LI Life Calendar · 2 THE SUFFOLK LAWYER — APRIL 2011 To Advertise in The Suffolk Lawyer Call (866) 867-9121 SCBA OF ASSOCIATION MEETINGS AND EVENTS All meetings are held at the

PRESIDENT’S MESSAGE

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 27 No 7April 2011website: www.scba.org

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

Membership AppreciationRescheduledTuesday, April 5, 6 p.m.Bar Center.Author and motivational speaker Jon Gordon

Healthy Life Series – Massage asa Way to Improve Your LifeThursday, April 7, 4 to 6 p.m.Bar Center

SCBA Supreme Court Retiring Supreme Court JusticeRobert W. Doyle HonoredTuesday, April 12, 6 p.m.Watermill Restaurant, SmithtownContact Marion for further information

Annual MeetingMonday, May 2, 6 p.m.Bar Center

BAR EVENTS

Importance of Diversity in the Bar....... 9LGBT Bar Still Matters......................... 8Brehon Society ...................................... 10Better Playing Field for Women............ 5SCBA Committed to Diversity .............. 8Reaching Out to Community .............. 10Supporting Italian Heritage .................. 9Saying Checkmate .................................. 5___________________________________Meet your SCBA Colleague .................. 3Zadroga 9/11 Act .................................... 3Tort Reform............................................. 5Annual Meeting ...................................... 4Music Review – Mellencamp................19SCBA photo album............................... 14___________________________________Legal ArticlesBench Briefs ............................................. 4Consumer Bankruptcy ............................ 17Court Notes............................................. 12Pro Bono ....................................... 11 & 17Trusts and Estates (Cooper) .................. 12Trusts and Estates (Harper) .................... 18___________________________________Academy News....................................... 28Among Us................................................. 7Calendar: Academy ................................ 28Calendar: SCBA ....................................... 2 CLE offerings ......................................... 22 Committee Corner .................................. 19Crossword............................................... 16

INSIDE…APRIL 2011FOCUS ONDIVERSITY

These Times TheyAre a Changin’____________________By Sheryl L. Randazzo

It’s a good thing that the weather is finally starting toget nicer. Winter has been getting to us all and the coldand gloomy environment makes otherwise challengingevents and changing circumstances even more unset-tling. And this spring, challenges and changes do abound...

Personal injury attorneys, both plaintiff’s and defense, as well as the pub-lic at large, are on the cusp of being dramatically impacted by the most recentincantation of tort reform. Through a recent Task Force initiated byGovernor Cuomo, otherwise titled the Medicaid Redesign Team, a proposalis before the New York State Legislature to create a Neurologically ImpairedInfant Medical Indemnity Fund and to institute a cap on non-economic dam-ages for medical malpractice awards. Former SCBA President Craig Purcell,on behalf of the SCBA and in his role as a Co-Chair of the NYSBA’sCommittee on the Tort System, is leading the charge to oppose the proposal.(See article on page 5, “Governor’s Proposed Cap to Medical MalpracticeAwards Opposed,” as well as Mr. Purcell’s front page article from lastmonth’s Suffolk Lawyer, “NYSBA Committee on the Tort System Meets,Plans Opposition to Tort Reform Proposal.”) Clearly, the public’s rights areunder attack and as members of the legal profession we need to respondimmediately.

Fiscal constraints on the judiciary have also hit especially close to home.Based upon recent budget cuts, all pro bono grant funding through New YorkState has been eliminated. Bringing that into SCBA terms, the position of ourhighly respected and extremely capable Pro Bono Coordinator Linda Novickwill lack funds completely effective March 31. This is a tremendous blow topro bono efforts countywide, and it will drastically impact recruitment of new

(Continued on page 20)

Sheryl L. Randazzo

____________________By Eric L. Morgenthal

As you read this article, someone, some-where in the world, is gathering strength.Hoping and working toward somedaycoming to America to seek out a better life.As the expression goes, these people havetaken their first steps down the road oftheir future “armed with nothing but their

own vision.” They pray that with years ofhard work and perseverance, they too canobtain success and prosperity. Oftentimes,their motivation is to transfer money backhome to their families in the old country.But today this Ellis Island narrative playsout far differently than it did in generationspast. Now, with the Patriot Act and theFinancial Crimes Enforcement Network

(FinCEN), the U.S. governmentwants to know about these trans-fers.

I would like to describe theFederal Foreign Bank AccountReporting (“FBAR”) VoluntaryDisclosure program as a path-way back for tax evading crimi-nals and financiers who intendedto circumvent the U.S. tax sys-tem. And it is for many clients.But based upon significant experience inthis area of International Tax practice, ithasn’t always been the case. Often, I haveheard from Holocaust survivors, refugeesand immigrants from impoverished partsof the globe who are first learning aboutthe compliance and financial reportingburdens that come when combining U.S.residency with money. (Note: the standardfor compliance is U.S. residency, not U.S.citizenship.)

Due to their success in receiving 15,000applications under the 2009 enforcementinitiative (“OVDP”), the FederalGovernment has recently unveiled RoundII: The 2011 Offshore VoluntaryDisclosure Initiative (“OVDI”). And ifanything, it proves Will Rogers waswrong. Sometimes you do get a second

chance to make a first impres-sion. Under the program, U.S.“persons”1 making a “voluntarydisclosure” can again avoidcriminal liability by declaringtheir offshore bank accounts andreporting certain foreign trans-actions. And of course, it would-n’t feel like an FBAR disclosureprogram without a whole newlist of IRS FAQ’s to follow. But

like before, not all nuances about theapplication of tax law set forth in theCode and Regulations are addressed inthe IRS list of FAQ’s about the OVDI.

The origins of the FBAR filing require-ments are rooted in the Bank Secrecy Actof 40 years ago but were not heavilyenforced. In 2003, the IRS was providedauthority by FinCEN to police these pro-visions. In 2004, Congress assisted theIRS by raising the ante for those whofailed to comply with the FBAR compli-ance provisions. And failure carried somesevere penalties, raising the potential lia-bility to the greater of $100,000 or 50 per-cent of the account balance per offense, aswell as potential criminal exposure. Infact, even tax return preparers can now

Tax Law:The 2011 Offshore Voluntary Disclosure Initiative

Eric L. Morgenthal


FOCUS ON

DIVERSITYSPECIAL EDITION

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A. Craig Purcell, Wende Doniger, and James Fagan explain the basics of civil practiceat the Academy’s recent CLE weekend for new lawyers. More photos on page 16.

Bridging The Gap

THE SUFFOLK LAWYER — APRIL 20112

To Advertise in The Suffolk Lawyer

Call

(866) 867-9121

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

All meetings are held at the Suffolk County BarAssociation Bar Center, unless otherwise specified.

Please be aware that dates, times and locations may be changed because of conditions beyond our control.

Please check the SCBA website (scba.org) for anychanges/additions or deletions which may occur.

For any questions call: 631-234-5511.

April 20114 Monday Annual Business Expo, Hyatt Regency Hotel, Hauppauge.

Working Parents Committee, 1:00 pm to 2:15 pm, Board Room.Insurance & Negligence - Defense Counsel, E.B.T. Room.

5 Tuesday Membership Appreciation Event - Guest Author, Speaker: Jon Gordon, 6:00 p.m., Bar Center. Call Bar Center for reservation.

6 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room.7 Thursday Healthy Life Series -Massage as a Way to Improve Your Life,

4:00 pm. - 6:00 pm., $15:00. Call Bar Center for reservations.9 Saturday “Music with Tots: a Morning of Fun and Music Appreciation”,

presented by the Working Parents Committee, featuring Mike Soloway,Music Instructor, of North Shore Musikgarten, 10:00 a.m., Bar Center.Bagel Breakfast Begins at 9:30 am. Reservations are mandatory. Call Marion at Bar Center.

11 Monday Executive Committee, 12:30 p.m., Board Room.12 Tuesday Education Law Committee, 12:30 p.m., Board Room.

Surrogate’s Court Committee, 5:30 p.m., Board Room.Annual Supreme Court Committee Dinner, Guest of Honor is SupremeCourt Justice Robert W. Doyle, Watermill Restaurant, Smithtown. Call Bar Center for reservations.

13 Wednesday Labor & Employment Law Committee, 8:00 a.m., Board Room.Solo & Small Firm Practitioners Committee, 6:00 p.m., Board Room.

14 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.Joint New Members/Member Benefits Committee, 6:00 p.m.,Board Room.

19 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room20 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Health & Hospital Law Committee, 5:30 p.m., Board Room.21 Thursday Professional Ethics & Civility Committee, 5:30 p.m., Board Room.25 Monday Board of Directors, 5:30 p.m., Board Room.28 Thursday Intellectual Property Law, 6:00 p.m., Board Room.29 Friday Annual DLWP Dinner, 6:00 pm-11:00 pm, Crest Hollow Country

Club, Woodbury. Call Dennis Chase for reservations, 631-348-7500.MAY 20112 Monday SCBA’s Annual Meeting, 6:00 p.m., Great Hall, Bar Center.

Election of Officers, Directors and members of the Nominating Committee. Awards of Recognition, Golden Anniversary Awards and Annual SCBA High School Scholarship Award.Call Bar Center for reservations.

5 Thursday Defensive Driving Course, 6:00 p.m., Great Hall.Further details forthcoming.Municipal Law Committee, 6:00 pm, Board Room.

9 Monday Executive Committee meeting, 12:30 pm, Board Room.Insurance, Negligence - Defense Counsel Committee, 5:30 p.m.,E.B.T. Room.

12 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.14 Saturday Animal Law Committee, “Doggy Day”. Further details forthcoming.

Our Mission“The purposes and objects for which the Association is established shall be cul-tivating the science of jurisprudence, promoting reforms in the law, facilitatingthe administration of justice, elevating the standard of integrity, honor andcourtesy in the legal profession and cherishing the spirit of the members.”

The Suffolk LawyerUSPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 MainStreet, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as peri-odical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the Actof Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 Wheeler Road,Hauppauge, NY 11788-4357.

Sheryl L. Randazzo............................................................................................PresidentMatthew E. Pachman................................................................................President ElectArthur E. Shulman ............................................................................First Vice PresidentDennis R. Chase ...........................................................................Second Vice PresidentWilliam T. Ferris................................................................................................TreasurerDonna England ..................................................................................................SecretaryHon. W. Gerard Asher .............................................................................Director (2011)Annamarie Donovan................................................................................Director (2011)Joseph A. Hanshe.....................................................................................Director (2011)George R. Tilschner.................................................................................Director (2011)Derrick J. Robinson .................................................................................Director (2011)Cheryl F. Mintz........................................................................................Director (2012)Lynn Poster-Zimmerman .........................................................................Director (2012)Richard L. Stern.......................................................................................Director (2012)Kerie Pamela Stone..................................................................................Director (2012)Michael J. Miller .....................................................................................Director (2013)Hon. William B. Rebolini........................................................................Director (2013)Wayne J. Schaefer....................................................................................Director (2013)Thomas J. Stock.......................................................................................Director (2013)James R. Winkler .............................................................Past President Director (2012)Ilene S. Cooper ................................................................Past President Director (2013)Sarah Jane LaCova .............................................................................Executive Director

Suffolk County Bar Association

560 Wheeler Road • Hauppauge NY 11788-4357Phone (631) 234-5511 • Fax # (631) 234-5899

E-MAIL: [email protected]

Board of Directors 2010-2011

SUFFOLK LAWYERLAURA LANE

Editor-in-Chief

DOROTHY PAINE CEPARANO

Academy News

Leo K. Barnes, Jr.

Eugene D. Berman

John L. Buonora

Dennis R. Chase

Elaine Colavito

Ilene S. Cooper

Justin Giordano

Robert M. Harper

David A. Mansfield

Craig D. Robins

Frequent Contributors

The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk CountyBar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertisingcontained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content doesnot reflect the opinion or views of The Suffolk County Bar Association.

TH

E

PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months of

July and August, by The Long Islander Newspapers under the auspices

of The Suffolk County Bar Association.© The Suffolk County Bar

Association, 2011. Material in this publication may not be stored or

reproduced in any form without the express written permission of The

Suffolk County Bar Association. Advertising offices are located at The

Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631-

427-7000.

Send letters and editorial copy to:

The Suffolk Lawyer 560 Wheeler Road, Hauppauge, NY 11788-4357

Fax: 631-234-5899 Website: www.scba.org

E.Mail: [email protected] or for Academy news: [email protected]

Calendar

Important Information from the Lawyers Committee on Alcohol & Drug Abuse:

Thomas Moore GroupTwelve-Step Meeting

Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE: 631-697-2499

Ballpark FunJoin the Suffolk County Bar Association for an

exciting night of baseball on Thursday, June 23,as the Long Island Ducks take on the CamdenRiversharks at Bethpage Ballpark. Tickets, whichare $30 apiece, include admission to the game anda pre-game barbeque. To reserve your tickets,contact Jane LaCova at (631) 243-5511. Tickets areexpected to sell out quickly. Reserve your ticketstoday for this popular event.

____________________________________By Troy G. Rosasco and Daniel J. Hansen

President Obama signed the JamesZadroga 9/11 Health and CompensationAct (“Zadroga Act”) on Jan. 2, 2011. Itprovided a total of $4.3 billion in healthbenefits and financial compensation forvictims, responders, and others harmed bythe attacks of September 11th and its after-math.

The Zadroga Act accomplishes twogoals important for individuals who suf-fered injuries or illnesses related to eitherthe actual attacks or the subsequentcleanup. First, Title I of the Zadroga 9/11Act establishes a comprehensive healthplan to monitor and treat injuries sufferedby first responders and survivors—includ-ing firefighters, police officers, EMT’s,rescue workers, construction workers,cleanup workers, local residents, local areaworkers, and school children—as theresult of exposure to toxic dust and debrisaround Ground Zero and other specifiedareas. Second, Title II of the Zadroga9/11 Act reopens and expands a number ofelements of the September 11th VictimCompensation Fund of 2001.

There are a number of health programsfunded under the Zadroga Act. The newlaw establishes a new WTC respondersmedical monitoring and treatment pro-gram to provide medical evaluation, moni-toring, and treatment benefits (includingprescription drug benefits) to emergencyresponders and clean-up workers whowere impacted by the WTC attack onSeptember 11th. The benefits are deliv-ered through medical “Centers ofExcellence.”

The Zadroga Act also establishes amedical monitoring and treatment pro-gram to pay for medical monitoring forWTC responders who performed rescue,recovery, demolition, debris clean-up, and

related services. If the responder meetsthe eligibility criteria and is accepted intothe program, the responder is entitled toreceive treatment if two conditions aremet: (1) the condition is among those iden-tified WTC-related listed conditionsincluding a number of “aerodigestive” dis-orders, listed mental health conditions, andmusculoskeletal disorders occurring dur-ing the rescue or recovery efforts, and (2)a physician at a Clinical Center ofExcellence determines that a conditionwas caused or contributed to by exposureto airborne toxins, other hazards, oradverse conditions resulting from theSeptember 11th attacks.

The Zadroga Act also establishes a “sur-vivor program” for non-responders wholived, worked, went to school or were oth-erwise in a defined area of lowerManhattan (and parts of Brooklyn) for acertain time period after the September11th attacks. The criteria and medical eli-gibility determinations for survivors arethe same as those that apply to the respon-ders program. The survivor program is the“secondary payor” to any applicable pub-lic or private health insurance for the con-ditions that are not work-related.

The Zadroga Act also reopens and sig-nificantly expands a number of aspects ofthe September 11th Victims CompensationFund of 2001. The Zadroga Act amendsthe original September 11th CompensationFund by extending the time in which aclaim may be filed for a period of fiveyears from the date that Special Master(who has not yet been appointed) updatesthe regulations under the Zadroga 9/11Act. The Victims’ Compensation Fundwas originally closed on December 22,2003.

The Zadroga Act also expands the 9/11Victim Compensation Fund (VCF) in sev-eral important respects. The original VCF

provided a right to file a claim only tothose individuals injured while “present atthe site” of the disasters or in the “imme-diate aftermath” of the September 11th

attacks. “Present at the site” was original-ly defined by the VCF as physically pre-sent at the time of the crashes in the build-ings, portions of the buildings that weredestroyed as a result of the airplane crash-es or any contiguous area that was suffi-ciently close to the crash site that there wasa demonstrable risk of physical harm fromthe impact of aircraft or any subsequentfire, explosions, or collapse of buildings.As a result, rescue and clean-up workersinjured at the buildings or areas not adja-cent to the site were not originally eligibleto file a claim as they were not “present atthe site.”

The original VCF regulations definedthe “immediate aftermath” of the crashesfor claimants, other than rescue workers,as from the time of the crashes for a peri-od of 12 hours after the crashes. For res-cue workers, the period of time defined asthe “immediate aftermath” was extendedto include the period from the crashes until96 hours after the crashes. Again, rescueand recovery workers who arrived morethan 96 hours after the crash and wereinjured were excluded from filing a claimunder the original VCF.

The Zadroga Act expands the definitionof “immediate aftermath” to well beyondthe 12 and 96 hour post-crash periodsdefined in the original law. “Immediateaftermath” is redefined by the Zadroga Actto mean “any period beginning with theterrorist-related aircraft crashes ofSeptember 11, 2001, and ending on May30, 2002.” The expansion of what wasconsidered the “immediate aftermath” ofthe terrorist attacks significantly broadensthe pool of claimants in the VCF to includethe rescue, construction, an other clean-up

workers who suffered injures during theongoing rescue and clean-up efforts thatpersisted for many months after theSeptember 11th attacks.

