represents
you would like to volunteer, please problematic candidates and ensure that clients in litigation and appeals before
contact Ellen Krakow, Esq. 631 232- any hiring is done in accordance with state and federal courts and in commer-
2400 x 3323. your company’s anti-corruption policy. cial arbitrations, often with an interna-
Of course, when in doubt, consult with tional component. Jack’s combination of
Note: Ellen Krakow Suffolk Pro an FCPA expert. legal, policy, and international business
Bono Project Coordinator Nassau The princeling investigations have not experience enables him to advise clients
Suffolk Law Services. been limited to financial services firms on transactions and strategy.

Dealing With Interruptions
shy about telling a colleague that
you’d love to hear about his or her lat-
est vacation but that you can’t do so
until you’ve completed your task. Or
set a time for coffee, lunch or a drink
outside of work instead of chatting
during regular work hours.
When you learn to set expectations
and follow through, staff and col-
leagues know when they will have
access, so they will hold questions. You
may even find that when staff can count
on your availability, they learn how to
resolve some issues on their own.
Keep these same concepts in mind
when interacting with others in your
office. Respect their time, just as you
expect them to respect yours. If you
don’t want to be interrupted with
“quick” questions, don’t do it to oth-
ers. Ask if you can schedule a time to
talk. Save up questions for those you
work with frequently to ask all at once,
preferably at a designated time.
Client interruptions
While client interruptions may be
more difficult to ignore than those
Mrs. Robinson Exempts the Book of
Mormon in Bankruptcy
which is slightly similar to New
York’s. In relevant part, it states that
“the following personal property is
exempt from judgment: necessary
wearing apparel, bible, school books,
and family pictures of the debtor and
the debtor’s dependents.”
The court, which consisted of a
three-judge panel, stated that when the
language of a statute is clear, as is the
case here, the court must give it effect
and should not look to extrinsic aids
for construction.
The court found that there was no
dispute that the Book of Mormon falls
within the meaning of a bible. The
court pointed out that the legislature, in
enacting the exemption statute used
here, did not intend to limit the value
of certain items like bibles, whereas
they did include dollar limitations for
other items.
The court also shot down the
trustee’s arguments that the debtor was
only entitled to exempt one bible, and
that the term “bible” is susceptible to
various interpretations and requires an
examination of the legislative history
to discern the legislature’s intent.
The trustee argued that only bibles of
“negligible” value should be exempt.
However, the court stated that the
trustee “is asking us to read a restriction
— a dollar-value limitation — into the
statute where one does not appear.”
The bottom line was that the exemp-
THE SUFFOLK LAWYER – MARCH 2016
(Continued from page 12)
from co-workers, it’s possible to pre-
vent them — or at least a significant
portion of them — with good planning
and communication. For example, if
you call a client but don’t get through,
leave a message with the best time to
reach you during the time you’ve
blocked out to make and answer calls.
Similarly, if you’re in the middle of
important work and don’t want to be
interrupted, have an assistant screen
your calls or use an answering service,
just as if you were in a client meeting.
Instruct them to provide callers with a
definite time when you will return
calls to avoid repeated client calls, and
then follow through.
Technology interruptions
Technology such as smart phones,
social media, emails and text mes-
saging constitutes another major dis-
traction, and they can give people
the sense that you are available 24/7.
But just because you have a cell
phone doesn’t mean you should
always be available.
It may take some discipline, but you
(Continued from page 18)
tion statute was not ambiguous and the
debtor was entitled to her Book of
Mormon. The plain wording of the
statute applied. The trustee, who had
taken possession of the bible, had to
return it to the debtor.
This decision makes one wonder
whether some debtors can purchase
expensive bibles as an asset protection
strategy. However, those debtors in
New York will not have such luck.
Our state’s bible exemption, which
is found in CPLR section 5205(a)(1),
states that “religious texts” and other
books are exempt, but limits the
value for items in this category to
$500. Meanwhile, the federal exemp-
tions do not include a bible, but per-
mit the exemption of books, subject
to a limit of $400 per item, as indi-
cated in Bankruptcy Code section
522(d)(3).
So here’s to you, Mrs. Robinson.
Note: Craig D. Robins, a regular
columnist, is a Long Island bankruptcy
lawyer who has represented thousands of
consumer and business clients during the
past twenty-nine years. He has offices in
Melville, Coram, and Valley Stream.
(516) 496-0800. He can be reached at
CraigR@CraigRobinsLaw.com. Please
visit his Bankruptcy Website:
www.BankruptcyCanHelp.com and his
Bankruptcy Blog: www.LongIslandBank-
ruptcyBlog.com.
can schedule time for technology in
the same way that you schedule time
for staff. Only check email at specified
times during the day, and turn off
email and social media notification
sounds and pop-ups. Designate a block
of time for social media, and exit out
of those programs on your computer
when you’re not actively using them.
Turn off your cell phone when you are
working on a focused task.
Self-induced interruptions
Some interruptions are self-created.
They can occur as a result of boredom,
procrastination, or just feeling over-
whelmed. Simply becoming more
aware of these interruptions can help
to eliminate them. For example, when
you are working on a task and some-
thing unrelated comes to mind that you
need to do or remember, those
thoughts can easily distract you.
Instead of using brainpower to try to
remember or wasting time switching
from what you’re doing to the new
task, simply make a note and continue
working. Process those notes at specif-
Boundaries of Protection