The Zadroga Act also expands definitionof the “crash site.” The term “9/11 crashsite” is defined by the Zadroga Act tomean: ‘‘(A) the World Trade Center site,Pentagon site, and Shanksville,Pennsylvania site; (B) the buildings or por-tions of buildings that were destroyed as aresult of the terrorist-related aircraft crash-es of September 11, 2001; (C) any “areacontiguous to a site of such crashes that theSpecial Master determines was sufficientlyclose to the site that there was a demon-strable risk of physical harm “ resultingfrom the impact of the aircraft or any sub-sequent fire, explosions, or building col-lapses (including the immediate area inwhich the impact occurred, fire occurred,portions of buildings fell, or debris fellupon and injured individuals); and (D) anyarea related to, or along, “routes of debrisremoval,” such as barges and the FreshKills landfill on Staten Island.

One major issue that is unclear at thetime of this writing is whether the resi-dents, workers, and others in lowerManhattan who were sickened by the toxicfallout from the 9/11 attacks are eligibleclaimants under the VCF. The broadenedlanguage of the Zadroga Act amendments

THE SUFFOLK LAWYER — APRIL 2011 3

Meet Your SCBA Colleague_____________By Laura Lane

What happened in your life thatstopped you from immediately going tolaw school as you’d always wanted todo? It is true that I’d always wanted tobecome an attorney and I was interested inpolitics too when I was younger. But myfather died when I was in college, so therewas no money for me to go to law school.

Your path to becoming an attorneymay have never come to fruition hadyou not worked in the Nassau CountySupreme Court. I was hired as a confi-dential attendant for the late SupremeCourt Justice Douglas Young. I wasinspired by these judges. Some were schol-ars of the highest order. My judge, JusticeYoung, was a big help to me professional-ly. I learned how to use the law library,could put a set of motion papers togetherby memory and got to know the attorneys.I worked in the court by day and went tolaw school by night.

Did this help you to get your first jobas an attorney? It definitely gave me anedge. I had practical knowledge that youdon’t get in law school. I was at theSupreme Court for six years.

What do you do at Stony BrookUniversity Hospital and how did youend up there? I negotiate managed care

contracts for the hospital. Prior to this jobI was with the Attorney General’s officewhere I was counsel to the hospital.

How did the opportunity with theAttorney General’s office come about? Iwas a solo practitioner and found it diffi-cult to earn a stable income. I was marriedat the time and had children. I accepted thejob as an Assistant Attorney General in theNew York State Attorney General’s CivilRecoveries Bureau unit for Stony BrookUniversity Hospital. I served as legal coun-sel to the hospital in the preparation andnegotiation of managed care agreements,as well as in the resolution of significantrevenue issues between the hospital andmajor managed care payers.

Then you were offered an opportunityto go to the hospital directly, correct?Yes, in late 2004 I joined the staff of thehospital’s Managed Care Department. Itwas a good segue for me because in theAG’s Office I was peripherally involved inmanaged care contract negotiations. Whenthis opportunity came to do it full time Iaccepted it.

What do you enjoy about your cur-rent position at Stony Brook? What Ilike about it is that the work is highly spe-cialized and technically complex. The joballows an attorney to use his negotiationskills to the fullest. The downside is that I

never get into court and I don’t litigatewhich I used to enjoy.

Healthcare is a hot topic these days. Iknow you lecture often at the SCBA aswell as other places. What types of issuesdo you find important to share? I addressa number of issues but usually focus onprovider payer relationships. I think thiswill continue to be important in the future.Healthcare is a dynamic field for attorneystoday because of healthcare reform whichresults in many legal and contractualchanges that will appear in short order.This will affect my job as well as time goesby. Even general practitioners will need toknow about healthcare reform.

When did you join the SCBA andwhy? I became an attorney in 1982 andjoined the bar in 1990 because prior to thatI didn’t have the flexibility to participate. Ihave had the luxury of being involved inthe SCBA and attend the functions andactivities. I’ve been a SCBA Health andHospital Law Committee Co-Chair forseveral years too and regularly attend sem-inars and programs.

Why would you recommend member-ship in the SCBA? The Suffolk CountyBar Association has been able to hold ontoa genuine cordiality among its membersand that’s very attractive. And the bar’smeetings and programs keep up with what

is of interest to lawyers today.

How do you believe membership ben-efits new members as well as old? Thenew member resources and networkingopportunities speak for themselves. Oldermembers are afforded opportunities tomeet other members and advance theirprofessional knowledge and education.The law is a profession, not just a business.At the end of the day, the SCBA helps usrecognize it as a profession first and a busi-ness second.

James Fouassier

James Fouassier, a healthcare law attorney, might never have joined the profession had an unlikely turn of events not shaped his future.

James Zadroga 9/11 Health & Compensation Act of 2010

Troy G. Rosasco Daniel J. Hansen



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Not Among Our Law School GoalsUNMANAGEABLE STRESS ● CLINICAL DEPRESSION ●

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Lawyers rank first in incidence rate for clinical depression among105 professions surveyed. Do you need help or do you just want totalk about it?

The Lawyer Assistance Foundation and Lawyers Helping LawyersCommittee of the Suffolk County Bar Association can help. We canprovide necessary assistance, whether a sympathetic ear or a referralfor professional assistance when necessary.

There is no charge. No stigma. Everything will be kept strictly confi-dential.

Interested?

Call: Rosemarie Bruno (631)979-3480, Arthur Olmstead (631) 754-3200 from theLawyers Helping Lawyers Committee;

Barry L. Warren, Managing Director of The Lawyer Assistance Foundation (631) 265-0010;

Jane LaCova, Executive Director, Suffolk County Bar Association – (631) 234-5511, Ext. 231.

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_______________By Jane LaCova

The Annual Meeting is the last impor-tant event in our administrative year. Thisis the occasion that provides an opportuni-ty to conduct necessary business and topay recognition to our members who havemade significant contributions to theAssociation. As our Bylaws dictate, theAnnual Meeting shall be held on the firstMonday in May. It is also a time tobecome reacquainted with your col-leagues free from litigation or legal deal-ings.

This year’s Annual Meeting will be heldat our Bar Center on Monday, May 2, at 6p.m. Included in the business to be trans-acted is our annual election. This year’s

slate includes: Arthur E. Shulman,President Elect; Dennis R. Chase, FirstVice President; William T. Ferris III,Second Vice President; Donna England,Treasurer; John R. Calcagni, Secretary.Directors who will serve a three year termexpiring in 2014 include: Hon. AndrewA. Crecca, Diane K. Farrell, Hon. JohnKelly (who will also become Dean of theSuffolk Academy of Law) and William J.McDonald. Members to be elected to theNominating Committee for a three yearterm are: Hon. Peter H. Mayer, SherylL. Randazzo and Ted M. Rosenberg.

The incoming President, Matthew E.Pachman, by virtue of his election asPresident Elect last year, does not stand

SCBA Annual MeetingElections and Recognition

___________________

By Elaine M. Colavito

SUFFOLK COUNTY SUPREME COURT

Honorable Paul J. Baisley, Jr.

Motion for an order pursuant to CPLR§ 2004, granting defendant leave to servea late answer denied; defendant’s attemptto vacate her default nearly one yearlater, deemed untimely.

In Abdul Q. Malik and Hodia Malik v.Builders Warehouse Corp. d/b/a ThinkKitchen and Roman Hennessy andAlexandra Hennessy, Index No.: 384/08,decided on June 30, 2010, the courtdenied the motion by defendantAlexandra Hennessy for an order pur-

suant to CPLR § 2004 granting suchdefendant leave to serve a late answer. Inrendering its decision, the court notedthat in its prior order dated May 20,2009, defendant had opposed plaintiffs’motion for a default judgment againsther, without, cross-moving to vacate herdefault or for an extension of time toanswer plaintiffs’ complaint pursuant toCPLR § 2004. The court further rea-soned that although plaintiffs’ motion fordefault judgment was denied againstHennessy, she took no further steps toattempt to vacate her default until nearlyone year later, which the court deemed asuntimely.

Motion for a default judgment pursuantto CPLR §3215(b) denied; leave of court

BENCH BRIEFS



_______________By Kim M. Smith

The inequality of women has been amajor concern throughout history. Whilewomen as a whole have made leaps andbounds educationally and professionally,there is still a significant lag in theirequality both economically and political-ly.

For the first time in history, recent stud-ies show that women have become themajority of the workforce at Fortune 500

companies and own the majority ofsmall start- up businesses. However,women only account for 18 percentof the corporate officer positionsand next to none of the chief execu-tive positions at these companies.Women’s pay is still far below thepay of men in the same positionsand we are under-represented in theareas of technology, math, science,and engineering.

With regard to the field of law, over the

last 25 years women havecome to represent approxi-mately 50 percent of all lawschool graduates and consti-tute a significant percentageof lawyers in law firms, cor-porate legal departments, andgovernment entities. Yet mostwomen lawyers still repre-sent a very small percentageof the law firm leaders, gen-

eral counsel, judiciary, law school deansand government officials.

Despite the significant number ofwomen in the professional workforce,and the advancements that they haveattained, the disparities of their positionsin the judiciary as well as the politicalarena remain disconcerting. In SuffolkCounty, of the 18 member SuffolkCounty Legislature, only three arewomen; of the 31 village mayors, onlyfour are women; of the 28 Supreme CourtJustices, only seven are women; of the 11County Court Judges, only one is awomen; of the 24 District Court Judges,only 6 are women; and of the 55 town andvillage justices only 16 are women. Todate, all members of the New York StateAssembly from Suffolk County are menand there has never been a woman fromSuffolk County in the State Senate or inCongress.

Many ask, with all of the advancementsof women within the law and with adynamic and resourceful Suffolk CountyBar Association, do we still need aWomen’s Bar Association. The answer tothis question is yes, there is still much tobe done to overcome gender bias and pro-mote women in the field of law. While

some of the challenges that initiated thecreation of both the New York StateWomen’s Bar Association and the SuffolkCounty Chapter have dissipated, many ofthem still remain and new challenges arebeing faced each day. It is as important asever, if not even more so, for women touse their power and their strength to con-tinue to strive to improve the status ofwomen, to educate women lawyers, tosupport their professional developmentand to promote the advancement ofwomen in the legal profession and societyas a whole.

The SCBA on has been a great resourceand support system for women in the law,as has the New York State BarAssociation’s Committee on Women inthe Law. Together, both associations havepromoted and supported women as lead-ers through their countless programs andnumerous resources. It is my goal as cur-rent Vice President of programs and nom-inated President of the Suffolk CountyChapter of the New York State Women’sBar Association to continue to worktogether with the SCBA to present jointprograms and enable more opportunitiesfor the advancement and benefit ofwomen in the law and beyond. I believethat with continued and increased mutual

_______________By Andrea Amoa

The concept of “Diversity“ isintended to describe a broadspectrum of multiple communi-ties and, with respect to thepractice of law, should serve toalleviate the apparent imbal-ance of representation withinthe legal system. Yet, the num-ber of minority attorneys prac-ticing in Suffolk County is truly dispro-portionate in comparison to the numberof minority clients in need of representa-tion.

I attended Thurgood MarshallSchool of Law in Houston, Texas,a historically black law schoolthat is ironically now known forits commitment to diversity.Thurgood Marshall School ofLaw not only provided me withthe tools necessary to pass twobar examinations (New York andNew Jersey), but also exposed meto a vast amount of successful

minority attorneys and judges that havebeen instrumental in my success as apracticing attorney thus far. I have beengroomed to acknowledge that a diversecultural background tends to put a differ-ent perspective on how one perceives the

Kim M. Smith

Creating a More Equal, Balanced and Better Playing Field for Women

______________By Craig Purcell

Note: This is the second of aseries of articles.

The NYSBA has started a fulloffensive attacking recent rec-ommendations from GovernorCuomo’s Medicaid Reform TaskForce to cap malpractice awardsfor non-economic losses at$250,000. The Task Force also called fora major reform in malpractice litigationon behalf of brain-damaged infants.

I recently had the privilege of Co-Chairing the NYSBA’s Committee on theTort System. Committee members drafteda memo opposing the Governor’s TaskForce recommendations. This proposedcap of $250,000 on malpractice awardsfor non-economic damages would, basi-cally, take away the right of parents ofbrain-damaged children to bring lawsuitsagainst any health care providers whosenegligence contributed to the infant’scondition. The memo pointed out thatthese proposals deprive citizens of theirright to access the civil justice system andthe right to a trial by jury in the case ofneurologically impaired infants.

The committee added that none of the27 members of the Governor’s Task Forceare attorneys, judges, or members ofpatient advocacy groups. In fact, the great

majority of the members of theTask Force are employed in thehealthcare field by hospitals,healthcare networks and insur-ers. The committee is requestingclarification on how these pro-posals will help cut Medicaidcosts; Medicaid usually does notpay for the care of these neuro-logically impaired infants.

Stephen P. Younger, Presidentof the NYSBA, was quoted in a New YorkLaw Journal article that addressed thegovernor’s proposal. He said that “weplan to put a full court press on” tooppose the Task Force recommendations.Mr. Younger pointed out that the proposalwas generated by a committee that heardonly from the special interests that wouldbenefit from the proposals, and not fromthe parties that would be affected.

The Executive Committee of theNYSBA endorsed my committee’s report,and is planning to ask its governing body,the House of Delegates, to also endorsethe report at their meeting in Albany onApril 2, 2011. The NYSBA is urging itsapproximately 75,000 members to writetheir state senators and assemblymenexpressing their outrage over the propos-al. They have also have asked local barassociations to lobby against its passage.

A copy of the memorandum produced

Craig Purcell


FOCUS ON


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“

”

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FOCUS ON


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A V O I D M A L P R A C T I C E

________________By Stacy Poscillico

We are pleased to announce the recentformation of the Working ParentsCommittee. Certainly, all of our BarAssociation members desire a successfulcareer, which requires a significantamount of one’s time, energy, and devo-tion to achieve. At the same time, it isalso important to be conscientious fami-ly members and attain a desirable quali-ty of life. This new committee will bringSCBA members together to discuss howone can balance having a successful and

growing career (either working for thegood of public service or at a thrivingand busy firm) with having a happy andhealthy home life (including raisingone’s children, assisting elderly parents,and/or taking care of oneself).

The Working Parents Committee willgive its members a place to trade ideasand thoughts on how one can balance allof the competing demands in their lives.In doing so, members will have anopportunity to network with colleaguesrelative to issues seldom addressed at barassociations, and a forum in which to

connect with others on often unad-dressed but meaningful subjects.Moreover, we are delighted to planSCBA events that are family friendlyand support collegial interaction withcolleagues while enjoying quality familytime.

Indeed, the committee is already hardat work planning a CLE event, togetherwith Touro Law School and the SuffolkAcademy of Law, to provide practicalguidance about alternative work sched-ules, such as compressed and flexibleworking schedules, creating sharedwork positions for themselves or theiremployees, and telecommuting, all ofwhich are highly relevant to workingattorneys. This event will take place onFriday, April 29.

Socially, the committee is also plan-ning a family music class for toddlersand young children and their parent orparents. It is scheduled for Saturday,

April 9, at 10:00 a.m. (with a light break-fast starting at 9:30 a.m.), and willinclude musically inspired activities andinstruction from Mike Soloway, arenowned music instructor for children.You can learn more about Mike at hiswebsite: http://www.mikesoloway.com/.Prior experience promises that this pro-gram will be fun for everyone.

More than ever before, men and womenare equal partners in child raising and tak-ing care of their families. All members ofthe SCBA, male and female, are invited tojoin us on the committee and at futuremeetings and events and be part of theongoing dialogue concerning the wayattorneys with families live and practicelaw in Suffolk County, and the implica-tions for our future. Please look forannouncements of future meetings, andjoin us! We would be happy to have yoube a part of this exciting new endeavor.

Announcing the Working Parents Committee

The Suffolk County Bar Pro Bono Foreclosure SettlementConference Project acknowledges with gratitude the following attor-neys who have been representing the people of Suffolk County whohave been impacted by the foreclosure crisis:

Susan Beckett Richard Lavorata, Jr.Linda Boswell Barry LitesJohn Brooke Mark NeedlemanJames Corcoran Marian RussoJudy Donnenfeld Eric SacksteinHoward Grafstein John TierneyTracy Harkins Trudie WalkerRaymond Lane Glenn Warmuth

The Project would also like to pay special recognition to Tracy Harkins who hadmore than six court appearances. When you see your colleague volunteer attor-neys in court or at the Bar Center please say a special thank you to any one ofthem who have stepped up to the plate to help the hundreds of citizens inSuffolk County who are struggling in this time of crisis. Thank you to Barry M.Smolowitz, Project Coordinator who keeps the project running smoothly.

~LaCova

_______________By Amy Chaitoff

Americans are exhausted.Between demanding work

obligations, family responsibili-ties and surviving in a tougheconomy, none of us are gettingour recommended 8 hours ofsleep a night. The consequencesof sleep depravation and/or dis-rupted sleep when we do get itare many. Not only are we hurting our-selves by stressing out our bodies and ourimmune systems but consistent lack ofsleep or poor sleep habits can lead to seri-

ous heart conditions and evenrisk the safety of the ones welove and the public at large whenmore serious sleep disorders areleft untreated such as sleepapnea.

Our lack of sleep is so bad thatdrowsy driving has becomecommonplace. Sometimes thisleads us to get into car accidentsand there are often far reaching

consequences both physical and legal. The next program presented by the

“Healthy Life Series” is “Asleep at the

Amy Chaitoff

Asleep at the Switch: The Physical and LegalConsequences of Sleep Disorders

About the Speaker: Laurence Engelberg, MD is currently Chief of Pulmonary Diseases at Good

Samaritan Hospital in West Islip, Medical Director of the Good Samaritan SleepApnea Center, and partner in the Long Island Lung Center, a large pulmonary medi-cine group in Bay Shore and Commack. He has been involved in diagnosing andtreating sleep disorders for 28 years, starting in his pulmonary fellowship at StonyBrook University Hospital. Dr. Engelberg is a graduate of Tufts University, and NewYork University School of Medicine. He is board Certified in Internal Medicine,Pulmonary Medicine, Critical Care Medicine, and twice in Sleep Medicine. Dr.Engelberg has appeared on televised discussions regarding sleep apnea and othersleep disorders, and has lectured extensively to community groups about sleep disor-ders.



On the Move…SCBA member Stephen P. Scaring has

been named Of Counsel at Meyer,Suozzi, English & Klein, P.C.

Justin B. Lieberman andBernadette E. Tuthill have joined thefirm DePinto Nornes & Associates,LLP as associates.

The Law Firm of John M. Zenir, Esq.,PC, announces the addition of JacquelynDiCicco as its new associate.

Douglas M. Nadjari, has joinedRuskin Moscou Faltischek’s Health LawRegulatory Department and White CollarCrime & Investigations practice and JohnG. Farinacci, has joined the Trusts &Estates Department.

Stephanie Cunha and JosephJohnson have joined Bryan L. Salamone& Associates P.C. as associates.

Congratulations…Congratulations to Brandon

“Brando” Harrison Pachman who wascalled to the Torah as a Bar Mitzvah onSaturday, March 5. Brando and his proudparents Rochelle and President ElectMatt Pachman, family and friends cele-brated this momentous occasion at theWatermill Restaurant in Smithtownimmediately following the services.Brando’s grandparents Past PresidentHoward E. Pachman (’87-’88) andPhyllis were, unfortunately, not able tobe present at the ceremony, as grand-mother Phyllis is recovering from pneu-

monia. We all wish Phyllis aspeedy recovery.

Congratulations to Lamb &Barnosky, LLP. The firm cele-brates its 30th anniversary thisyear. Their goal is to continuewith measured growth, whilemaintaining the simple principlethat all legal work must be donein accordance with the highestprofessional standards.

Announcements, Achievements, & Accolades…

Turley, Redmond, Rosasco &Rosasco, LLP is offering as a public ser-vice a free guidebook, “Facts About 9/11Victims Compensation Under TheZadroga Act” that explains to those whowere sickened from toxins while workingat the Ground Zero area what they need todo to apply for a claim for the 9/11Victims Compensation Fund. For moreinformation, call 1 (855) WTC-INFO(982-4626) or visit www.zadrogaclaim-sinfo.com.

Forchelli, Curto, Deegan, Schwartz,Mineo, Cohn & Terrana, LLP hosted aplaque ceremony in celebration of thefirm achieving (Leadership in Energy andEnvironmental Design) LEED CI(Commercial Interiors) Silver level atRXR‘s Omni Building.

Edward J. Nitkewicz, will be read hisessay, “Fixing the hole in my bucket” as

part of Awe in Autism’s programat the Glenwood Arts Center onApril 2, which also includedworks of art, music, literature,poetry, photography and videos toprovide inspiration and encour-agement to those in the autismcommunity.

Eli Rosenbaum, HumanRights and Special Prosecution

U.S. Dept. of Justice will speak at theHolocaust Memorial and ToleranceCenter of Nassau County on April 5, 6:30– 8:30 p.m. on “The Holocaust,Guatemala and Rwanda Bring-ingPerpetrators of Genocides to Justice. Forfurther information, call 516-571-8040ext. 106.

SCBA Past President Ilene S. Cooperhas been named to the steering committeeof the Long Island advisory board ofFriends of Karen, a nonprofit that pro-vides emotional, financial and advocacysupport to children with life-threateningillnesses and their families.

Robert M. Harper, Co-chair of theMembership Services Committee, wasrecently appointed to the governmentalrelations and legislation committee of theNew York State Bar Association’s trustsand estates law section.

Susan J. Hermer is pleased toannounce the opening of her law office at3100 Veterans Memorial Highway,

Jacqueline M. Siben

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Diana C. GianturcoATTORNEY AT LAW


______________By Brad Snyder

We field hundreds of calls each yearfrom members of the lesbian, gay, bisex-ual and transgender (LGBT) communitylooking for attorneys who can help onmatters ranging from estate planning todomestic relations and beyond. Eachmonth our volunteers hold a walk-in probono clinic at the Long Island GLBT

Community Center. Each week wedo the same at our community’scenter in Manhattan, which meanswe provide free assistance to nearly500 visitors each year. We hold thearea’s only career fair dedicated toLGBT law students. Our foundationpublishes monthly Lesbian/GayLaw Notes, the most comprehensivesummary of all the latest judicialand political developments affectingour community.

These are just some of the services andprograms offered by the LGBT LawAssociation of Greater New York(“LeGaL”), a bar association of theLGBT community, and its related charita-ble and educational foundation.

As the above examples suggest, ourorganization exists to promote the profes-

sional and personal advance-ment of LGBT lawyers,judges and law studentswhile serving the greaterLGBT community through-out the Tri-State Area. Forme, that translates into aneven simpler but vital goal:we strive to do right by ourmembers so they can do rightby the public.

LeGaL began as a social organization.In 1978, ten people met in New York LawSchool Professor Art Leonard’s livingroom and formed the New York LawGroup, which met on a monthly basis forinformal social gatherings. Art beganpublishing a newsletter reporting on les-bian and gay community events and legaldevelopments. The group grew and in1984 incorporated as the Bar Associationfor Human Rights, one of the first barassociations of its kind in the country. InSeptember 1991, the name was changedto the Lesbian and Gay Law Associationof Greater New York, reflecting our com-munity’s greater recognition and greater(though still incomplete) acceptance.Over the years our name has changed fur-ther to better reflect the diversity of ourmission, of our membership and of thecommunities we seek to serve.

Like any bar association we face thechallenge of persuading attorneys andlaw students that joining our group isworthwhile, that the work we do isessential. But at a time when participa-tion in bar associations is historicallylow in comparison to prior eras, LeGaLis in a period of growth. There are manyfactors that may contribute to this,including the fact that the LGBT com-

munity is growing in visibility andstrength. Perhaps challenging economictimes have also demonstrated anew theimportance of professional networking.Maybe we enjoy the advantage ofappealing to a particular segment of thebar and our tailored programs and ser-vices are less subject to larger trends.

Regardless of the reasons, it is heart-ening to see our community membersstepping up in larger numbers to, forexample, serve as a mentor for a law stu-dent, or to start a new clinic, or offeringtheir time to educate fellow lawyers onever-changing legislative and legalchanges affecting our community. It isall the more gratifying given that the par-ticipation is occurring against the back-drop of some very real progress for ourcommunity – the recent legislativerepeal of the military’s Don’t Ask Don’tTell policy is one important example.

To be sure, we are a long way fromachieving complete equality under thelaw. Each time we receive one of thosephone calls explaining that a deceasedpartner’s family is challenging his or herright to remain in an apartment shared fordecades by a same-sex couple or othercalls from those desperately seekingguidance on how the courts will treat ourfamilies, we are reminded of the enduring

Brad Snyder

LGBT Bar Still Matters


________________By Cynthia Vargas

The Suffolk County Bar Associationrecognizes the importance of the diversi-ty that exists in our profession andencourages diversity in our membership.

I am a Hispanic female attorney. Fromthe first moment I contacted the SCBA Iwas welcomed by all members and sincethen I have found that they offer opportu-nities to all attorneys to join and becomeactively involved.

When I became a new member I hadjust moved back to Suffolk County aftergraduating from Brooklyn Law School.I was in search of a job and was toldthat the SCBA accepted resumes fortheir resume bank, so I went to the Bar

to join personally where I waspleasantly greeted by the staff.While in the computer room, Imet an extremely helpful attor-ney and future President of theAssociation, Barry Smolowitz,who explained many of thebenefits of joining and invitedme to an Academy breakfast. Ijoined the SCBA that day, leftmy resume, and have been amember since, although I am still tryingto make that early morning Academybreakfast. The point is, opportunities tobecome involved in the Suffolk CountyBar Association are vast and well worthtaking.

Diversity encompasses identities

beyond race and gender, andwith diversity comes access todifferent opportunities andresources, which benefits us allin the legal community andsociety in general. The SCBAand minority bar associationsthroughout the County andbeyond realize the need to col-laborate in order to benefit theentire legal community and

that to do so does not diminish the valueof either. The Suffolk County BarAssociation’s continued commitment topromoting and supporting diversity, likethis Edition in The Suffolk Lawyer andthrough so many of its other efforts, canonly strengthen the legal profession and

the greater Suffolk County community,as well as help the next person walkingthrough the Suffolk County BarAssociation’s doors.

Note: Cynthia Vargas is the past presi-dent of the Long Island Hispanic BarAssociation. She can be reached at [email protected].

Cynthia Vargas

SCBA Committed to Promoting and Supporting Diversity

FOCUS ON


FOCUS ON


Perhaps challenging economic times have also demonstrated anewthe importance of professional networking.

“

”


_____________________By Derrick J. Robinson

Our world comprises a varietyof people - of different races,ethnic backgrounds, gender, sex-ual orientation, and physicalabilities. The same varieties ofpeople also constitute the legalprofession. Enabling diversitywithin the profession willrequire a shift from complianceto commitment. As lawyers, we mustacknowledge that while we have a callingto a noble profession, the diversity of ourcultures and backgrounds may oftendivide us. By doing so, we must furtheracknowledge that we have not yet reachedcomplete unity and equality within ourprofession or within the justice system.The challenge is to recognize the con-scious and unconscious barriers to theadvancement of a diverse legal profes-sion.

Active membership in the SuffolkCounty Bar Association is a true invest-

ment toward the goal of creatingdiversity within the legal profes-sion. Lawyers have never beenmore important to society thanthey are today, and our activeinvolvement in local, county andstate bar associations can helpachieve further advancementstoward increasing the racial, eth-nic, gender, and cultural diversi-ty of our profession. One imped-

iment to diversity is the failure on the partof most lawyers to engage in the kind ofnetworking that is necessary to reachdecision-makers in law firms, municipaloffices and client corporations. Activeparticipation in bar associations is animportant step in that direction.

On the local bar association level, Ihave served as the founding president ofthe Amistad Suffolk County Black BarAssociation (2000-2002), now theAmistad Long Island Black BarAssociation. Amistad was a springboardfor my further bar association activity. Iwas encouraged to become active in theSuffolk County Bar Association by theHon. Marquette Floyd, Justice of theSupreme Court, Suffolk County (retired).


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Importance of Diversity in the Bar Association

_____________________By Lucretia M. Lucivero

The Columbian LawyersAssociation of Suffolk County isan organization consisting ofpersons of Italian descent whoare members of the legal profes-sion and greater business com-munity. The Suffolk CountyChapter is one chapter of thelarger New York StateConfederation of Columbian LawyersAssociation which also includes chaptersfrom Brooklyn, the First Department,Nassau, Queens, and Westchester. Aspresident of the Suffolk County Chapter, Ihave the privilege to represent our SuffolkCounty membership at meetings and var-ious functions held throughout thesecounties. These events include organiza-tional meetings as well as dinner eventsand award receptions.

Locally, the Suffolk Chapter meets reg-ularly over dinner where members andguests socialize, share professional expe-riences, and enjoy discussing aspects ofour common heritage. It you are Italianyourself, or have ever had the chance toshare an Italian family dinner, multiplythat and add lawyers to the mix and youcan begin to imagine what a good time wehave at our meetings and the value of tak-ing the time to be there.

What many people do not realize is thatthe Suffolk County Columbian Lawyers

and Confederation are not justabout organizing social eventsand professional networking.Together we also take positionson issues of interest to Italian-Americans, particularly wherethey may be cast in an unfavor-able light and where there is aneed to educate either the publicor local officials about their mis-perceptions. Italian-Americans

have accomplished great things in allareas of society, and getting that word outis something we strive to do.

Currently, we are actively recruiting lawstudents, and impressing upon them theunique opportunity the ColumbianLawyers provides to interact with promi-nent leaders of the legal profession in lessformal and truly meaningful settings. Weare also working on an e-mail directoryand seeking to add a CLE component tofuture meetings. We will also be represent-ed at the Confederation’s Annual RapalloAward Luncheon, where this year’s recipi-

Lucretia Lucivero

FOCUS ON


FOCUS ON


Active membership in the Suffolk County BarAssociation is a trueinvestment toward thegoal of creating diversity within the legal profession.

“

”Dedicated to Promoting and Supporting Persons of Italian Heritage



_________________By Laurette Mulry

The Brehon Society of Suffolk Countyis a professional association of lawyersand judges founded in the spirit of theBrehons, the lawgivers in ancient Ireland.The organization was conceived by a ven-erable group of Irish-American attorneysand jurists who wanted to know moreabout their shared Irish ancestry. JudgeMichael Mullen, Marian Tinari andCornelius Rogers were among the princi-pal members of the group who began tomeet regularly at the Irish Coffee Pub inEast Islip. In the fall of 1988 they decid-

ed to create a more formal organiza-tion and chose the name, Brehon, aderivation of an Irish word meaning“judgment.” Indeed, in Ireland theBrehons were judges.

At its inception, it was decidedthat the Brehons would meet peri-odically to learn as much as possi-ble about Irish history, traditionsand literature. Judge MichaelMullen recalls that their impetus forgathering was purely cultural in nature, arecognition that “we have something incommon, namely our Irish heritage, andthat’s what motivated us.”

Thomas O’Connell served as the firstpresident. He counted among his earlymembers Harry O’Brien, Frank Murphy,Robert Quinlan, James O’Rourke, andNeil Abelson, who, though not Irish him-self, considered himself Irish by marriage(via his wife, Denise Doherty)! Indeed,membership is open to all who have aninterest in Irish culture. Monthly dinnermeetings are informal and welcoming.We also host a more formal AnnualDinner in March, traditionally attendedby the current Irish Counsel General, whoparticipates in honoring a “Brehon of theYear.”

Much has happened in the decadessince the Brehons were first formed. Ourmembership has grown to close to threehundred individuals. The Brehons havehosted dignitaries, celebrities, historiansand noted literati as featured speakers atdinner meetings. For example, authors

Frank McCourt and, morerecently, Peter Quinn hasenlightened our group withstories of the literary processand the importance of incor-porating the history of ournative Ireland. Our membersare still talking (and laugh-ing) about the Christmasparty when author and actorMalachy McCourt enter-

tained our group with extemporaneousmusings about everything Irish. “He hadus all laughing, and at one point, singing,”recalls Past President Brian O’Keefe,“our own resident comedian JimO’Rourke may even have picked up ajoke or two!” On a more serious note, lastyear we hosted retired Brigadier GeneralJim Cullen, a fellow Brehon, who spokeabout his support of a ban on the use oftorture in the detainment of political pris-oners.

Though the Brehon Society is decided-ly not a political organization, our mem-bers have maintained a special interest inthe peace process in Northern Ireland.Like our brethren in the Brehon LawSocieties of New York City and NassauCounty, we have a specific interest in pro-moting peace and justice in our ancestralhomeland. The legacy of Pat Finucane, anIrish lawyer who was murdered in Irelandostensibly for representing nationalistclients, is a constant reminder for all ofour members to use the law to challengeinstitutions that deny equality and civilrights.

Past Presidents like Brian Egan andBrian O’Keefe have furthered our knowl-edge of the Troubles in Northern Irelandto our ultimate benefit with an under-standing that issues of peace, justice andfreedom resonate in all cultures. We drawinspiration from Irish lawyers who, whilein the process of fighting for humanrights, fell victim to intimidation, threatsand violence. Indeed, when our organiza-tion honors a “Brehon of the Year” at ourAnnual Dinner in March, we present thatindividual with our highest award, the“Rosemary Nelson Award” for upholdinghuman rights and the rule of law. LikeFinucane, Rosemary Nelson was a coura-

geous lawyer and human rights defender,who was killed on March 15, 1999 by acar bomb outside of her home in NorthernIreland. She sought basic due process andlegal rights for her clients, who were fre-quently arrested for politically motivatedreasons and detained without access tocounsel. In 2009, Brian O’Keefe wasinstrumental in organizing a CLE presen-tation at the Bar Association. The pro-gram, “Understanding the Peace Processin Northern Ireland: Lessons in ConflictResolution,” presented in conjunctionwith the Suffolk Academy of Law, high-lighted the principles of dispute resolu-tion relevant in every area of law.