there was no evidence that defendants
engaged in such deception.
In conclusion, the court held that
sufficient evidence existed for the doc-
uments to obtain protection from dis-
closure under Rule 26(b)(4)(B).
Specifically, the court stated:
The documents were prepared not
simply to aid (the expert) in drafting
his report, but rather to form part of the
report itself and were in fact included
in preliminary versions of that report.
They are, in short, drafts of his report.8
The Deangelis decision provides an
important illustration why counsel
must be mindful of all communica-
tions and interaction with a proposed
CPLR Rule 3408 Addressed
guidelines govern the totality of the cir-
cumstances standard. Regardless,
Version 5.0 of the Making Home
Affordable Program Handbook for
Servicers of Non-GSE Mortgages
became available on January 6, 20165.
This Handbook, at least, plays an impor-
tant role in the totality of the circum-
stances standard and should be studied
by both plaintiff and defense counsel
who engage in foreclosure litigation. In
all, educating lenders on the handbook’s
requirements is often the most cost
effective strategy for a borrower, as
opposed to engaging in protracted
CPLR Rule 3408 motion practice, if the
borrower’s ultimate goals are a loan
modification and to avoid foreclosure.
25
ic times during the day to be sure they
don’t get lost.
Realistically, you can’t eliminate
interruptions entirely, but being mind-
ful of them and taking steps to prevent
them can result in a significant
increase in productivity.
Note: Allison C. Shields, Esq. is the
Executive Director of the Suffolk
Academy of Law and the President of
Legal Ease Consulting, Inc., which
provides productivity, practice man-
agement, marketing, business develop-
ment and social media training, coach-
ing and consulting services for lawyers
and law firms nationwide. A version of
this article originally appeared in the
Simple Steps column in Law Practice
Magazine and is adapted from the
book, “How to Do More in Less Time,
the Complete Guide to Increasing Your
Productivity and Improving Your
Bottom Line.”
i
“The Biggest Office Interruptions Are ...,” The
Wall Street Journal, September 10, 2013,
http://online.wsj.com/news/articles/SB1000142
4127887324123004579057212505053076.
(Continued from page 3)
expert witnesses so to maintain protec-
tion from disclosure.
Note: Leo K. Barnes, Jr. a member
of BARNES & BARNES, P.C. in Melville,
practices commercial litigation in
Melville and can be reached at
LKB@BARNESPC.COM.
1
Similar protection is afforded to an attorney’s
communications with an expert witness pur-
suant to Fed. R. Civ. P. 26(b)(4)(C).
2
Fed. R. Civ. P. 26(b)(4)(B).
3
Deangelis v. Corzine, 11 Civ. 7866 (S.D.N.Y.
2016).
4
Id.
5
Id., at 3.
6
Id., at 9.
7
Id., at 10.
8
Id., at 11.
(Continued from page 11)
Note: Andrew M. Lieb is the
Managing Attorney at Lieb at Law,
P.C., a law firm with offices in Center
Moriches and Manhasset. Mr. Lieb
serves as a Co-Chair of the Real
Property Committee of the Suffolk Bar
Association and has been the Special
Section Editor for Real Property in
The Suffolk Lawyer for several years.
1
LaSalle Bank, N.A. v. Dono., 2016 WL
229744 (2d Dept., 2016).
2
US Bank N.A. v. Sarmiento, 121 A.D.3d 187
(2d Dept., 2014).
3
Aurora Loan Services, LLC v. Nelli Chirinkin,
et al., 2016 WL 143780 (2d Dept., 2016).
4
Deutsche Bank Natl. Trust Co. v. Twersky,
2016 WL 314001 (2d Dept., 2016).
5
https://www.hmpadmin.com//portal/programs/
docs/hamp_servicer/mhahandbook_5.pdf
26
Foreign Ownership of Property in the United States
to withhold 10 percent of the gross
purchase price at the closing. The for-
eign investor may apply for any refund
at the end of the tax reporting year
once any applicable taxes have been
paid from the withholding.
Estate and gift tax considerations
As noted above, there is generally
an estate tax imposed on the estate of a
foreign citizen who owns real property
situated in the United States at the time
of death. A foreign citizen receives
only a $60,000 exemption on estate
taxes for any property owned in the
United States at the time of death
(compared to the $5,430,000 exemp-
tion from federal estate taxes that
United States citizens currently
receive), and an estate tax return must
be filed for the estate if the gross estate
exceeds $60,000 in assets located in
the United States. These assets would
include direct ownership of real prop-
Confronting the Expert Under the Sixth Amendment
mine whether the prosecution could
admit a DNA report only by calling
to testify each of the many criminolo-
gists who participated in preparing
the report for the Office of the Chief
Medical Examiner, as the defense
argued, or he could rely solely on the
testimony of the supervising analyst
who made the final assessment of the
data, which is the only witness the
prosecution intended to call to testify.
The defense argued that the testimo-
ny of each lab analyst was necessary
because of the risks of contamination
and the presumptions technicians
make, and because the defendant’s
right to confront them outweighed
any practical difficulties of trial. The
court agreed in part with the defense.
It found that the work performed by
the initial analyst who took the sam-
ple from the victim, and the final
analysis and conclusions of the
“Best Practices” at a Wade Hearing
not appear in the photo array; 2) not to
assume that the officer/detective
knows who the perpetrator is; and 3)
not to ask anyone for guidance during
the viewing process.
According to the best practices
guidelines (again, promulgated by the
NYS prosecutors’ association) the
identifying witness’ words should be
written down or recorded somehow.
This is important because a witness
saying: “If I had to pick someone, I
would pick number three” is a very dif-
ferent response than merely indicating
that the “witness identified number
three.”
THE SUFFOLK LAWYER – MARCH 2016
erty in the foreign individual’s name or
the foreign citizen’s ownership interest
in an LLC set up in the United States.
If a foreign citizen owns real property
in the United States through a foreign
corporation, or through the hybrid struc-
ture discussed above, there is no estate
tax upon the death of the individual
because shares in a foreign corporation
are not considered assets located in the