Past honorees at our annual dinner haveincluded Judge Michael Mullen, JudgeMary Werner, Judge J.J. Jones, DistrictAttorney James Catterson, andCongressman Peter King. More recently,the Brehon Society posthumously hon-ored Medal of Honor recipient, Navy(SEAL) Lt. Michael Murphy, the son ofour longtime member and Past PresidentDaniel Murphy. On March 25 of this yearwe are honoring George Roach, Esquire,as Brehon of the Year, who is also wellknown as a past president of the SuffolkCounty Bar Association.

While the Brehon Society was notformed for political or networking pur-poses, it has fostered great friendshipsand lasting camaraderie among its mem-bers. The friendly and mutual respectfulatmosphere of our meetings is a testamentto our early founders who wanted a groupthat focused on the literature, traditionand history of Ireland. Indeed, the spiritof the distinguished Irish poet, W.B.Yeats, pervades our meetings and remindsus of the luck of the Irish: Think wheremans glory most begins and ends, and saymy glory was I had such friends.

The current Officers of the BrehonSociety of Suffolk County include:Laurette Mulry, President; William Duffy,Vice President; Robert Barry, Treasurer;Dennis Dowd, Secretary. For informationon how to join the Brehon Society ofSuffolk County, contact Laurette Mulry [email protected].

Laurette Mulry

Brehon Society Offers a Connection to Ireland

While the Brehon Societywas not formed for political or networkingpurposes, it has fosteredgreat friendships andlasting camaraderieamong its members.

“

”


__________________By Raymond Negron

The Long Island Hispanic BarAssociation is a fraternal organizationwith the primary function of promotingits members in the legal community. Ourmembership is very diverse. It includesjudges, elected officials and an array ofprivate practitioners who engage in everyaspect of the law. The organization usesseveral methods to promote itself and itsmembers both from within, and throughcommunity outreach.

In ten years the membership has grownfrom a handful of attorneys to over 100.Also noteworthy, is the fact that the orga-nization always has a great number ofassociate members who are law studentsand local business people who work inareas that support various aspects of thepractice of law. We meet regularly to dis-cuss hot topics, plan our events, and exer-cise our channels of communication. Ourmeetings are never closed and we encour-age everyone to come to listen to our dis-cussions, including the press. We ofteninvite speakers to share expertise on mat-

ters of collective concern to theLIHBA and have had judges, spe-cialized attorneys and elected andcivic leaders address us.

Our outward reach has becomevery active in the past few years.We’ve made ourselves available tomany charitable organizationsthroughout the Latino communityfor interaction as they may see fit.The result has been our attendanceat several affairs where we’ve offeredinformation and consultations on a vari-ety of legal subjects to the general public.We’ve come to witness ourselves provideinformation to people in the comfort oftheir own community on subjects theymay never had the opportunity to inquireabout but for our presence.

The LIHBA aims to be a social networkand not an advocacy group. As a whole, itdoes not want to take positions on politi-cal matters. Our members are attorneysand available to serve any clients whomay wish to contact us individually.However, some subjects have presentedthemselves in recent times that generally

unified the membership tospeak in a unified voice. Inthe wake of the Arizona Lawsregarding the state’s enforce-ment of U.S. ImmigrationLaws, we hosted a sympo-sium at Touro Law Schoolwhich brought approximate-ly 100 attorneys together todiscuss the spectrum ofissues associated with the

law. Former Nassau County ExecutiveTom Suozzi spoke there as well. Theevent was a great success and positionedus as true players among objective andserious legal organizations. The Lucerotragedy in Patchogue and the SuffolkCounty Police Department’s policy ofarresting undocumented drivers wereother examples of events that warranted aunified voice from the LIHBA.

The organization owes a great deal ofgratitude to the Suffolk County BarAssociation. It provides us with logisticalhelp in the form of use of their space,advice with our event organization andinclusion in their program offerings. The

SCBA constantly asks for our participa-tion and advice and always answers ourinquiries. The SCBA is a major resourcefor the LIHBA, a major influence uponour operational style and large part of oursuccess as a Bar Association. We lookforward to a continued relationship in thefuture.

All of our members are listed by loca-tion and practice areas on our web-site,www.lihba.org.

Note: Raymond Negron is in privatepractice. His many accomplishmentsinclude being a member of the U.S. ArmyReserve, JAG Corp., a former SuffolkCounty ADA, Brookhaven Town ATA, anda retired member of the FDNY.

Raymond Negron

Diverse Group Reaches Out to the Community

FOCUS ON


FOCUS ON


Federal Magistrate Judge VacancyA public notice issued by the United States District Court, Eastern District of New

York, seeking applications for a full-time position of United States Magistrate Judgein the Eastern District of New York. Note that the deadline of receipt of the appli-cations has been extended to May 6, 2011. The Magistrate Judge to be selected willbe assigned to the Long Island United States Courthouse in Central Islip, New York.The application form can be accessed on-line at the district’s website:www.nyed.uscourts.gov. Application forms may also be obtained from the Clerk ofCourt, 225 Cadman Plaza East, Brooklyn, NY 11201, (718) 613-2270. The applica-tions must be personally prepared by potential nominees. A disk in Word orWordPerfect and sixteen (16) copies of the completed application must be mailed ordelivered to the office of the Clerk of Court at the above address. ~LaCova

A few clarifications_______________By Linda Novick

Many Suffolk County attorneys havebeen participating in the structured probono programs that are sponsored, or co-sponsored, through the Suffolk CountyCourt’s Pro Bono Action Committee, theSuffolk County Bar Association’s ProBono Foundation or Nassau/Suffolk LawServices’ Pro Bono Project. Other localpractitioners may choose to provide pri-vate pro bono representation to their ownfirm’s clients.

The substantial benefit of performingpro bono work through one of our county’sstructured pro bono sponsored programsincludes an award of free CLE credits,cost-free training, one-on-one mentorshipservices, free legal malpractice insurancecoverage and honorary pro bono recogni-tion. However, in the event you opt to ful-fill your ethical professional responsibilityby performing pro bono work indepen-dently, you are, in no uncertain terms,serving the public good. (Reference to theindependent pro bono service provider

means the attorney who agrees to handle aclient’s case without compensation, NOTthe attorney left with unpaid legal fees).

While the private pro bono practitionerwill not receive the other numerous bene-fits afforded our program’s volunteers, thisgroup of practitioners are afforded thesame opportunity to receive honorary probono recognition. The Suffolk County BarAssociation’s Pro Bono Foundation is con-tinuing its policy of extending eligibilityfor pro bono recognition to all practitionerswho donate their time to pro bono work,including those who do so on their own.Any attorney, who performs independentpro bono client representation and wishesto be considered for pro bono recognition,should contact Linda Novick, SuffolkCounty Pro Bono Coordinator at theSuffolk County Bar Association, at (631)234-5511 ext 233 or [email protected] provided should include theattorney’s name, all contact information aswell as the date and nature of the pro bonorepresentation provided.

Note: Linda Novick is the SCBA ProBono Coordinator.

Private Pro Bono PractitionersSeeking Recognition


Touro Law Center, the Suffolk County Bar Associationand the Suffolk Academy of Law present a morning CLE event

ALTERNATIVE WORKPLACESCHEDULES

FRIDAY, APRIL 29, 20118:30 a.m. - 12:00 p.m.

Touro Law Center, 225 Eastview Drive, Central IslipProgram Description:Alternative workplace practices such as telecommuting, job sharing, flex-time schedules,part-time and compressed schedules are increasingly popular within the legal profession.Such practices can benefit both the employer or firm and the attorneys who work for them,but only if employers and employees understand how to properly implement these practicesby avoiding the legal, ethical, and practical pitfalls of such working arrangements. This CLE,which will be taught by attorneys with actual experience with these practices, will instructattendees on the nuts and bolts of such alternative work arrangements, how to successfullynegotiate such employment arrangements, how to avoid potential risks and challenges thatmight arise, and, most importantly, how to implement such an arrangement so that it is mutu-ally beneficial for the employer, the employee and the clients, even in small firm settings.Alternative work scheduling is becoming a significant factor in the future of the legal pro-fession. If you have ever wondered how these practices could work for you, your business oryour clients, this is the CLE to attend.

3 CLE PROFESSIONAL PRACTICE CREDITS AVAILABLEFor complete program information and to register online, visit www.tourolaw.edu/cleregis-tration.

CLE EVENT SCHEDULE8:30 a.m. - 9:00 a.m. Registration and Continental Breakfast

9:00 a.m. - 12:00 p.m. CLE Program

For more information or questions, please contact Barbara Hakimi631-761-7005 or [email protected]

MUSIC CLASS FOR CHILDREN AND PARENTS

Featuring Mike Soloway of North Shore Musikgarten

Saturday, April 9, 2011 - 10:00a.m.(9:30a.m. for bagels and coffee)SCBA Bar Center, Great Hall

The program is available to SCBA members and professional colleagues whohave children ages birth to 5 years, although older children/siblings are welcome.It is intended to provide a fun-filled, interactive opportunity usually enjoyed byparents who do not work during typical business hours or full time.

RSVP, including names and # of adults and children, and ages of children, amust… no later than Thursday, April 7th to Marion at (631) 234-5511 x 230\

_______________

By Amy Chaitoff

The Suffolk County BarAssociation’s Animal LawCommittee and the SuffolkAcademy of Law will present itsthird annual “Dog DayAfternoon Agility Expo & PetFair” on Saturday, May 14 from10:00 a.m. to 4:00 p.m. at St.Joseph’s College, located at 155West Roe Boulevard, Patchogue (in thequad). Hosted by WALK-FM’s own K.T.Mills, this family fun event includes edu-cational shows teaching the public about avariety of animals and their proper care, aswell as, agility demonstrations throughoutthe day such as fly ball, doggie dancingand Frisbee provided by “All Fur FunAgility.” Rescue groups of every typefrom dogs to pot belly pigs will be inattendance with their animals for adoptionand to see and enjoy.

This expo is a community humane edu-cation and public outreach event thatseeks to teach the public about treatinganimals with respect and learning abouttheir proper care and maintenance and toappreciate how animals help people everyday in an incredibly fun setting.

Last year the expo hosted over 20 rescuegroups of all kinds and over 23 vendorsselling everything from dog toys to artwork and jewelry. You never know whatyou will find at the fair! Presenters willinclude guide dog organizations, wildlifegroups, farm animal rescuers, search and

rescue dogs, and much more! Aprofessional DJ will be pump-ing out energy pumping tunes,food vendors will be crankingout yummy treats of all kindsand don’t forget the ice cream!There will be free face paintingfor the kids and a balloon magi-cian creating all kinds of funballoon characters from theirfavorite cartoons. All funds

raised at the event will go toward the ani-mal law committee’s public outreach pro-grams and CLE programs. Most impor-tantly, many homeless dogs, cats, parrotsand pigs that come to the expo each yearlooking for forever homes will find theirperfect matches and forever families. Thisis what it is all about at the end of the day,making a difference in the lives of animalsand the people who love them.

So come and support the good workingsof the Animal Law Committee and letyour inner child come out to play by join-ing your fellow bar members in a funfilled day outdoors with animals, enter-tainment, vendors, food, and great raffleprizes! Admission is $10.00 per car! Bringyour dog for fun and a run through theagility course! (All dogs must be leashedand well behaved. If your furry frienddoes not play well with others leave themon the couch.) For additional information,please email [email protected] or call Amy Chaitoff at (631)265-0155, ext 201 or 204. Rain date isSunday, May 15.

A Doggone Good Time!

Amy Chaitoff

TRUSTS AND ESTATES UPDATE______________________By Ilene Sherwyn Cooper

Attorney’s FeesIn a contested accounting proceeding,

the objectants moved to reargue thecourt’s prior rulings of June 29, 2010 infavor of one of the trustees, which deniedobjectants’ requests that: the fiduciary bedenied legal fees; be denied commissionsor at least annual commissions on princi-pal; and be directed to pay the legalexpenses incurred by them in the litiga-tion. The court had previously surchargedthe fiduciary for losses sustained by theobjectants as a result of the fiduciary’sdelay in distributing the principal of theirrespective trusts upon termination.

The court granted reargument, butadhered to its original determinations.The court found that it had neither over-looked nor misapprehended the law withrespect to the issue of the fiduciary’s legalfees and costs and to his entitlement toannual commissions. The court held thatthe remaining issues required further dis-cussion.

Insofar as the issue of objectants’ legalfees was concerned, the court opined thatNew York courts adhere to the Americanrule, under which parties prevailing in lit-

igation ordinarily may not shifttheir legal expenses to thelosers. Although the court notedthat the rule can at times under-mine the financial value of avictory, it nevertheless contin-ues to be applied, except underlimited circumstances.

The court found it significantthat one such circumstanceinvolved the situation in which afiduciary personally profits at the expenseof the estate and is surcharged according-ly. In such instances, case law has sus-tained the fiduciary’s liability for the liti-gation expenses incurred in pursuit of thesurcharge. The court concluded that thecase before it was distinguishable fromthis line of cases inasmuch as the fiducia-ry’s breach of duty, attributable to hisdelay in distributing trust assets, was notapparent to him at the time it was com-mitted. Indeed, the court noted that thefiduciary acted upon the advice of coun-sel, which, though not a defense, was rel-evant to the issue of whether his conductwas designed to achieve a self-servingpurpose.

Accordingly, the objectants’ request toreallocate litigation expenses was denied.

The court further held thatprecedent did not sustain objec-tants’ request for denial of allcommissions to the fiduciary. Inpertinent part, the court that thefiduciary did not evidence com-plete indifference to his steward-ship, and neglect the administra-tion of the trusts subject to hischarge. Rather, the court found itrelevant that his decision to relin-

quish control to his co-fiduciary was atthe request of his co-fiduciary and per-haps her adult sons, the objectants.Further, the court noted that his inactionat the time of distribution did not absolvehim of liability but resulted in a signifi-cant surcharge. Under such circum-stances, the court held that he should notbear the loss of commissions as well.

In re Lasdon, NYLJ, Nov. 19, 2010, p.36 (Sur. Ct. New York County)(Sur.Glen).

SubpoenaIn a contested probate proceeding, the

preliminary executors moved to quashsubpoenas issued to JP Morgan Chaserequesting financial documents relatingto an attesting witness, as well as to theattesting witness personally requestingthat he appear and be examined and toproduce all of his individual income taxreturns and bank accounts, recordsauthored by any doctor or home careattendant, and all documents relating tothe attorney-draftsman’s representation ofthe decedent or her companion, who wasnamed as a co-executor in the propound-ed will.

In support of the motion, the prelimi-nary executors alleged that the subpoenaswere overly broad, and that the personalfinancial information of the witness, whoreceived no benefits under the will, hadno bearing on the objections to the valid-ity of the instrument. Additionally, themovants alleged that the attesting witnesshad already been deposed, and that if afurther examination was requested, leaveof court pursuant to SCPA 1404(6) wasrequired.

Upon consideration of the subpoenas,the court held that they were too broad,inasmuch they were not limited to a timeframe related to the execution of the pro-pounded will. Moreover, the court con-cluded that the objectant had failed toshow a relationship between the witness’personal tax returns and the issues in thewill contest. Although the objectantalleged that the information sought couldbe useful to him in a future discovery pro-ceeding should he prevail in the will con-test, the court opined that this did notserve to establish the relevance of the

documents in the probate proceeding.Additionally, the court concluded that tothe extent the subpoenas sought docu-ments authored by medical professionals,they were on their face unreasonable,given the rules of confidentiality sur-rounding medical records, burdensome,and lacking in specificity.

Accordingly, the court granted themotion.

In re Moles, NYLJ, Nov. 4, 2010, p. 26(Sur. Ct., New York County) (Sur.Anderson).

SurchargeBefore the court in In re Gourary, was

a motion for summary judgment in a con-tested intermediate accounting by theexecutrix of the estate, the decedent’sspouse. Objections to the accountingwere filed by the fiduciary’s son alleging,inter alia, omission of income tax refundsfrom the estate, use of estate funds to payexpenses attendant to the apartment inwhich the fiduciary resided, failure of thefiduciary to reimburse the estate forpenalties and interest on late payment ofestate taxes, and use of estate funds to payfor secretarial assistance in the adminis-tration of the estate.

The court denied the motion in part andgranted the motion in part. With respectto the income tax refunds, the recordrevealed that after the decedent’s deaththe executrix filed joint income taxreturns for her and her deceased husband,and utilized estate funds to pay the tax.The tax was overpaid to the extent of$483,157, and a refund was issued, whichthe executrix retained for herself. Thecourt held that the executrix could notclaim those funds as her own, inasmuchas estate property was utilized to satisfythe liability. Accordingly, summary judg-ment was granted on this objection andthe executrix was surcharged for theamount of the refund, together with statu-tory interest.

The court also granted summary reliefwith respect to the use by the fiduciary ofsecretarial assistance. The court foundthat although the estate was large, itsassets were not complex, and the fiducia-ry had failed to demonstrate why theestate’s administrative needs were beyondher capacity to handle. Accordingly, thefull amount of the fees paid was chargedagainst the fiduciary’s commissions.