United States, even if the real property
owned by that entity is located in the
United States. Similarly, a gift by a for-
eign citizen of stock in a foreign corpo-
ration is not subject to gift tax in the
United States. If, however, a foreign cit-
izen wishes to gift real property located
in the United States directly, the donor
of the gift would be subject to a gift tax
on the value of the gift and the recipient
would be subject to reporting require-
ments to the United States government
if any such gifts exceed $100,000 in the
aggregate in any given year.
supervising analyst, were testimonial
in nature and therefore, could be
admitted only by the testimony of the
very individuals who conducted that
work. The court found however, that
“machine driven” testing which was
performed by various technicians was
not testimonial and evidence thereof
could be admitted through the prose-
cution’s proffered supervising ana-
lyst.
In making this decision, the court
noted a significant factor, which dis-
tinguished the case from Williams:
the identification of the defendant. In
Williams, the DNA profile was made
when the defendant was not a sus-
pect. Thus, it was not prepared for the
purpose of identifying the defendant
as the perpetrator. The victim had
made a personal identification of the
defendant as her attacker. In the case
before the Bronx Supreme Court
(Continued from page 14)
Another tactical consideration is
whether you want your client to be
present at the Wade hearing.
Although it is beyond cavil that your
client has a right to be there, there is
a strategic element to perhaps keep-
ing the seat next to you empty. This is
so especially where the testifying
witness is not a law enforcement
agent but, for example, the com-
plainant or the victim, since once
they are on the stand, they have
essentially “doubled down” that your
client is the person who did it.
Human nature tells us that even if the
complainant/victim is mistaken, they
(Continued from page 10)
Other considerations
There are many other issues for for-
eign buyers that arise in connection
with purchasing or investing in real
property in the United States. Title
insurance is a concept that is new to
many foreigners, but it insures that the
purchaser is receiving clear title. At
closing, it is imperative that the for-
eign buyer secure title insurance and
have adequate homeowners and/or lia-
bility insurance.
Land use and zoning issues fre-
quently arise with real estate and it is
important to determine whether the
property is properly zoned for the
intended use of the foreign buyer,
preferably before a contract is signed.
Local zoning laws and regulations may
permit only certain uses for the real
property or place restrictions on
expansion or development of the prop-
erty. If a purchaser wishes to change
(Continued from page 18)
however, the sole evidence linking
the defendant to the crime was the
DNA profile, which resulted from
laboratory analysis. Finding that “the
original profile developed to identify
a suspect is critical,” the court held
that “more scrutiny is necessary of
the initial steps taken by the analyst
who received the specimen and con-
ducted the first stage protocols.” With
this heightened “scrutiny” in mind,
the court was persuaded that the first
analyst did not merely apply a formu-
la, but rather engaged in “assertive
conduct” which rendered her section
of the report “testimonial” and
required her testimony at trial.
Note: Hillary A. Frommer is counsel
in Farrell Fritz’s Estate Litigation
Department. She focuses her practice
in litigation, primarily estate matters
including contested probate proceed-
are less likely to recant their story
once they have taken the witness box;
in fact, they are much more likely to
embellish their original narrative.
Although the prosecution may
object to your decision, the CPL is
unequivocal: the defendant is only
required to be present at trial, and even
then there are two exceptions: if she/he
has waived that right in writing; or if
she/he is so disruptive to the proceed-
ings that the trial cannot continue, see
CPL 340.50.
The Wade court stated that “[a]
major factor contributing to the high
incidence of miscarriage of justice
the use of the property for another pur-
pose or to expand or develop the prop-
erty, great care must be taken to deter-
mine whether that new use or expan-
sion is permissible.
Due diligence, financing options,
property management issues, USA
Patriot Act considerations and even
whether the foreign buyer needs to be
physically present at the closing are all
issues that arise and need to be
addressed by a foreign buyer. Thus, it
is vital that foreign buyers assemble a
team of trusted advisors, including real
estate brokers, engineers, appraisers,
bankers, attorneys, accountants, con-
tractors and property managers to
guide them through the process.
Note: Robert B. Moy is a partner in
the Tax, Trusts and Estate and
Corporate departments of Forchelli,
Curto, Deegan, Schwartz, Mineo &
Terrana LLP.
ings and contested accounting pro-
ceedings. She has extensive trial and
appellate experience in both federal
and state courts. Ms. Frommer also
represents large and small businesses,
financial institutions and individuals
in complex business disputes, includ-
ing shareholder and partnership dis-
putes, employment disputes and other
commercial matters.
1
2016 NY Slip Op 26012 (Sup Ct, Bronx
County Jan. 20 2016).
2
132 S Ct 2221 (2012).
3
2016 NY Slip Op 26012.
4
124 S Ct 1354 (2004).
5
Id.
6
He was joined by the Chief Justice, Justice
Kennedy, and Justice Breyer. Justice Thomas
concurred in the judgment. Justice Kagan,
Justice Scalia, Justice Ginsburg, and Justice
Sotomayor dissented.
7
Id. at 235.
8
This article does not examine all aspects of the
dissent.
from mistaken identification has been
the degree of suggestion inherent in
the manner in which the prosecution
presents the suspect to witnesses for
pretrial identification;” a properly
done Wade hearing ensures more grist
for the justice mill.
Note: Vesselin Mitev is a partner at
Ray, Mitev & Associates, a New York
litigation boutique with offices in
Manhattan and on Long Island. His
practice is 100 % devoted to litigation,
including trial, of all matters including
criminal, matrimonial/family law,
Article 78 proceedings and appeals.

President’s Message
and landlord tenant cases. As March is
Women’s History month we applaud
these extraordinary women.
It is with great pride that we congrat-
ulate SCBA past president (2004-’05)
Scott M. Karson who has been elected
Treasurer of the New York State Bar
(See our picture of Scott at the New York
State Bar’s Annual Meeting in New York
City were many members of the
Executive Committee wore red sneakers
in honor of the late former Court of
Appeals Judge Judith S. Kaye). Scott
continues to do important work at our
bar association. He has authored the
bylaws changes for the Association
including Judicial Screening and has
recently authored a Leadership Guide
for Leadership Development
Committee; he has served on the
Executive Committee of the State Bar
for several years and is just ending his
tenure as the NYSBA Vice President for
the Tenth Judicial District; he also serves
as our delegate to the American Bar
Association.
My dear friend, Supreme Court
Justice William Condon, has been
elected President of the New York State
Supreme Court Justices Association
representing Supreme Court justices
throughout the state. Justice Condon
Zoning Boards of Appeal – How Much Variance Relief is Too Much?
intended to obviate the need for
frequent amendment of ordinances
through the use of their power to
grant variances. Indeed, the dis-
tinction between legislative and
administrative relief from the strict
application of zoning regulations
was sometimes lost or obscured by
the forms of relief that involved
both kinds of power. Therefore, it
is necessary to distinguish sharply
between a variance, which may be
granted by a zoning board of
appeals and an amendment, which
can only be adopted by the legisla-
tive authority of the municipality.
A variance is a use of land author-
ized by a zoning board of appeals upon
a showing of circumstances previously
required by the legislative authority. A
variance does not alter the zoning reg-
ulations or the zoning of the parcel; it
merely permits a use that is proscribed
by those regulations as applied to the
particular parcel. A variance may be
regarded as an amendment if it alters in
any fundamental respect the zoning
scheme articulated in the ordinance. If
a variance is destructive of the purpose
to be achieved by the zoning ordi-
nance, that constitutes a clear invasion
of the legislative process.
THE SUFFOLK LAWYER – MARCH 2016
actively participated in the negotiations
for pay raises for the judiciary. Our bar
association is especially proud of our
leaders who continue to contribute their
expertise in championing the interests
of our members.
The Suffolk County Bar
Association, together with the
Suffolk County Criminal Bar
Association and the Suffolk County
Defender Plan, are in the process of
applying for a full-time administrator
for the 18-b Plan. The revised plan is
in the process of being presented to
the Appellate Division and the Office
for Indigent Legal Services for
approval. Once that takes place, the
search committee will be taking
applications and interviewing candi-
dates. The new administrator’s posi-
tion will be full time and will have a
staff including a deputy administrator
and three other employees.
It is my belief that a full time admin-
istrator will be a new and exciting
change for Suffolk County. The Suffolk
County Defender Plan established in
1965, has grown tremendously over the
years from when it was first established.
There are now more than 300 attorneys
who serve on panels in Supreme,
County, Family and District Courts.
Salkin, 2 N.Y. Zoning Law & Prac. §
29:24 (footnotes omitted)(emphasis
added).
Thus, the role of the ZBA is to pro-
tect the zoning ordinance enacted by
the Town Board; not usurp it:
“A zoning board of appeals cannot
under the semblance of a variance exer-
cise legislative powers ... The legislative
body forms zoning policy in the shape
of a comprehensive plan after ‘reason-
able consideration, among other things,
as to the character of the district and its
peculiar suitability for particular uses’
(Town Law, s 263). The comprehensive
plan, essentially general in scope, may
cause disproportionate injury to a prop-
erty owner and, for the purpose of eas-
ing that injury, the board of appeals
hears and determines individual appli-
cations for relief ‘in harmony with * * *
(the) general purpose and intent’ of the
ordinance (Town Law, s 261) ...”
Van Deusen v. Jackson, 35 A.D.2d
58, 312 N.Y.S.2d 853, 856-57 (2d
Dept. 1970)(emphasis added)(citations
omitted). The Van Deusen court went
on to hold that
“When the variance violates the
general purpose of the ordinance,
the board of appeals invades the
province of the legislative body,
In March, our Board of Directors
will be hosting a joint meeting with
our neighbors to the west, the
Nassau County Bar’s Board of
Directors. We have also invited the
District Administrative judges of
FREEZE FRAME
Honoring Chief Judge
Judith Kaye
SCBA past president Scott M.
Karson, NYSBA Vice President for
the Tenth Judicial District, appeared
on the floor of the NYSBA House of
Delegates wearing red sneakers to
honor the memory of the late Chief
Judge Judith Kaye, who died on Jan.
7, 2016. Scott was one of several
delegates to honor the late Chief
Judge by wearing a pair if red sneak-
ers at the Jan. 29 meeting of the
House in New York City. Chief
Judge Kaye was known to favor red
shoes and, at her funeral, members
of her family wore red sneakers in
her memory.
and the grant is invalid for want of
authority (Matter of Reed v. Board
of Standards and Appeals of City of
N.Y., 255 N.Y. 126, 135-136, 174
N.E. 301, 303-304; Matter of
Thomas v. Board of Standards and
Appeals of City of N.Y., 290 N.Y.
109, 114, 48 N.E.2d 284, 285).
More precisely, the board of
appeals must make certain that the
effect of a variance would not intro-
duce such an incongruity into the
ordinance that the zoning pattern
would be seriously disarranged.”
Id., 35 A.D.2d 58, 61, 312 N.Y.S.2d
853 (emphasis added).
The court in Van Deusen further held
that, by permitting a density higher
than that permitted by the applicable
zoning ordinance (in fact, even higher
than a more lenient provision of the
zoning ordinance), the ZBA invaded
the province of the legislative body
(the Town Board), and annulled the
variance it had granted.
The holding in Van Deusen, and the
statutory construction contained therein,
continues to be utilized by the courts of
this State. (See, e.g., Santora v. Town of
Poughkeepsie Zoning Bd. of Appeals, 55
A.D.3d 741, 865 N.Y.S.2d 361(2d Dept.
2008); Deon v. Town of Brookhaven, 12
27
Nassau and Suffolk and the New
York State Bar Association President
Elect Claire Gundekunst. We look
forward to an exchange of valuable
information and ideas that benefit
the practice of law.
(Continued from page 8)
Misc.3d 1196, 824 N.Y.S.2d 768