Similarly, the fiduciary was surchargedfor use of estate funds to satisfy theexpenses of her apartment. The recordrevealed that the apartment had beenspecifically bequeathed to the fiduciary,although the shares had not been trans-ferred to her until 15 months after the


_____________________By Lynne Adair Kramer

How good do you want to feel about thefuture of this country? You need only lookat the applications for the Suffolk CountyBar Association Scholarship to know whatan outstanding generation of young peopleis coming up through the ranks.

Each year our association reaches out tothe community in an effort to assist a wor-thy graduating high school student withthe cost of his or her college education.The applicants submit not only their tran-

scripts and letters of recommenda-tion, but also an essay on a topic theyselect that is a matter of current inter-est or concern. It takes the membersof the scholarship committee days toread through the numerous applica-tions we receive and narrow the fielddown to our eventual winner, and thecompetition is extraordinary.

The community has responded toour invitation in large numbers andeach year since its inception we havereceived over 100 impressive applications.

We would like to continue tospotlight a deserving studentand show the residents of ourcounty the Bar Association’scommitment to our neighbors,but to do so we need yourhelp!

We recognize that duringthese tough economic timesany number of people andorganizations have sought and

continue to seek your support. But we arenot just any organization. We are your Bar

Association and we are asking you toinvest with us in the future. If every one ofour members gave even a small donationwe would easily be able to fund our schol-arship and possibly assist even more thanone fine student as they take on the signif-icant financial burden of college. Pleasesend any donation you can to the SuffolkCounty Bar Association Scholarship Fund.You will feel better for having done it, andI personally will be grateful to you forhelping to continue this great tradition thatwas started during my presidency.

Lynne AdairKramer

Help a High School Student Support the SCBA High School Scholarship Fund

Appellate Division-Second Department

_____________________By Ilene Sherwyn Cooper

Attorney Resignations The following attorneys, who are in

good standing, with no complaints orcharges pending against them, have vol-untarily resigned from the practice of lawin the State of New York:

Giuseppe AcocellaEric S. AngelWendella Ault BatteyMark Howard BorofskyTony M. ChangJeffrey John CorradinoEdward Bertram CowpeJoseph Domenic GrisantiMichael P. GurlidesNorman Gary KnopfVirginia E. LupoliDiana B. MatsonMark Thomas McDonoughCaryn Sue MohanPaul L. ShapiroJonathan Paul SheldonStuart M. SilbermanPhilip D. Tobolsky

Attorney Reinstatements Granted The application by the following attor-

neys for reinstatement was granted:

Susan G. Jamiolkowski

Attorneys Suspended:

Edward J. Martz: The GrievanceCommittee moved for an order authoriz-ing it, inter alia, to suspend respondentfrom the practice of law based upon hisprofessional misconduct, and to instituteand prosecute a disciplinary proceedingagainst him. In the absence of oppositionto the application, and based upon therecord presented, particularly the respon-dent’s admitted failure to preserve fundsand misappropriation of funds entrustedto his charge, as well as his failure tocooperate with the committee, the motionwas granted.

Note: Ilene Sherwyn Cooper is a part-ner with the law firm of Farrell Fritz, P.C.where she concentrates in the field oftrusts and estates. In addition, she isimmediate past president of the SuffolkCounty Bar Association and a member ofthe Advisory Committee of the SuffolkAcademy of Law.

COURT NOTES

Ilene S. Cooper



THE SUFFOLK LAWYER — APRIL 201114P

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The members of the SCBA and the bench met to discuss matters of mutual interest at a Bench Bar meeting at CasaRustica.

Willam Ferris, who chairs Bridge-the-Gap with StephenKunkin.

FREEZE FRAME

SCBA Helps New Attorneys Bridge-The-Gap

More than 80 new attorneys attended the Academy’s Bridge-The-Gap programin mid-March.

Don Engstrand sheds llight on Federal Court practice. SCBA President Sheryl Randazzo describes the benefits of bar association mem-bership.

Barry Smolowitz, Barry Warren and Harvey Besunder discuss“Everyday Ethics.”


Call today to discuss how our firmcan clear the hurdles for you!

Read our article, “The Personal Injury Attorney’s Survival Guide to the New Anti-Subrogation Law” in the NYSTLA publication, The Bill of Particulars.

Supreme Court Justice C.Randall Hinrichs has beenappointed as Suffolk County’snew administrative judge effectiveMarch 14, 2011, as recentlyannounced by Chief Judge AnnePfau of the Office of CourtAdministration.

Justice Hinrichs is replacingJustice H. Patrick Leis III, whohas been administrative judgesince 2003. Justice Leis has beenassigned presiding justice of theModel Guardianship Part.

Justice Hinrichs who served asan assistant district attorney fornearly two decades, was firstelected to the Suffolk Countybench in 2002, as a County Courtjudge. He was appointed super-vising judge of County Court in2008 and was elected to theSupreme Court Bench in 2010.He also served as an actingFamily Court judge early in hisjudicial career.

The officers, directors, membersand staff of the Suffolk County BarAssociation wish Justices Hinrichs

and Leis every success in their newpositions. We are happy to honorthem and look forward to workingwith them for the common goodand welfare of our legal communi-ty for many years to come.

~LaCova

Justice C. Randall Hinrichs has beenappointed Suffolk County’s ChiefAdministrative Judge.

C. Randall Hinrichs IsSuffolk County’s NewAdministrative Judge


Across

3 remedy requiring exact adherence toprovisions of a contract, usually tocompel conveyance of property

4 a written agreement promising to door not do something relating to realestate

5 a right, claim, or interest in landwhich subsists in another, diminishesits value, and survives conveyance

7 nonpossessory right to enter anoth-er’s land to take soil, timber, miner-als, etc.

9 land benefiting from an easementover another parcel

14 the surrender or relinquishment ofproperty or rights

15 an estate limited by the span of ahuman’s time on earth

16 property owner only owns interior ofeach unit and interest in commonareas

17 statutes requiring filing to givenotice to the world that title to cer-tain property has been conveyed

18 a claim, encumbrance, or charge onreal property for payment of a debt,duty, or obligation

19 the ancient rule against remaindersin a grantee’s heirs

20 acquiring title to real property bypossession for a statutory periodunder certain circumstances

21 a tenant who remains in possessionafter expiration of lease

22 to put out and/or deprive one of pos-session or use of property

24 process whereby a parcel of land ismeasured and its boundaries, cours-es, and contents defined

26 property owners of a single parcel,each owning a distinct, proportion-ate, and undivided interest in theproperty, are ________

28 right to use another’s property

29 written result of an examination ofdeeds and other records of title

32 when a life tenant allows property tofall into disrepair or fails to protectland

33 state’s power to take private propertyfor public use

Down

1 revocable right to use another’s land2 the transferor of property4 property ownership whereby title is

held by a corporation with apart-

ments leased to its shareholders6 transfer of real property with the

intent to hinder, defraud, or delay acreditor

8 a covenant allowing subsequent own-ers of land to enforce its provisionsis said to ___________

10 tenancy continuing for successivefractions (usually month to month)until terminated by either party

11 sum agreed to be paid by party tocontract if promise is broken

12 one who purchases real propertywithout notice of defects in title

13 acts that benefit property economi-cally despite substantial change inuse

23 Lat. a pending suit25 an interest in land created by written

instrument providing security pay-ment of a debt

27 final transaction where considerationis paid, mortgage secured, deeddelivered, etc.

30 any agreement creating alandlord/tenant relationship

31 written conveyance transferring titlefrom one to another

CROSSWORD PUZZLE

Note: J. DavidEldridge, a member ofthe Law Office ofEdward M. Taylor inSmithtown, is an attor-ney experienced incivil, commercial andreal property law, liti-gation and appeals. A

past-Director of the Bar, he wasAssociate Dean of the Academy ofLaw and chaired its LegislativeReview Committee.

J. DavidEldridge

for election this year. Awards of Recognition are presented at

our Annual Meeting as well as tributes toour outgoing Directors and outgoingAcademy Officers. SCBA Directors to berecognized for completion of their three-year terms are: Hon. W. Gerard Asher,Annamarie Donovan, Joseph A. Hansheand Derrick J. Robinson. OutgoingAcademy Officers who will receiveplaques are: Nancy E. Ellis, Diane K.Farrell, Richard L. Filiberto, Allison C.Shields and John C. Zaher.

The “Golden Anniversary” honorees,members who have practiced law for 50years or more, will be presented with aspecial tribute. They are as follows:Richard E. Borda, Rita R.F.Brettschneider, Haig Chekenian, Hon.

Marquette L. Floyd, Michael T. Ivone,Herbert Kotler, Ernest J. Peace, John J.Roe, III, Harold M. Rothstein, Peter D.Rubinton, Dominic J. Santoro, Hon.Allen M. Smith, and William A.Sulahian.

The $1,000 college scholarship for ahigh school student will continue, thanksto monies donated by SCBA members,and the SCBA scholarship committee(Lynne Adair Kramer, Sheryl L.Randazzo, Rosemarie Tully and Ilene S.Cooper) who developed the criteria andreview the applications.

The SCBA leaders are hoping for agood membership turnout for the AnnualMeeting – to conduct the association busi-ness and to share in honoring those whohave served so well.

SCBA Annual Meeting Electionsand Recognition (Continued from page 4)

Switch: The Physical and LegalConsequences of Sleep Disorders,” pre-sented by guest speaker Dr. LaurenceEngelberg, MD. It will be held onWednesday, May 4, 2011, from 4 to 6p.m. in the Board Room.

Guest speaker, Dr. LaurenceEngelberg, will be discussing the physicaland legal aspects of sleep disorders,including drowsy driving, sleep Apneaand car accidents, and shift workers andother job-related accidents. He will alsobe addressing the signs and symptoms ofsleep apnea, what things or circumstancesincrease the risk of sleep apnea, whoshould be evaluated for a sleep study, the

GSH Sleep Apnea Center testing facility,CPAP Therapy, why treatment is soimportant, the consequences of long termsleep apnea, other common sleep disor-ders, helpful tips for a good night’s sleepand more.

After the discussion, there will be anopportunity to relax and network with Dr.Engelberg and other like-minded SCBAcolleagues over wine and cheese. Butspace is limited, so pre-registration isstrongly encouraged. The cost is $15.00for pre-registrants (if received by May2nd) and $20.00 thereafter. You can regis-ter by contacting Marion at (631) 234-5511 x230.

Asleep at the Switch: The Physicaland Legal Consequences of SleepDisorders (Continued from page 6)


Loss of Future Earnings Federal Bankruptcy ExemptionSecond Circuit decision emphasizes forward-looking approach

CONSUMER BANKRUPTCY

Pro Bono Attorney of the MonthThe Touro Family Law Clinic, its Students and Director Lewis A. Silverman

PRO BONO

________________ By Craig D. Robins

Bankruptcy exemptions have beenreceiving a great deal of attention here inNew York lately because of the recentdramatic changes to our state’s exemp-tion statutes. These changes include giv-ing debtors the option of using either thefederal or New York State exemptions.

It is therefore an ideal time to discussa recent, interesting Second Circuit deci-sion involving a Connecticut bankruptcycase that addresses the federal exemp-tion for protecting entitlement to a claimfor lost post-petition earnings.

Debtors had a claim for WrongfulTermination

In Jackson v. Novak, 593 F.3d 171 (2dCir. 2010), the husband and wife debtors,who were a psychiatrist and a psycholo-gist, filed a typical Chapter 7 consumerbankruptcy petition in which they soughtto discharge typical consumer debt. Oneof the assets that they sought to exemptconsisted of the proceeds of a settlementfor wrongful discharge.

Prior to filing, both debtors had beenemployed by a health insurance compa-ny in Connecticut. The company closedthe local office and terminated thedebtors’ employment about six monthspre-petition. Also prior to filing, thedebtors asserted claims against the com-pany for wrongful termination, allegingthey were fired in retaliation for chal-lenging the way certain health insuranceclaims were treated.

In October 2003, the debtors filedtheir Chapter 7 bankruptcy petition, list-

ing the cause of action for wrong-ful termination. Thereafter, theChapter 7 trustee pursued theclaims against the former employerand reached a settlement of$130,000 about a year after thebankruptcy was filed.

The settlement was “to satisfyclaims for future lost earnings.”After attorney’s fees and expenses,the net proceeds to the debtorsamounted to $83,000. In essence, thesettlement essentially bought out thedebtor-husband’s contract, paying himan amount equal to one year’s worth ofsalary. The debtor had stood to earn halfof this amount prior to the time the bank-ruptcy was filed, and the other half, afterthe bankruptcy was filed.

Debtors and trustee litigate overexempting proceeds from claim

The debtors sought to exempt the set-tlement proceeds by amending theirschedule of exemptions, stating thatunder Bankruptcy Code § 522 (d)(11)(E),which is one of the federal exemptionprovisions, these proceeds were exempt.

This section of the federal exemptionspermits a debtor to exclude from thebankruptcy estate “a payment in compen-sation of loss of future earnings of thedebtor to the extent reasonably necessaryfor the support of the debtor and anydependent of the debtor.”

The trustee objected, arguing that theproceeds were not exempt under severaldifferent theories, and the matter landedbefore the bankruptcy court judge whoheld a trial.

Bankruptcy Court uti-lizes forward-lookingapproach

The court noted that thedebtor’s schedules indicatedmonthly income of $10,000and monthly expenses of$14,000, a monthly shortfallof $4,000. In addition, thecourt also noted that debtorsretained post-petition, $6,200

in cash, and a boat and trailer; they had theuse of four vehicles; they lived in a$435,000 house; they owned a one-thirdinterest in 20 acres of land in Tennessee;and both debtors were working “withoutany mental or physical disabilities orrestrictions.”

The bankruptcy court concluded thatgiven the language of § 522(d)(11)(E),only earnings related to the period after thefiling of the bankruptcy petition could beexempted. Property of the estate and adebtor’s exemption therein, is determinedas of the bankruptcy petition date. Section522(d)(11)(E) refers only to post-petitionloss of earnings, and the debtor may notexempt that portion of the settlement pro-ceeds that provided compensation of hispre-petition loss of earnings.

In other words, the debtor was only ableto protect that compensation which hestood to earn after the petition was filed.However, the court did not stop there. Thestatute states that debtors can only exemptsuch payments “to the extent reasonablynecessary for the support of the debtor andany dependent of the debtor.”

Accordingly, the court conducted acomputational analysis. Basically, since

the debtors had a monthly shortfall of$4,000 a month, the court let the debtorskeep that sum for the period of the settle-ment that covered the post-petition period.That amount was $16,550.

The debtors, who had hoped for muchmore, appealed to both the District Courtand the Second Circuit Court of Appeals,arguing that the bankruptcy court hadimproperly calculated the amount. Bothappellate courts affirmed the decision ofthe bankruptcy court.

The Second Circuit emphasized that theprovisions of § 522(d)(11)(E) apply onlyto post-petition earnings and defined theterm “future” as “looking forward from thedate of the bankruptcy filing” and not fromsome previous point in time, as the debtorshad argued.

The Court of Appeals found no error inthe lower courts’ reasoning that consideredsuch factors as the debtors’ needs, includ-ing present and anticipated expenses, theirassets, present and anticipated income,training and education, and “ability to earna living” in arriving at the $16,550 figurethat represented a shortfall in their income.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast twenty years. He has offices inCoram, Mastic, West Babylon, Patchogue,Commack, Woodbury and Valley Stream.(516) 496-0800. He can be reached [email protected]. Pleasevisit his Bankruptcy Website: www.BankruptcyCanHelp.com and his BankruptcyBlog: www.LongIslandBankruptcyBlog .com.

Craig D. Robins

_ _____________By Rhoda Selvin

Too many prospective clients comingto the Pro Bono Project (PBP) seekingrepresentation for a divorce are put on theProject’s matrimonial waiting list becausetoo few volunteer lawyers are available.In gratitude, the project has deemed theFamily Law Clinic of Touro Law Centerand its director, Lewis A. Silverman asPro Bono Attorney of the Month for April2011 for using the waiting list as its onlysource for matrimonial cases.Technically, of course, the students areattorneys-to be; but with ProfessorSilverman as their mentor, they doadmirable work. As a group they werehonored together in January 1996. Inaddition, Professor Silverman receivedthe same accolade alone in September1999 and September 2005, primarily forhis major role in planning with other localprofessional organizations and runningpro se matrimonial clinics.

Since September 2005, the last timeProfessor Silverman was the honoree, theclinic has devoted over 950 hours to 75PBP matrimonial cases in which all theclients had met the Federal poverty stan-dards that all federally funded projectsrequire. This is not the full extent of theClinic’s work, however. ProfessorSilverman trains clinic students to handle

custody proceedings, to work with custo-dial parents in child support proceedings,and to represent victims of domestic vio-lence in obtaining Orders of Protection. .All their work is pro bono and all theclients are poor, but those not comingfrom PBP are not required to meet thestringent Federal poverty requirements.

Professor Silverman, proud of the legalaccomplishments of his students wouldnot hear of again being chosen asAttorney of the Month alone. Heexplained, “I really want to thank all thestudents who have been enrolling in theFamily Law Clinic and worked so hardfor the benefit of our clients.” He alsoexpressed his gratitude to Touro DeanLawrence Raful for all his support of theFamily Clinic and to the three people whohave served as the Clinic’s staff attorney:Marjorie Zuckerman, who recentlyretired; Danielle Schwager, who has justtaken up the post; and Louis Sternberg,Touro Class of 2009, who served duringthe interim.