(Sup.Ct., Suffolk Co., 2006).
The result in Van Deusen represents
the worst possible outcome for the
applicant and the practitioner. Not
only is the variance ultimately
annulled after costly litigation, but the
applicant must also now request relief
from a legislative body, which could
reasonably view the ZBA application
as an attempt to avoid their scrutiny.
As a result, a practitioner should
perform a careful analysis in such
instances, and seek to avoid placing the
client in this difficult position.
Note: Vincent J. Messina, Jr. is a
partner at Sinnreich, Kosakoff and
Messina, LLP. A significant portion of
his practice is devouted to land use and
related litigation in trial courts,
Appellate Divisions and Court of
Appeals. He is a former town attorney
of the Town of Islip, a position he held
for approximately 13 years and cur-
rently represents both developers and
zoning boards of appeals. He is the
SCBA co-chair of the Real Property
Committee and chair of the Legislative
Committee and has lectured on a vari-
ety of issues for the Suffolk Academy of
Law, New York State Bar Association
and private legal education providers.
28
SUFFOLK ACADEMY OF LAW
O F TH E S U FF O L K
The Suffolk Academy of Law, the educational arm of
the Suffolk County Bar Association, provides a com-
prehensive curriculum of continuing legal education
courses. Programs listed in this issue are some of
those that will be presented during the winter of
2016.
REAL TIME WEBCASTS: Many programs are avail-
able as both in-person seminars and as real-time
webcasts. To deter mine if a program will be webcast,
please check the calendar on the SCBA website
(www.scba.org)..
RECORDINGS: Most programs are recorded and
are available, after the fact, as on-line video replays
and as DVD or audio CD recordings.
AC CRED ITAT ION FO R MCLE : The Suffolk
Academy of Law has been certified by the New York
State Continuing Legal Education Board as an
accredited provider of continuing legal education in
the State of New York. Thus, Academy courses are
presumptively approved as meeting the OCA’s
SEMINARS & CONFERENCES
Matrimonial Mondays Series
MATRIMONIAL
MONDAYS SERIES
Mondays, March 7, 14, 21, 2016
6:00-9:00 pm
This year’s Matrimonial Mondays in
March series consists of three programs
featuring experienced practitioners,
experts and members of the Judiciary.
You may choose to attend for the full
series or only the one program. Each ses-
sion provides 3 MCLE credits.
Time: 6:00 p.m. – 9:00 p.m.
(Registration from 5:30 p.m.)
Location: Suffolk County Bar
Association, 560 Wheeler
Road, Hauppauge, NY
MCLE: 3 Hours each session
[Transitional or Non-Transitional]; $95
Evening Program
MATRIMONIAL MONDAYS
PENDENTE LITE MOTIONS:
DO’S AND DON’TS
March 7, 2016 6:00-9:00 pm
This session will cover Pendente Lite
motions and when you need a plenary
action. Attendees will learn what should
and should not be included in pendente
lite motions, how to obtain a temporary
restraining order, and when a plenary
action, as opposed to an Order to Show
Cause, is required.
Faculty: Hon. Andrew A. Creca, Hon.
John Iliou, Hon. John J. Leo, Hon.
THE SUFFOLK LAWYER – MARCH 2016
C O U N T Y
WINTER CLE
N.B. - As per NYS CLE Board regulation, you must attend a
CLE program or a specific section of a longer program in its
entirety to receive credit.
MCLE requirements.
NOTES:
Program Locations: Most, but not all, programs are
held at the SCBA Center; be sure to check listings
for locations and times.
Tuition & Registration: Tuition prices listed in the
registration form are for discounted pre-registration.
At-door registrations entail higher fees. You may pre-
register for classes by returning the registration
coupon with your payment.
Refunds: Refund requests must be received 48
hours in advance.
Non SCBA Member Attorneys: Tuition prices are dis-
counted for SCBA members. If you attend a course
at non-member rates and join the Suffolk County Bar
Carol MacKenzie, Hon. James F.
Quinn, Hon. David T. Reilly, John J.
Fellin, Esq., James R. Winkler,
Esq., Christopher J. Chimeri, Esq.
Time: 6:00 p.m. – 9:00 p.m.
(Registration from 5:30 p.m.)
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 3 Hours (2 Professional
Practice; 1 Skills) [Transitional or
Non Transitional]; $95
Evening Program
MATRIMONIAL MONDAYS
IDIOSYNCRASIES AND
UNEXPLORED ISSUES IN
MATRIMONIAL LAW
March 14, 2016 6:00-9:00 pm
This program will cover issues includ-
ing: dealing with the mentally unstable
client, untapped court resources, includ-
ing case analysts, court referees and edu-
cational advocates, and the appointment
of special referees for disclosure in com-
plex cases..
Faculty: Hon. James F. Quinn, Jeffrey
Horn, Esq., Gayle Rosenblum,
Esq., Howard Leff, Esq., Special
Referree Matthew Deedy, Case
Analyst Jeanmarie Massetti, LIAC
Educational Advocate Eileen
Buckley
Time: 6:00 p.m. – 9:00 p.m.
(Registration from 5:30 p.m.)
BA R A S S O C I AT I O N
Association within 30 days, you may apply the tuition
differential you paid to your SCBA membership
dues.
Americans with Disabilities Act: If you plan to attend
a program and need assistance related to a disabil-
ity provided for under the ADA, please let us know.
Disclaimer : Speakers and topics are subject to
change without notice. The Suffolk Academy of Law
is not liable for errors or omissions in this publicity
information.
Tax-Deductible Suppor t for CLE: Tuition does not
fully support the Academy’s educational program.
As a 501(c)(3) organization, the Academy can
accept your tax deductible donation. Please take a
moment, when registering, to add a contribution to
your tuition payment.
Fin ancial Aid: For information on needs-based
scholarships, payment plans, or volunteer service in
lieu of tuition, call the Academy at 631-233-5588.
INQUIRIES: 631-234-5588.
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 3 Hours (2 ½ Professional
Practice; ½ Ethics) [Transitional or
Non-Transitional]; $95
Matinee Program
ADVANCED 1031
EXCHANGE CONCEPTS
AND RELATED
TAX ISSUES
March 15, 2016, 4:00 -6:00 p.m.
Attendees at this program will learn how
to structure 1031 exchanges to maximize
the tax benefits to their clients. Faculty will
cover the different formats available and
the benefits of and requirements for each,
as well as reviewing noteworthy caselaw,
and recent developments. Practical solu-
tions to real life obstacles in performing an
exchange will be provided. Additional
highlights will include a review of current
tax rates applicable to investment sales,
like-kind property, vacation home
exchanges and more.
Faculty: Pamela Michaels, Esq.;
Program Coordinator: Vincent
Danzi, Esq.
Time: 4:00 p.m. – 6:00 p.m.
(Registration from 3:30 p.m.)
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 2 Hours Professional Practice
[Transitional or Non-Transitional]; $60
 THE SUFFOLK LAWYER – MARCH 2016 29

SUFFOLK ACADEMY OF LAW

O F T H E S UF F O L K C O U N T Y BA R A S S O C I AT I O N

BRIDGE THE GAP of an experienced mediator. The program Evening Program

will cover how to identify cases that are ANNUAL
WEEKEND good candidates for mediation, how to
March 18 and 19, 2016 select a mediator, what the mediation state- MATRIMONIAL UPDATE
This year’s Bridge the Gap weekend pro- ment should include, what to consider in March 29, 2016 6:00-9:00 pm
gram is currently being developed in accor- pre-mediation negotiations, and general
Come find out the latest developments
dance with the new rules for newly admitted do’s and don’ts during the mediation itself.
in Matrimonial and Family Law with our
attorneys which will go into effect on January Faculty: Joseph C. Tonetti, Esq., spon- Annual Case Update.
1. The Friday program will be given live and sored by the Jansen Group, Inc. Faculty: Vincent F. Stempel, Esq.
will also be webcast live, in accordance with
Time: 6:00 p.m. – 8:00 p.m. Time: 6:00 p.m. – 9:00 p.m.
the new rules. This year’s weekend program
(Registration from 5:30 p.m.) (Registration from 5:30 p.m.)
includes segments on the following topics:
Location: Suffolk County Bar Location: Suffolk County Bar
Practical Ethics, Handling a Civil Case,
Association, 560 Wheeler Road, Association, 560 Wheeler Road,
Handling a Criminal Case, Practicing in
Hauppauge, NY Hauppauge, NY
Family Court, Foreclosures, Grievances,
MCLE: 2 Hours Professional Practice MCLE: 3 Hours Professional Practice
Forming a Small Business, Wills, Trusts and
[Transitional or Non-Transitional]; $60 [Transitional or Non-Transitional]; $125
Estates, Residential Real Estate, Elder Law,
and New York Notary Law. The program will
offer newly admitted attorneys the full com-
plement of credits required for the full year.
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 17 Hours [Transitional or Non-
Transitional]

Evening Program
MATRIMONIAL MONDAYS
USE AND PRESENTATION OF
EVIDENCE IN
MATRIMONIAL CASES
March 21, 2016 6:00-9:00 pm
Learn the use of matrimonial evidence
from one of the top divorce lawyers in New
York State, who presents on this topic at
Judge School to both newly elected and
experienced judges. The case law update
provided will be invaluable to your practice.
Faculty: Steve Gassman, Esq.
Time: 6:00 p.m. – 9:00 p.m.
(Registration from 5:30 p.m.)
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 3 Hours (1 Professional
Practice; 2 Skills) [Transitional or
Non-Transitional]; $95

Evening Program
MEDIATION: HOW TO
SETTLE CASES WITH-
OUT GOING TO TRIAL
March 23, 2016 6:00 -8:00 p.m.
Formulated specifically for plaintiffs’ coun-
sel, this program will provide an overview of
the mediation process from the perspective
30 THE SUFFOLK LAWYER – MARCH 2016