As an example of the student’s success-ful work, Professor Silverman described arecent case in which the client was anolder woman in what was a second mar-riage for both parties. They had been mar-ried in Long Island and had moved toSouth Carolina after his retirement. Whenthe husband got sick, his daughter took

him to live near her in upstate New York;the wife came back to Suffolk County.The husband filed for divorce while livingin St. Lawrence County near theCanadian border. Although he knew hiswife’s income was less than $1,000 permonth with no hope of any increase andthat she was living in someone else’shouse, he wanted to cut her off with nomoney and no health insurance.

The students worked diligently on amotion to change the venue, arguing that

the parties had never lived as husband andwife in Lawrence County, that the mar-riage occurred in Suffolk County, and thatthe wife’s health issues prevented herfrom traveling to the upstate court; thechange was granted. The next goal was tonegotiate a separation agreement ratherthan a divorce, since as a divorcee theirclient would lose health insurance cover-age. The student’s hard work procured adeal that was in her best interests. The



___________________By Robert M. Harper

For the party that compels an account-ing in the Surrogate’s Court, a fiduciary’sfailure to account is, to say the very least,frustrating. In many instances, the partyseeking an accounting – who likelyalready suspects wrongdoing on the fidu-ciary’s part – is left to wonder what thefiduciary is hiding and how the fiduciarycan flout a court order. Frustrating as itmay be, however, the party petitioning foran accounting does have several remediesto pursue, including civil contempt. Thisarticle discusses the procedure for secur-ing a contempt order and the conse-quences arising from it.

The duty to account is among the mostfundamental of all fiduciary obligationsand the failure to honor it may warrantcivil contempt. Following personal deliv-ery upon a fiduciary of a certified copy ofthe order directing an accounting and thecommencement of a contempt proceed-ing, a fiduciary that refuses or willfullyneglects to account may be held in civilcontempt of court.1 Civil contempt isespecially appropriate when the fiduciaryknowingly disobeys a lawful order of the

court, thereby prejudicing anoth-er party’s rights.2

Matter of Sofi is instructive.3 InSofi, Bronx County SurrogateLee L. Holzman issued an orderdirecting the executors of anestate to account.Notwithstanding the fact that cer-tified copies of the order werepersonally delivered to theexecutors, they failed to filetheir account within the period prescribedby the surrogate, causing the petitionersto make a contempt application.Referencing the executors’ non-compli-ance with the accounting order, SurrogateHolzman held them in contempt of court.

However, a contempt order – withoutmore – may be insufficient to secure whatthe party that compelled an accountingreally desires, i.e., an accounting of thefiduciary’s conduct. When a fiduciary hasfailed to account and been held in con-tempt of court, the next step may involveseeking a warrant of commitment fromthe Surrogate’s Court.

That is precisely what happened inMatter of Brissett.4 There, the executor ofan estate was directed to account for her

fiduciary conduct, held in con-tempt of court for failing to do so,and afforded an opportunity topurge herself of contempt byaccounting within 30 days of ser-vice upon her of the contemptorder. As the executor failed topurge herself of contempt,Surrogate Holzman signed a war-rant of commitment, directing thesheriff of the City of New York to

take the executor into custody and bringher before the court. The sheriff did soshortly thereafter.

In addition to a contempt order and awarrant of commitment, the partyaggrieved by a fiduciary’s failure toaccount may wish to seek the fiduciary’sremoval and an order permitting thatparty to take and state the fiduciary’saccounting.5 For while the removal of afiduciary would normally necessitate ahearing, a hearing is not always requiredin the case of a fiduciary who fails tocomply with an accounting order.6

In sum, when a fiduciary fails to com-ply with a compulsory accounting order,the party that compelled the accountingneed not waste away in despair. The party

should weigh the options available tosecure the fiduciary’s compliance withthe accounting order, including by civilcontempt. This may ultimately inspire thefiduciary to render an accounting, allow-ing the interested parties to litigate themerits of the fiduciary’s conduct.

Note: Robert M. Harper is an associateat Farrell Fritz, P.C. concentrating inestate and trust litigation. He is Co-Chairof the Bar Association’s MembershipServices and Activities Committee andVice-Chair of the GovernmentalRelations and Legislation Committee ofthe New York State Bar Association’sTrusts and Estates Law Section.

1 S.C.P.A. §§ 606 and 607; Judiciary Law § 753;Matter of Armata, N.Y.L.J., 4/28/2006, at 32, col.2 (Sur. Ct., Suffolk County).

2 Matter of Abel, N.Y.L.J., 3/5/2010, at 32, col. 6(Sur. Ct., Bronx County).

3 Matter of Sofi, N.Y.L.J., 3/15/2010, at 28, col. 2(Sur. Ct., Bronx County).

4 Matter of Brissett, N.Y.L.J., 7/26/2010, at 26, col.6 (Sur. Ct., Bronx County).

5 Matter of Gaddy, N.Y.L.J., 3/24/2009, at 36, col. 3(Sur. Ct., New York County); S.C.P.A. § 2206 (set-ting forth the procedure for taking and stating afiduciary’s account).

6 Matter of Chase, 44 A.D.3d 1180 (3d Dep’t 2007).

Robert M. Harper

Compulsory Accounting and ContemptTRUSTS AND ESTATES

Bench Briefs (Continued from page 4)

or the stipulation of all parties not obtained before servingthe “Second Supplemental Summons” and “SecondAmended Complaint.

In Elver Velasquez v. Seltenreich Property ManagementCorp., Jennifer Seltenreich, Rochard Cohen, Hope Cohen,Twin Fork Flooring Tile & Mason, Inc. a/k/a Twin ForkFlooring & Cleaning Services, Inc., and Bogan Zalewski,Index No.: 19083/09, decided on August 4, 2010, the courtdenied plaintiff’s motion for an order directing entry of adefault judgment pursuant to CPLR §3215(b). The courtnoted that the movant’s submissions did not reflect thatplaintiff obtained leave of court or the stipulation of all par-ties in accordance with CPLR §3025 before serving the“Second Supplemental Summons” and “Second AmendedComplaint” on which the motion for default was predicat-ed. The court pointed out that it is well established thatafter the initial time period set forth in the CPLR §3025(a)has expired, service of an amended or supplemental plead-ing without leave of court or the stipulation of all parties isa nullity. Here, even if the court deemed that service of thesecond supplemental summons and second amended com-plaint were otherwise proper, plaintiff’s submissions failedto establish entitlement to a default judgment as there wasno affidavit of the facts constituting the claim or a com-plaint verified by a party with personal knowledge of thefacts as required by CPLR §3215(f).

Motion for summary judgment granted; the instantaction was both procedurally defective and time barred.

In Maria Zabala v. Town of Islip and County of Suffolk,Index No.: 10061/08, decided on January 4, 2011, thecourt granted the summary judgment motion by defendantTown of Islip. The court pointed out that plaintiff com-menced the instant action on April 9, 2008, to recover dam-ages for injuries allegedly sustained on January 11, 2007,when she tripped and fell while walking on a sidewalk. Thecourt noted that by order dated July 7, 2008, this courtdenied a motion by plaintiff for leave to serve a late noticeof claim, and dismissed a prior action assigned index num-ber 4449/08, brought by plaintiff against the same defen-dants seeking damages for personal injuries allegedlyresulting from the same trip and fall accident. In the instantaction, The Town of Islip now moved for summary judg-ment dismissing the complaint against it on the ground thatplaintiff failed to serve a notice of claim within the 90-dayperiod required by General Municipal Law §50-e. Theplaintiff opposed the motion arguing that it was premature,as the plaintiff may appeal the order denying leave to servea late notice of claim issued by Justice Molia in July 2008.The court documented that a review of the court’s comput-erized records indicated no such appeal had been filed bythe plaintiff in the prior action. The court held that theinstant action was both procedurally defective and timebarred.

Honorable Peter H. Mayer

Motion for default judgment granted; opposition failedto make the requisite showing of a meritorious defense ora reasonable excuse for the default, and failed to includea cross motion with proposed answer.

In Andrea Valdez v. Amable DeJesus Ferreira and MariaCollado, Index No.: 27696/09, decided on September 29,2010, the court granted the motion by the plaintiff for adefault judgment against defendants pursuant to CPLR §3215. In granting the motion, the court noted that a defen-dant seeking to avoid a default judgment must personallyaffirm in an affidavit of merit that grounds of a defense orof a meritorious opposition to the relief sought in the com-plaint, and must submit a proposed answer to the court inits opposition papers. Here, the defendant’s oppositionfailed to make the requisite showing of a meritoriousdefense or a reasonable excuse for the default, and failed toinclude a cross motion with proposed answer.

Honorable Thomas F. Whelan

Motion pursuant to CPLR§ 3211(a)(5)(7) convertedinto a motion for summary judgment pursuant to CPLR3211(c); the absence of a necessary relationship betweenthe parties may bear on the merits of the cause of action,but it is more properly the subject of a CPLR 3212 motionfor summary judgment.

In Anthony Bernardis and Rosanne Bernardis v. Town ofIslip, Judith Stein, individually and as Executrix of theEstate of Kenneth Stein, Jr., and as Trustee of the 1999Stein Trust and as a Trustee of a Testamentary Trust; DavidS.J. Neufeld, as Executor of the Estate of Kenneth F. Stein,Jr.; Gwendolyn Zegel, as Trustee of a Testamentary Trust,and Kenneth Stein, III, as Trustee of a testamentary Trust,Town of Islip v. LoDuca Associates, Inc, LoDucaAssociates and Richard LoDuca, Index No. 9250/08,decided on December 13, 2010, the court converted themotion by third party defendants pursuant to CPLR§3211(a)(5)(7) into a motion for summary judgment pur-suant to CPLR 3211(c). In rendering its decision, the courtnoted that it was not argued that the town failed to state acause of action for contribution or indemnification, butrather that there was no privity or relationship between theparties to support such a cause of action. The court foundthat this argument was beyond the scope of a CPLR3211(a)(7) challenge. The court pointed out that on amotion to dismiss pursuant to CPLR 3211 (a) (7) for fail-ure to state a cause of action, the court must accept thefacts alleged in the pleadings as true, accord the plaintiffthe benefit of every possible inference, and determine onlywhether the facts as alleged fit within any cognizable legaltheory. While the absence of a necessary relationshipbetween the parties may bear on the merits of the cause ofaction, the court concluded that it is more properly the sub-

ject of a CPLR 3212 motion for summary judgment, sinceit did not affect whether a cause of action has, in fact, beenstated. Whenever a court elects to treat an erroneouslylabeled motion as one for summary judgment, it must pro-vide “adequate notice” to the parties unless it appears fromthe parties’ papers that they deliberately were charting asummary judgment course by laying bare in their proof.Accordingly, the court ordered that the parties have anopportunity to make an appropriate record by the serviceand filing of additional affidavits and other supportingpapers no later than three weeks from the date of the order.

Motion for a preliminary injunction denied; preserva-tion of evidence was not the proper subject of a motion fora preliminary injunctive relief in a tort action.

In Edward M. Walsh, Jr., as Chairman of the SuffolkCounty Committee of the Conservative Party and theSuffolk County Committee of the Conservative Party v. JohnE. Frayler a/k/a Jeff Frayler, individually and as Presidentof the Suffolk County Police Benevolent Association, Inc.,the Suffolk County Police Benevolent Association, Inc.,Gerald Gilmore, individually, and as President of theSuffolk County Police Superior Officers Association,Lawrence Faraone, as Treasurer of the Suffolk CountyPolice Superior Officers Association, the Suffolk CountyPolice Superior Officers Association, Suffolk County detec-tives Association, Inc., Michael Applequist, Kevin Early,Edward Fitzgerald, Patrick J. Maloney and Timothy Morris,Index No.: 40784/09, decided on February 24, 2010, thecourt denied plaintiff’s motion for a preliminary injunctionrestraining defendants from altering, revising, erasing,deleting or otherwise destroying documents or electronicfiles within the possession, custody, and control of thedefendants relating to the contentions of the parties in thistort action without making a proper back up and from sell-ing or transferring any computers or electronic equipmentthat contained files. The court noted that the instant motionwas rendered academic by plaintiff’s service of a “FirstDemand for Inspection of Electronic Data and forPreservation of Electronically Stored Information.” Underthese circumstances, and in light of the fact that the preser-vation of evidence was not the proper subject of a motionfor a preliminary injunctive relief in a tort action, the courtdenied the motion.

Send decisions to appear in “Decisions of Interest” column toElaine M. Colavito at [email protected]. There is noguarantee that decisions received will be published. Submissionsare limited to decisions from Suffolk County trial courts. To beconsidered for inclusion in the May 2011 issue, submission mustbe received on or before April 1, 2011.

Note: Elaine Colavito is an Associate at Heidell PittoniMurphy & Bach, LLP concentrating in litigation defense.She graduated from Touro Law Center in 2007 in the top6% of her class. She can be contacted at (516)408-1600.

_________________By Dennis R. Chase

Fans seeking only the hits played theway they’ve always heard them may havebeen somewhat disappointed. ButMellencamp offered no excuses. He had amessage to deliver. These fans were prob-ably much more concerned whether theirDVR’s were recording American Idol, andwhether they’d have the rare opportunityto catch a fleeting glimpse ofMellencamp’s new flame, and media fave,Meg Ryan. For the real fans, however,understanding and enjoying Mellencamp’slast two CDs and appreciating the perfor-mance of really great music at a reallygreat venue, the show was nothing lessthan superior, spectacular, and stupendous. . . and the venue . . . PERFECT! AsMellencamp said, quoted by Rolling StoneMagazine, “you couldn’t do this kind ofshow in an arena.”

The show began, oddly enough, with thescreening of It’s About You, a documentarycentered on the recording of Mellencamp’snewest CD, No Better Than This, a musi-cal venture produced by the legendary TBone Burnett. Perhaps the screening of themovie is where the rubber met the road

and distinguished trueMellencamp fans from the rest.The movie produced and direct-ed by Kurt and Ian Markus, cap-tivated true fans, yet was merelyconversation/cocktail fodder forthose “fans” leaving one ofmusic’s finest venues, in seem-ing distress. The documentaryquite convincingly channeled thededication, enthusiasm, andcommitment for which this iconoclasticperformer strove in releasing his mostrecent CD.

Mellencamp recorded No Better ThanThis at historic locations, such as the FirstAfrican Baptist Church in Savannah,Georgia as well as at the historic SunStudios in Memphis, and the SheratonGunter Hotel in San Antonio, where bluespioneer Robert Johnson recorded bluesstaples like Sweet Home Chicago andCross Road Blues. Mellencamp recordedthe album using a 1955 Ampex portablerecording machine and only one micro-phone, requiring all the musicians to gath-er together around the mic. The album wasrecorded in mono, the same manner as theclassic folk and blues recordings of the

1930s and ‘40s. Mellencampsaid, “it’s unique for this day andage, the same mic I was singinginto is the same mic that record-ed the drums at the same time . .. and everything was cut live withno overdubs or studio nothing!These are real songs being per-formed by real musicians—anunheard-of process in today’sworld - real music, for real peo-

ple!”Even stripped down to the very basics,

Mellencamp never sounded better. “JohnMellencamp and his ensemble of six musi-cians put on an incredible show, display-ing formidable musicianship and taste,seamlessly blending new, unfamiliar songswith the unforgettable anthems from hisglory days,“ claimed blogger of When I GoDeaf - I Live For Music. Hard pressed, andreally hard pressed, could anyone moreaptly describe this formidable perfor-mance. Mellencamp was quite enjoyinghimself performing the radicallyrearranged Cherry Bomb, to the Jack andDiane performed as a country-swing song.Mellencamp describes Jack and Diane as a“sad song” that he hadn’t previously rec-ognized as such “because [he] played it inthe pop form so many times.”

If he performed nothing other than SaveSome Time To Dream (the opening trackfrom No Better Than This), a tuneMellencamp had first performed acousti-cally while touring with Bob Dylan in

2009, the true Mellencamp fans wouldhave been fully satisfied. “It’s about indi-vidual freedom and thought—and control-ling our own lives,” Mellencamp said ofthe track. John delivered so very muchmore than that inspiring message thatevening and some were grateful. The influ-ence of Burnett, however, was not lost forbut a second of the show. The music (andthe message) was clean, clear, pure andethereal.

Even perennial crowd pleasers likePaper and Fire were smokin’ up the alley-way like never before. Every song was dif-ferent in melody and spirit; in meaning andinspiration, Mellencamp’s delivered themessage exceedingly well. Now, if onlyMeg was there . . . actually, she was, wait-ing in the tour bus to share a post showglass of chocolate milk while Mellencampsmoked a few American Spirits.

Note: Dennis R. Chase is the currentSecond Vice President of the SuffolkCounty Bar Association, a frequent con-tributor of The Suffolk Lawyer, and a part-ner with The Chase Sensale Law Group,L.L.P. The firm, with offices convenientlylocated throughout the greater metropoli-tan area and Long Island, concentratestheir practice in Workers Compensation,Social Security Disability, Short/LongTerm Disability, Disability Pension Claims,Accidental Death and Dismemberment,Unemployment Insurance Benefits, andEmployer Services.