ACADEMY OF LAW NEWS

MARCH ACADEMY HAPPENINGS
Bridge the Gap Training for New
Lawyers – An Economical Option
for a Full Year of Credits
The New York State CLE Board has
made some changes to the rules
regarding CLE credits for newly
admitted attorneys, and these changes
went into effect as of January 1, 2016.
While veteran attorneys (admitted
more than two years), do not need to
distinguish between Skills and Areas
of Professional Practice or Practice
requirement for Skills. Newly admit-
ted attorneys are required to take a
minimum of 16 credits per year: 7 in
Areas of Professional Practice or Law
Practice Management, 6 in Skills, and
3 in Ethics.
In the past, newly admitted attor-
neys (those to whom Bridge the Gap
is directed) were required to take all
of their credits at live programs.
Those restrictions have now been
relaxed somewhat, and certain credits
a result, we have changed the format
of our Bridge the Gap program to put
all of the credits that are eligible to be
taken as a webcast on one day, and all
of the programs that must be taken
live on the alternate day. This will not
only allow for us to offer part of our
Bridge the Gap program to individu-
als across New York State, but will
also permit local attorneys to appear
live for only one day of programming
if they wish.
Pendente Lite Motions: Do’s And
Don’ts, March 7, 2016. Learn when
you need a plenary action, what to
include in your motions, and how to
obtain a TRO. Faculty for this pro-
gram includes several members of the
matrimonial bench as well as experi-
enced matrimonial practitioners.
Idiosyncrasies and Unexplored
Issues in Matrimonial Law, March
14, 2016. Matrimonial actions are
complicated enough, why make them

r
Management credits, newly admitted are permitted to be taken either in Our Bridge the Gap 2016 program more difficult? Hear from judges, spe-

e n d a
attorneys have a specific credit recorded form or as live webcasts. As offers 17 CLE credits (one more than cial referees and practitioners and

Ca l
required per year) and was specifical- earn what court and outside resources
ly formulated to ensure that those who may be available to help you with
ACADEMY attended in 2015 can also attend in complex matrimonial matters.
2016. The Friday program will be Use And Presentation Of
given live and will also be webcast Evidence In Matrimonial Cases,
of Meetings & Seminars live, in accordance with the new rules. March 21, 2016. Attorney Steve
This year’s weekend program Gassman, Esq. is back again this
Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler includes segments on the following year to demonstrate the use and pres-
Road, Hauppauge) unless otherwise indicated. Dates, times, and topics may be topics: Practical Ethics, Handling a entation of evidence in matrimonial
changed because of conditions beyond our control. Most CLE programs involve tuition Civil Case, Handling a Criminal Case, matters. Since Mr. Gassman presents
fees; see the CLE Listings pages in this publication and the SCBA online calendar for Practicing in Family Court, on this topic to the judges at Judge
course descriptions and registration details. For information, call 631-234-5588.
Foreclosures, Grievances, Forming a School, you know you’ll be learning
Small Business, Wills, Trusts and from the best!
MARCH
Estates, Residential Real Estate, Elder March also brings our Annual
7 Monday Matrimonial Mondays: Pendente Lite Motions- Law, and New York Notary Law. Matrimonial Update with Vincent
Do’s and Don’ts, 6:00 p.m.-9:00 p.m., 3 credits, $95. Best of all, the Suffolk Academy of Stempel, Esq., another three credit
A light supper will be served Law’s Bridge the Gap program is evening program (this time on
offered for $195 total for both days of Tuesday, March 29), featuring an
14 Monday Matrimonial Mondays: Idiosyncrasies and programming, a significant discount update of new cases and legislation
Unexplored Issues in Matrimonial Law, 6:00 p.m.- over other Bridge the Gap programs, from the past year.
9:00 p.m., 3 credits, $95. A light supper will be so register now!
served More March Programs
Matrimonial Mondays (and one On March 15, a two credit program
15 Tuesday Advanced 1031 Exchange Concepts and Related
Tuesday) in March on 1031 Exchanges will be presented
Tax Issues, 4:00 p.m.-6:00 p.m., 2 credits, $60. A
The Academy’s Matrimonial at the Bar Center. And on March 23,
light supper will be served
Mondays Series is back again this Joseph Tonetti, Esq. will be present-
18 Friday Bridge the Gap, Day 1, This full day program will year with three intensive programs ing a program on how plaintiff’s attor-
be offered both live and webcast and will cover geared specifically toward neys can use Mediation and
Professional Practice and Ethics Credits. Day 1 or 2 Matrimonial and Family practitioners Arbitration for Effective Case
live - $125; Full weekend live - $195. Continental and featuring experienced practition- Management.
breakfast and a light lunch will be served. ers, experts and members of the judi- Details about all of these programs
ciary. You may choose to attend for can be found in the centerspread.
19 Saturday Bridge the Gap, Day 2, This full day program will the full series or only the one pro-
be offered live, and will cover Skills and Ethics cred- gram. Each session provides 3 MCLE Online, On-demand and
its. Day 1 or 2 live - $125; Full weekend live - credits and each session runs from 6 Recorded CLE Programs
$195.Continental breakfast and a light lunch will be to 9 p.m. at the SCBA. But in addition to our live pro-
served. Our three Matrimonial Mondays grams, the Academy also offers live
programs this year are: (Continued on page 31)
21 Monday Matrimonial Mondays: Use and Presentation of
Evidence in Matrimonial Trials, 6:00 p.m.-9:00
p.m., 3 credits, $95. A light supper will be served
23 Wednesday Mediations: Effective Case Management for ACADEMY OF LAW OFFICERS
Plaintiffs, 6:00 p.m.-8:00 p.m., 2 credits, $60. A light
DEAN EXECUTIVE DIRECTOR
supper will be served Harry Tilis Allison C. Shields
29 Tuesday Annual Matrimonial Update, 6:00 p.m.-9:00 p.m., Officers Gerard J. McCreight Arthur E. Shulman
3 credits, $125. A light supper will be served Sima Asad Ali Peter D. Tamsen Leonard Badia
Brette A. Haefeli Associate Dean Charles Wallshein Vincent Danzi
Robert M. Harper Michael G. Glass Paul Devlin
Please note: Materials for all Academy programs are provided online and Jennifer A. Mendelsohn Treasurer Patrick McCormick Associate Dean Jeffrey Horn
are available for download in PDF format prior to or at the time of the pro- Marianne S. Rantala Hon. James F. Quinn Cory Morris Secretary
gram. Printed materials are available for an additional charge. Hon. John J. Leo Debra L. Rubin Curriculum Chair Janna Visconti
LEGAL SERVICE DIRECTORY
THE SUFFOLK LAWYER – MARCH 2016 31