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owe you money?LET ME COLLECT THE

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CALL THE

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CorrectionSome information regarding Richard Weinblatt was missing from

his listing in the On the Move section of Among Us in the March 2011

issue of The Suffolk Lawyer. Mr. Weinblatt is council at Ruskin

Moscou & Faltischek PC but also remains a partner at Haley,

Weinblatt & Calcagni LLP in Islandia. The Suffolk Lawyer regrets the

error.

The wrong photo of Special Section Editor

Natasha Meyers ran twice in the March issue of

The Suffolk Lawyer on pages 4 and 5. The correct

photo that should have run is at left.

The Suffolk Lawyer regrets the error.

Education LawRobert E. Sapir, Chair

Three attorneys, Coleen Chin, Esq.,Nadja Allen Gill, Esq. and Felice Bowen,Esq., from the Office of Civil Rightsspoke on harassment and discriminationin a school setting. They also discussedthe procedure followed by their officeupon receipt of a complaint. Thepresentation was equally valuable formembers of the committee who representschool districts, and those who act asadvocates for parents and students.

Elder LawSteven A. Kass and Kim M. Smith, Co-Chairs

On February 16, 2011, David

Grossman, Esq., spoke to the Elder LawCommittee about Nursing HomeNegligence litigation under PublicHealth Law 2801-d. Mr. Grossmanexplained the origins of the law, thenature of claims presented, thedifferentiation between these types ofcases and medical malpractice cases, andpotential recoveries. The meeting washosted by Lynne Kleinmann, cSMM andEllen Blank, cSMM, of Accent HomeStaging & Organizing, Inc., and SAMMs(Senior Adult Move ManagementServices), who explained the benefits oftheir services for the senior population tohelp them stay in their homes safely,organize their possessions, enhance thesales price of their home and move toother residences.

News & Notes From SCBA Committees

COMMITTEE CORNER

No Better Than ThisJohn Mellencamp at Radio City

MUSIC REVIEW

Dennis R. Chase

volunteer attorneys, the availability ofongoing support for current volunteers,and lay litigants and clients’ ability tosecure capable and ready legal services.We are doing everything in our power tosecure funding for Linda’s position fromelsewhere, but money is tight everywhere,including in our budget, so I am not mytypically optimistic self on this one.

In addition, we recently received othernews that demonstrates change isinevitable - the Honorable H. Patrick Leis,III has stepped down as DistrictAdministrative Judge for Suffolk County.Justice Leis has been a friend to the barand particularly our association. AsDistrict Administrative Judge he has raisedthe level of compassion to an all-time high,as it impacts on his fellow judges, attor-neys, litigants and jurors. Although JusticeLeis will continue to apply his wisdom,skill and compassion as he returns to afulltime trial calendar, including the Model

Guardianship Part, his leadership in theSuffolk County Judiciary’s administrativeranks will be missed by many. At the sametime, I am confident that his successor, theHonorable Randall Hinrichs, will do a finejob as he assumes the position.

With all of these challenges and changesin mind, recognize that your BarAssociation remains hard at work on yourbehalf to help maneuver the landscape.Your Board of Directors is activelyengaged in addressing the tort reform leg-islation, and we are providing direction toall SCBA members with regard to how tomeaningfully assist in this effort. Pleaseread your e-blasts and your committeenotices for relevant developments andimportant meetings.

Erin Young, a Dowling College graduatefrom Greenport, has been hired as much-appreciated former SCBA staff memberMelissa McManaman’s replacement. Erinhas moved right into her role as Lawyer

Referral and Information ServiceAdministrator/Pro Bono SettlementConference Coordinator, and she is a wel-come addition to the staff. Stop in andintroduce yourself the next time you are atthe SCBA Center.

Our Working Parents Committee is upand running, which is another good exam-ple of a positive change at the SCBA.Under the leadership of Stacy Posillico,the committee is being formed and meet-ings are taking place to bring together like-minded colleagues for the purpose ofaddressing issues pertaining to being apracticing lawyer and a parent, and tryingto do both well at the same time. SeeStacy’s article on page 6 for more detailsand upcoming dates on interest.

And last, but by no means least, the JonGordon event, which needed to be re-scheduled due to one of the many snow-storms that are now behind us, is set forTuesday, April 5th. In case you somehowmissed the announcement, Mr. Gordon is aconsultant, motivational speaker and inter-national bestselling author, most notably

of The Shark and the Goldfish: PositiveWays to Thrive During Waves of Change,The Energy Bus: 10 Rules to Fuel YourLife, Work and Team with Positive Energyand Soup: A Recipe to Nourish Your Teamand Culture.

Through very generous sponsorship,most notably of long time SCBA-support-er U.S. Trust Bank of America PrivateWealth Management, together withEnright Court Reporting and MadisonPark Consultants, Mr. Gordon will be shar-ing his positive and potentially life-alter-ing perspective at a time when many of uscan likely use it. The event is free to mem-bers, but space is limited so you mustRSVP, and do it quickly, or you may notget in.

So, as the rains come and go, and flow-ers start to grow, stop asking what yourSCBA is doing for you and recognize allthe ways the SCBA is helping you throughthe changes and challenges in the practiceof law and beyond. Then ask yourself:what are you doing to be a part of it all andget nvolved. Happy spring!


incur penalties for preparing a tax returnthat fails to disclose a client’s offshoreaccount/activity that they knew or shouldhave known about.

The 2011 OVDI contains a firmer dead-line than the 2009 program. Under thisnew initiative, taxpayers must do far morethan just submit an initial statement ofintent to disclose their activity at a latertime. They must provide corrected taxreturns and remit tax, interest and penaltiesowed by August 31, 2011. A difficult dead-line to meet when considering offshorebank takes weeks or months to provideback-year bank statements. A questionremaining is whether a mad rush willoccur, followed by an ambush of amendedtax returns for statements which arrivedafter the deadline.

The framework for the OVDI was creat-ed with cognizance that it was also theIRS’s second chance at the plate. The accu-racy-related penalty on unreported incomeremains. However, in fairness to those whohad already complied with the deadline forthe 2009 program, the penalty on the high-est asset balance was increased to 25%(from 20% in 2009). But it’s not all bad.Relief was provided for some taxpayers. Areduced 12.5% penalty was created foraccount balances under $75,000 and the 5%penalty bargain still remains for those withdormant accounts which meet certainrequirements. The IRS has even recognizedthat it would be unfair for deminimis trans-actions (less than $1,000 with certain con-ditions) to prevent taxpayers from qualify-

ing for the reduced 5% rate. Formerly,instances of a single small ATM withdraw-al had disqualified taxpayer’s from obtain-ing the reduced rate benefits. Relief wasalso provided for Passive ForeignInvestment Companies (“PFIC’s”). Underthe 2011 initiative, the IRS addressed thelack of cost basis information for PFIC’swith an opportunity to instead calculate itsgains or losses using Mark-to-Marketmethodologies.

An aspect of uncertainty with the 2009program was whether individuals or entitieseven had the obligation to report an offshorebank account at all. The Federal signatoryauthority and financial interest provisionswere not clearly defined. Unfortunately, thegovernment had deferred setting forth thefinal criteria until long after the initial dis-closure program had expired.2 Taxpayer’sscreaming for clarity asserted that not allbeneficial interests carried access to or con-trol over the underlying funds. Finally, thenew provisions recently set forth by theFinCEN “more clearly delineate both thescope of individuals and entities that wouldbe required to file the FBAR and the typesof accounts for which such reports shouldbe made”.3

It should be noted that although the dis-closure initiatives certainly mitigate tax-payer criminal exposure, the predesignatedrate structure may not prove a bargain forsome clients who clearly lacked intent andwillfulness for the failure-to-file theFBAR.4 FAQ35, set forth by the IRS toexplain the 2009 program specifically pro-

vided that “under no circumstances will ataxpayer be required to pay a penaltygreater than what he would otherwise beliable under existing statutes.” In otherwords, a comparison was to be conductedbetween the application of the disclosurepenalty regime and the penalties otherwisenormally applied. The taxpayer was onlysupposed to be responsible for the lesser ofthe two. But the IRS became inundatedwith disclosure applications. They wereshort staffed, and unfortunately, agents towhom these case matters had ultimatelybeen directed insisted upon comparisonwith higher “intentional” tax penalties(even when intent was not demonstrated) inlieu of the traditional civil penaltiesimposed under statute. The result is thattaxpayer’s were oftentimes locked into theOVDP penalty regime structure. Going for-ward under the OVDI, it will be interestingto see if the redistribution of these cases tocentral processing centers coupled with theaddition of more IRS auditors will enablethis comparison to be viewed as intended.

The world is shrinking. Even small busi-nesses now operate globally. And to pro-tect its revenue stream, the IRS was forcedto expand its reach into financial institu-tions worldwide. The IRS investigationsstarted with Swiss banks but have sincebroadened their probes to include Israeliand Asian banks as well. And in my opin-ion, the program will continue to expand. Iuse my trusty standard of measurement todetermine the IRS’s future direction withits enforcement efforts. I read the descrip-

tions of their job postings. One quickglimpse and you’ll find that the vast major-ity of positions sought to be filled are notfor Lawyers, Accountants or TaxExaminers, but rather, for ComputerScientists and Computer Engineers. Thisincreases the likelihood that electronicbanking activity will continue to be inves-tigated and that the global hunt for taxdodgers will remain a hot button source ofenforcement activity in the future.

Note: Eric L. Morgenthal, Esq., CPA,M.S. (Taxation) maintains his Tax Lawpractice in Melville specializing in Federaland New York State Tax ControversyMatters. He formerly served as Chair ofthe Suffolk County Bar AssociationTaxation Law Committee, is a member ofthe Nassau County Bar Association TaxLaw Committee, New York State BarAssociation Tax Section and the AmericanInstitute of Certified Public Accountants.Comments can be directed to his firm [email protected].

1 “Persons” includes Individuals, Trusts, Estates,Partnerships, Corporations, PFIC’s, CFC’s andother entity forms.

2 IRS Notice 2009-62 extended the FBAR filing fortax years 2008 and prior to June 30, 2010; howev-er, it did not clarify the filing requirement in timefor the October 2009 initial voluntary disclosurefiling deadline.

3 See 31 U.S.C. 5314 and the regulations at 31 CFR103.24, 103.27, 103.32

4 Nonetheless, IRS Circular 230 sets forth addition-al requirements for Offshore Disclosures, i.e. noti-fication in writing to the client of the costs andrisks for the failure to comply.

2011 Offshore Voluntary Disclosure Initiative (Continued from page 1)

These Times They Are a Changin’(Continued from page 1)

cooperation and support from both of ourAssociations, we can create a more equal,balanced and better playing field to pro-mote the fair and equal administration ofjustice.

Note: Kim M. Smith, is solo practitionerin Islandia where she practices in the areasof Elder Law, Trust & Estates,Guardianship, Medicaid and Special needs

planning. Ms. Smith is currently servingher second year of a two year term as Co-Chair of the Suffolk County BarAssociation’s Elder Law and EstatePlanning Committee and is a frequent lec-turer at the bar association. Kim M. Smithis also serving as the current Vice Presidentof Programs for the Suffolk CountyWomen’s Bar Association and has beennominated President for the 2011 term.

by the NYSBA Committee on the TortSystem can be accessed on the NYSBAwebsite. I urge anyone who agrees thatthese proposals constitute a denial ofaccess to justice to contact your state sen-ator and assemblyman and urge them tovote against the bill.

A bill based on the Governor‘s task

force report has already been drafted andwill be introduced shortly.

Note: Craig Purcell, a past SCBAPresident and NYSBA Vice President andMember of the Executive Committee, ispresently Co-Chair of the NYSBA’sCommittee on the Tort System.

Creating a More Equal, Balanced and Better PlayingField for Women (Continued from page 5)

Governor’s Proposed Cap to MedicalMalpractice Awards Opposed(Continued from page 5)


James Zadroga 9/11 Health & Compensation Act of 2010 (Continued from page 3)

would suggest that area residents andnearby workers are eligible claimantsunder the reopened VCF.

Within two weeks of the signing of the ofZadroga Act, however, Senator KirstenGillibrand’s staff announced that lowerManhattan residents and workers were notcovered by the fund, only to be contradictedby Rep. Jerrold Nadler (a co-author of theZadroga Act) the next day, declaring thatsuch area residents/workers were in fact cov-ered. Resolution of this issue will need to bedecided by the Special Master and the newrules implemented under the Zadroga Act.

The Zadroga Act places sharp limita-tions on attorneys’ fees. The Zadroga Actamended the original VictimCompensation Fund law to place a “cap onattorneys’ fees of no more than ten per-cent” of an award made on a claim. Theten percent attorneys’ fee cap is further

limited by fees previously received byattorneys representing VCF claimants whowere also part of any settled civil action,including the recently settled litigation inthe Southern District of New York. TheZadroga Act also prohibits an attorneyfrom charging a legal fee in the case of anindividual who was charged a legal fee inconnection with the settlement of a priorcivil action, except if the legal fee chargedin connection with the settlement of a civilaction is less than 10 percent of the aggre-gate amount awarded by a subsequentVictim Compensation Fund.

Bottom Line - attorneys who repre-sented the over 10,000 September 11th

responders in the recently settled actionsagainst New York City cannot “doubledip.” If their fees in the NYC litigationwere higher than the 10 percent attorneyfee cap in the Zadroga Act, they cannot

charge any fee for the Zadroga VCFclaim. New attorneys who represent theclaimant solely in the Zadroga VCFclaim are also limited by the 10 percentaggregate cap, which may dissuade someattorneys from taking claims whereclaimants previously paid attorneys a 25percent fee under the NYC settlements.In some cases, the result might be thatthe attorney fee on the Zadroga VictimCompensation Fund claim could be sig-nificantly less that 10 percent, and couldbe offset completely.

The passage and enactment of theJames Zadroga 9/11 Health andCompensation Act of 2010 was a hugevictory for 9/11 first responders andsurvivors. Most importantly, it providesmuch needed medical monitoring andtreatment to thousands of individualswho are now sick as a result of the 9/11attacks and its aftermath. We are allaware now of the “toxic soup” thatenveloped the area surrounding GroundZero.

The Zadroga 9/11 Act also provides asecond chance for many individuals, whowere either ineligible or became sick afterthe closure of the original VictimCompensation Fund, to apply for a mone-

tary award for their damages. As ofFebruary 11, 2011, President Obama hasnot selected the new Special Master of theFund.

The original Special Master of the VCFwas Kenneth Feinberg, who is now admin-istering claims related to the BP Gulf oilspill. Mr. Feinberg has offered to act asSpecial Master in the reopened VCF on apro bono basis. The Special Master mustissue new regulations on fund procedureswithin 180 days of enactment of theZadroga 9/11 Act. Once these regulationsare issued, attorneys will be in a much bet-ter position to counsel our clients on theirrights and potential benefits under the newZadroga Act.

Note: Troy G. Rosasco is a SeniorPartner at Turley, Redmond, Rosasco &Rosasco, LLP with offices in Nassau,Suffolk and Queens. He has been repre-senting 9/11 victims and first responderssince soon after the September 11th

attacks. Daniel J. Hansen is a personalinjury trial attorney with his own prac-tice and offices in the WoolworthBuilding in Manhattan. They are jointlyhandling 9/11 Victim CompensationFund claims.

law. It does not necessarily make that per-spective right or wrong, but it does allowfor a unique understanding.

This March marks my one-year anniver-sary of admission to the New York Bar. Asa newly admitted attorney and a woman ofcolor it is my opinion that, on the surface,Suffolk County Courts leave a lot to bedesired as far as diversity is concerned.According to the U.S. Census Bureau,minorities are approximately 26 percent ofthe population of Suffolk County and thatnumber is definitely not represented with-in the ranks of practicing attorneys in theSuffolk County Court system. Contrary tothis imbalance, it has been my experiencethat the need to have a representation of adiverse group of attorneys is very muchrecognized in Suffolk County. However,the reality of learning how to recruit andretain attorneys of a diverse cultural back-ground is an ongoing query within theSuffolk County legal community.

I have found that the old religious adage– “seek and ye shall find; ask and ye shallreceive,” can be part of the solution. I havetaken advantage of that adage and havebeen met with nothing but an open doorand helping hands. As a result of an econ-omy that is not hiring attorneys, or, moreaccurately, not hiring attorneys with littleor no experience, last year I enrolled inTouro Law School to attain a LL.M. afterjust passing the bar. However, I quicklyrealized that another degree was not whatI wanted; I wanted to practice law. To mygood fortune, I began work as “OfCounsel” for an African-American attor-ney who gave me an opportunity to prac-tice law when no other firm would. Heintroduced me to the ins and outs of thecourt system and I received a “baptism byfire,” if you will, about practicing law inSuffolk County.

In addition, to working “Of Counsel,” Ibegan my quest to explore my interest infamily law. I became a member of theSuffolk County Bar Association and theAmistad Long Island Black BarAssociation. Through these associations, Ihave been introduced to many attorneysand judges who have extended numerouscourtesies and advice. For example, dur-ing a family law CLE at the SCBA, ajudge shared a moving story about a casethat came before him and the positivetransformation of an abused child’s life;

his passion sealed my interest in familylaw and I knew that it would be the basisof my practice. I introduced myself to thatjudge and shared my interest in familylaw. Since then, he has guided and intro-duced me to other lawyers who haveserved as mentors.