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is available at a prime location on the
Melville 110 corridor. Receptionist, conference
rooms included. Possible second smaller
windowed office also available should two
offices be required. We are looking for an
experienced litigation attorney that will
complement our practice areas of Commercial
Real Estate, Zoning and Land Use, and
Business Litigation.
Please call
631-747-7165.
awaits a new tenant for a very desirable
street level office space. The space is 1500SF
and is zoned D2, perfect for a professional
office or medical office. Walking distance to
the LIRR and plenty of parking in rear of the
building. Best of all walk to all of the amazing
restaurants and shops that the New Village
of Patchogue has to offer. Here is an oppor-
tunity for the right business that can’t be
missed. Contact:
Frederick.wallenmaier@corcoran.com

TO ADVERTISE, CALL 631-427-7000

Boundaries of Protection (Continued from page 3)

webcasts of many of our programs, as
well as a full array of online, on-
demand CLE programs and CLE pro-
gramming available on DVD or CD.
These additional formats allow attor-
neys to take advantage of the learning
opportunities and CLE credits avail-
able from the comfort of their home or
office (or even on the road!).
To view the online, on demand pro-
grams available, go to scba.org, click
on MCLE and then Online video
replays and live webcasts to search for
the programs. If you prefer to purchase
a CD or DVD of one of our programs,
you can go to scba.org, click on
MCLE and then DVDs and CDs of
prior programs to access our recorded
program library.
Want to learn about upcoming
programs?
If you’re missing Academy pro-
grams, perhaps it’s because you’re not
receiving our email blasts! The
Academy has “gone green,” and is no
longer sending out paper flyers for our
programs. Instead, you can find infor-
mation on upcoming Academy pro-
grams by reading the Suffolk Lawyer,
by looking at our Academy calendar at
scba.org, or by receiving our email
blasts. Blasts are usually sent twice a
week and include links to view the elec-
tronic flyers and to register for our pro-
grams. If you’re not receiving our email
blasts, please email allison@scba.org
and let us know you want to be added to
our Academy email list.
Academy and SCBA Website
The Suffolk County Bar Association
website, scba.org, provides valuable ed information, sign up for the SCBA the minute announcements affecting
and resources and information to both member’s alert system and receive the profession. (This is especially
members and non-members alike, but text messages about closings, post- important during the winter months,
unfortunately, many of our members ponements and other important up to when weather can be unpredictable).
do not take advantage of the wealth of
information available on the website. FREEZE FRAME
In addition to the availability of online,
on-demand and DVD programming,
you may register online for any of our
live Academy programs through the
scba.org site by clicking on MCLE
and then Register for a Live CLE pro-
gram.
Want to know what’s happening at
the SCBA or the Academy? Head on
over to the website at scba.org and click
on Calendar. Here you can view all of
the information about upcoming events,
including committee meetings, month-
ly Academy meetings, social events and
Academy CLE programs. Links from
each event to registration and detailed
flyers are available (if applicable). It’s a
good idea to double-check the calendar
before coming to the SCBA for a com-
mittee meeting or program.
The SCBA website also contains
information about other events in the
legal community in addition to the
events at the SCBA. Go to scba.org
and click on Calendar of other Legal
Community Events to find out what
other legal associations and our
Specialty Bars have planned – and
contact Jane LaCova (jane@scba.org)
if you want your event listed on our
Legal Community Events calendar. Nothing like being a grandmother
Finally, the SCBA website sidebar
contains the latest news about the Bar SCBA staffer Nicolette Ghiglieri is enjoying her two beautiful grandchil-
Association and the Academy – this dren that were born only one month apart. Joanna Rose Ghiglieri was born
news can be found right on the Home on Valentine’s Day and Alexa Nicole Prieto was born January 18.
Page. But if you want the most updat-
 p r ing
SDINEHUNTINGTON
32 THE SUFFOLK LAWYER – MARCH 2016

MARCH 13-20, 2016

R E S TA U R A N T W E E K
PARTICIPATING RESTAUR ANTS:
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$
27 95
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PRESENTED BY:
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Incorporated in 1925, the Huntington Township Chamber of Commerce represents
the interests of business, not- for–profit and other professionals looking for growth
and community involvement. Its mission is the promotion of business and economic
development through the coordinated effort of staff and membership. The Chamber
is dedicated to serving the needs of its members through government advocacy, net-
working, community support and education.

CHAMBER MEMBERSHIP IS OPEN TO

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