Despite, the lack of apparent diversity inSuffolk County, I have found that many ofmy colleagues have been more than willingto guide and mentor me. Moreover, I havehad judges and court referees pull me asideand offer words of wisdom, opposingcounsel have always been accommodating,and the attorneys whom I see on a dailybasis have provided me with a plethora ofinformation that provides assistance in therepresentation of my clients.

Notwithstanding all of the opportunitiesI have been able to experience or create formyself, there still has to be an active effortby all to improve the employment ofminorities. As employers seek to hiremore minorities, we must position our-selves to take advantage of opportunitiesas they present themselves. Seekingemployment opportunities in today’seconomy must not be calculated like achess move; one cannot await a potentialemployer’s next move in an effort tocounter it. We must take note from theones who broke barriers before us andmake our presence known in order to fos-ter diversity in the law.

Ideally, I would like to see a multicul-tural representation of the masses ofminorities that are exposed to the SuffolkCounty Court system, but there is a longway to go. As W.E.B. Dubois so eloquent-ly stated - “Herein lies the tragedy of theage; not that men are poor-all men knowsomething of poverty, not that men arewicked-who is good? Not that men areignorant-what is truth? Nay, but that menknow so little of men.”

Note: Andrea Amoa was born inLondon, England and moved to theUnited States when she was 10 years old.She is currently on the 18b panel for fam-ily law and serving as “Of Counsel” totwo law firms. Additionally, she is the co-founder of ReCycle for Education, a501(C)(3)not-for-profit organization thatrecycles 5-cent bottles and cans using theproceeds to fund scholarships for CentralIslip students.

Saying Checkmate in a Tough Economy (Continued from page 5)

Bohemia, NY 11716. Her contact infor-mation is: telephone: 631-676-9300; fax:631-588-0276 and email: [email protected].

SCBA member Joanne S. Agruso ispleased to announce her new office loca-tion: 150 Motor Parkway, Suite 401,Hauppauge, NY 11788 (631) 787-8522;fax (631) 361-7815.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Elaine Barraga, ChristopherA. Bianco, Erin M. Conway, Cara P.Cronin, Eric Dubinsky, Nilli Farzan,Kevin Griffiths, Matthew Hereth,Kathleen Herr-Evers, Alexander Lopez,Kathleen M. Mahoney, MaryAnn Marino,Edward Monaghan, Sean O’Toole,Christopher D. Palmieri, D. David Parr,Steven A. Pilewski, Kimberly C. Preston,Donny Secas, Leland S. Solon,William F. Treuber and BernadetteTuthill.

The SCBA also welcomes its neweststudent members and wishes them suc-cess in their progress towards a careerin the law: Alexandra T. Busa, DouglasMoliterno, John Rienzo,

On the Move –Looking to Move

This month we feature two employ-ment opportunities and three membersseeking employment. If you have aninterest in the postings, please contactTina at the SCBA by calling (631) 234-5511 ext. 222 and refer to the referencenumber following the listing.

Firms OfferingEmployment

General practitioner, with Patchoguelaw office, seeking full-time attorney.

Reference Law #1.

Attorney with active matrimonial prac-tice in Hauppauge seeking full-time attor-ney. Reference Law #2.

Members SeekingEmployment

Attorney seeking full-time employment.Practicing since 1984 in areas of generalcivil litigation. Admitted to the New Yorkand Texas State Bars, as well as the UnitedStates District Courts for the Eastern andSouthern Districts of New York.

Reference Att. #10

I am a charismatic, highly motivated andnewly admitted attorney seeking a part tofull time associate position in a respectablelaw firm. I am interested and open toemploying all facets and specialties in thelaw. I have a diversified history and strongbackground in different types of law earnedwhile working at the Manhattan DistrictAttorney’s Office, interning at the AttorneyGeneral’s Office, graduating law school,serving as President on a cooperativeboard, starting an entrepreneurial businessand passing the New York State Bar Exam.I am results orientated and look forward tomeeting with you to provide further infor-mation.

Reference Att #25

Experienced trial attorney now accept-ing small claims per diem in the Fourthand Fifth District Courts.

Reference Att#36

Among Us (Continued from page 7)

Keep on the alert for additional career opportunity listings on the SCBA Websiteand each month in The Suffolk Lawyer.


SUFFOLK ACADEMY OF LAW5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

The Suffolk Academy of Law, the educational arm of the Suffolk CountyBar Association, provides a comprehensive curriculum of continuing legaleducation courses. Listings include some of the updates, series, andseminars to be held this spring. Watch for additional program details andannouncements.

REAL TIME WEBCASTS: Many programs are available as both in-person seminars and as real-time webcasts. To determine if a pro-gram will be webcast, please check the SCBA website (www.scba.org– Internet CLE).

ACCREDITATION FOR MCLE:The Suffolk Academy of Law has been certified by the New York StateContinuing Legal Education Board as an accredited provider of continuinglegal education in the State of New York. Thus, Academy courses arepresumptively approved as meeting the OCA’s MCLE requirements.

NOTES:

Program Locations: Most, but not all, programs are held at the SCBACenter; be sure to check listings for locations and times.

Tuition & Registration: Tuition prices listed in the registration form arefor discounted pre-registration. At-door registrations entail higherfees. You may pre-register for classes by returning the registrationcoupon with your payment.

Refunds: Refund requests must be received 48 hours in advance.

Non SCBA Member Attorneys: Tuition prices are discounted for SCBAmembers. If you attend a course at non-member rates and join theSuffolk County Bar Association within 30 days, you may apply the tuitiondifferential you paid to your SCBA membership dues.

Americans with Disabilities Act: If you plan to attend a program andneed assistance related to a disability 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 thispublicity information.

Tax-Deductible Support for CLE: Tuition does not fully support theAcademy’s educational program. As a 501©)(3) organization, theAcademy can accept your tax deductible donation. Please take amoment, when registering, to add a contribution to your tuition payment.

Financial Aid: For information on needs-based scholarships, paymentplans, or volunteer service in lieu of tuition, please call the Academy at631-233-5588.

INQUIRIES: 631-234-5588.

EARLY SPRING CLE

SPRING UPDATESEVIDENCE UPDATE

Date TBAA year’s worth of developments in state and federal, civil andcriminal, issues. Presenter: Professor Richard Farrell (Brooklyn Law School //Author–Richardson on Evidence)Time: 6:00– 8:30 p.m. (Sign-in from 5:30 p.m.) Location: Nassau County Bar Association (Mineola)Refreshments: Light supperMCLE: 2 ½ Hours (professional practice) [Non-Transitional and Transitional]

AUTO LIABILITY UPDATEMonday, May 23, 2011

A must-attend for negligence lawyers!Presenter: Professor Michael Hutter (Albany Law School);Jonathan Dachs, Esq. (Shayne, Dachs, Stanisci, Corker &Sauer)Coordinator: James K. Hogan, Esq. (Academy AdvisoryCommittee)Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

BANKRUPTCY LAW UPDATEThursday, June 23, 2011

All the new developments summed up and interpreted!Presenter: Panel TBACoordinator: Richard L. Stern, Esq. (Academy Dean)Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

SERIESTRUSTS A TO Z

One lunchtime program each month through June (Live & Webcast)Past sessions are available as on-line video replays and mayalso be purchased as DVDs or audio CDs. Each Program:Time: 12:30–2:15 p.m. (Sign-in from noon.)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice)[Non-Transitional and Transitional]Series Coordinator: Ralph Randazzo (Randazzo & Randazzo,LLP – Huntington)DYNASTY TRUSTS..................................Tuesday, April 5, 2011Presenter: Paul McGloin (Deutsche Bank Private Wealth Management)CHARITABLE TRUSTS.....................Wednesday, May 10, 2011 (Note new date.)Presenters: Richard Chalifoux, Esq. & Raymond Radigan(U.S. Trust/Bank of American)LIFETIME TRUSTS FOR MINORS .........Tuesday, June 7, 2011

(postponed from Jan. 11)Presenter: Ralph Randazzo (Randazzo & Randazzo, LLP – Huntington)

SEMINARSPERSUASIVE WRITING

Thursday, March 31, 2011 (Live & Webcast)Esteemed guest presenter will show practitioners at all experi-ence levels how persuasive writing can make a significant differ-ence in a court case. Topics include story telling; style; rhetoric;ethics; legal methods; and how to make every word count.Presenters: Hon. Gerald Lebovits (Author of “The LegalWriter,” NYSBA Journal; NYC Civil Court Judge)Coordinator: Diane Farrell, Esq. (Academy Officer)Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (2.5 skills; 0.5 ethics)[Non-Transitional and Transitional]Appreciation for Underwriting Support: Echo AppellatePress, Inc. (Stu Davis, President)

RESCHEDULEDPresented in Conjunction with SEPA Mujer & the SCBA Immigration Law Committee

IMMIGRATION OPTIONS FOR SUR-VIVORS OF DOMESTIC VIOLENCE &

OTHER CRIMESThursday, April 7, 2011

This training program is intended to fill a need on Long Islandfor legal services for battered immigrant women on Long Island.The program will cover immigration law basics, an overview ofthe family visa process and other key topics. No tuition will becharged those willing to take a case on a pro bono basis.Presenters: Jessica Glynn, Esq. (SEPA Mujer); AlizabethNewman, Esq. (SEPA Mujer); SEPA Mujer Volunteers. Moderator: Eric Horn, Esq. (Chair–SCBA Immigration LawCommittee)Time: 6:00– 8:30 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 2.5 Hours (professional practice) [Non-Transitional and Transitional]

Presented in Conjunction with the SCBA Health & Hospital Law Committee

PALLIATIVE CARE: Legal, Clinical, & Ethics Issues

Wednesday, April 13, 2011This program developed by the SCBA Health & HospitalCommittee will explore issues related to palliative care andassisting clients in end-of life-planning. Treatment of the relevantlaws and regulations will be complemented by discussion ofclinical matters and the medical and legal ethics issues thatcome into play. Presenters: James Fouassier, Esq. (Stony Brook UniversityHospital); Denise Snow, Esq. (Nassau Suffolk Law Services);William J. McDonald, Esq. (Ruskin, Moscou, Faltischek, PC);Dr. Lynn Hallarman; others TBAModerator: William J. McDonald, Esq. (Co-Chair–SCBAHealth & Hospital Law Committee // Academy Officer-Elect)Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (2 professional practice; 1 Ethics) [Non-Transitional and Transitional]

APRIL LUNCH ‘N LEARNS AT THE 400 CARLETON AVENUE COURTHOUSE

I SUPERSEDING INFORMATIONSThursday, April 14, 2011

This succinct program will comprise a review of a recentAppellate Term case and discussion of ramifications for criminaldefense. For your convenience, a boxed lunch will be availablebefore the start of the program.Presenters: TBAModerator/Coordinator: Harry Tilis, Esq. (Tilis LawGroup–Bohemia // Academy Officer-Elect)Time: 12:30–1:50 p.m. Location: Courthouse at 400 CarletonAvenue (tentatively in the Central Jury Room) Refreshments: Boxed Lunches MCLE: 1 Hour(professional practice) [Non-Transitional and Transitional]

II ORDERS OF PROTECTION IN CRIMINAL COURTWednesday, April 27, 2011

Instruction will focus on both recurrent themes and new con-cepts in this area of law. Topics will include, among other things,threat cases (People v. Dietz; People v. Phelan); harassmentcases (Julie G. V. Yu-Jen G.); and new law regarding delays inseeking court intervention. A panel of judges, attorney referees,and experienced practitioners will be assembled. Boxed luncheswill be available before the start of the program.Moderator/Coordinator: Harry Tilis, Esq.(Tilis Law Group–Bohemia // Academy Officer-Elect)Time: 12:30–2:15 p.m. Location: Courthouse at 400 CarletonAvenue (tentatively in the Central Jury Room)Refreshments: Boxed Lunches MCLE: 1.5 Hours(professional practice) [Non-Transitional and Transitional]

Lunch ‘n LearnOCCUPATIONAL & ENVIRONMENTAL

MEDICINE: Legal IssuesThursday, April 28, 2011

This program for Workers’ Compensation and other interestedattorneys has been developed in conjunction with the LongIsland Occupational Environmental Health Center (LIOEHC). Itis subsidized through a LIOEHC grant and is, thus, offered toattendees at an extremely low tuition cost. Don’t miss thisopportunity to gain insights into an important field.Presenters: Victor Fusco, Esq. (Fusco, Brandenstein &Rada–Woodbury) Craig J. Tortora, Esq. (Commack)Time: 11:45 a.m.–1:15 p.m. (Sign-in from 11:45; program atNoon) Location: SCBA Center – HauppaugeRefreshments: Lunch from 11:45 a.m.MCLE: 1 Hour professional practice)[Non-Transitional and Transitional]

Morning at Surrogate’s CourtPROBATE & ADMINISTRATION

Friday, April 29, 2011Surrogate John M. Czygier, Jr., and representatives of theSurrogate’s Court Law Department will take you through thetechnical steps of probate-administration and discuss how andwhy problems sometimes arise. You will learn how to deal withcreditors, claims against the estate, trusts, distribution of assets,real property, taxes, potential or actual contests, and muchmore. If you handle wills and estates, you will want to attend. Moderator/Coordinator: Scott P. McBride, Esq. (Surrogate’sCourt Law Department // Academy Advisory Committee)Time: 9:30 a.m.—12:30 p.m. (Sign-in from 9 a.m.)Location: Surrogate’s Court in Riverhead

O F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

N.B. - As per NYS CLE Board regulation, you must attend a CLE pro-gram or a specific section of a longer program in its entirety toreceive credit.


SUFFOLK ACADEMY OF LAWO F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

Refreshments: Donuts during sign-inMCLE: 3 Hours (1.5 professional practice; 1.5 skills) [Non-Transitional and Transitional

Morning at Touro Law CenterALTERNATIVE WORK SCHEDULES

Friday, April 29, 2011Alternative workplace practices – telecommuting, job sharing,flex-time schedules, part-time and compressed schedules – areincreasingly popular in the legal profession. The experiencedfaculty assembled for this program will address how to success-fully negotiate and implement such employment arrangementsand avoid potential risks.Presenters: Sheryl L. Randazzo, Esq. (Randazzo & Randazzo,LLP; SCBA President); Dennis Chase, Esq. (The ChaseSensale Law Group, LLP // SCBA Vice President); MarianRose Tinari, Esq. (District Administrative Judge’s Office);Karen D. McGuire and Patricia Condon (McGuire, Condon,P.C.); Professor Michael C. Schmidt (Touro Law Center)Closing Remarks: Dean Lawrence Raful (Touro Law Center)Program Coordinator: Stacy F. Posillico, Esq. (Chair: SCBALawyers & Parenting Committee) Time: 9:00 a.m. – 12 noon (Sign-in from 8:30 a.m.)Location: Touro Law Center–Central IslipRefreshments: Continental Breakfast MCLE: 3 Hours (2.5 professional practice; 0.5 ethics) [Non-Transitional and Transitional

Presented in Conjunction with the SCBA Appellate Practice Committee

PRACTICE IN THE APPELLATE DIVI-SION: Soup-to-Nuts Guidelines

Wednesday, May 4, 2011An illustrious faculty will shed light on how to bring an appeal inthe Appellate Division of the Second Judicial Department. Youwill gain both new insights and a plethora of practical informa-tion.

Agenda & FacultyGeneral Appeal Issues (what to do, how to file)Harris J. Zakarin, Esq. (Rivkin Radler, LLP)Procedures at the Court (Second Dept. Rules; recent changes)Matthew G. Kiernan, Esq. (Clerk of the Court)A View from the Bench (brief writing, oral argument)Hon. Sandra L. Sgroi (Justice–Appellate Division, Second Dept.)Moderator/Coordinator: Glenn P. Warmuth, Esq. (Co-Chair–SCBA Appellate Practice Committee // Academy Officer-Elect)Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (1.5 professional practice; 1.5 Skills)[Non-Transitional and Transitional]

FORECLOSURE LAW & PROCEDURE:Soup to Nuts

Friday, May 13, 2011 – Full Day ProgramSuffolk County ranks first in New York State foreclosure rates! –This comprehensive program, developed in response torequests from Academy constituents, will feature bank anddefense attorneys, representatives of the bench, a settlementconference referee, and court administrators. The program willtake you through all the steps of threatened and actual foreclo-sures. Presenters will review developments in the law, highlightpotential problems and pitfalls, and provide guidance for doingthe best possible for those you represent. Topics include:• How the dangers of a pending foreclosure are flagged• How the bank starts the process (lis pendens, etc.)• How service and notice are made• How the recent Settlement Conference Statute

changed how foreclosure is processed• Potential settlement outcomes• The role of bankruptcy proceedings• What happens if settlement fails• The actual foreclosure prosecution and defenses• Kinds of litigation outcomes• New attorneys’ fees legislationProgram Chair: Barry M. Smolowitz, Esq. (Former SCBA

President // Pro Bono Foreclosure Settlement ProjectCoordinator)Planning Committee: Cheryl M. Mintz, Esq.; Joseph Rosenthal,Esq.; Eric Sackstein, Esq.; Brian Duggan. Esq.; Stephen Beyer; Time: 9:00 a.m. – 4 p.m. (Sign-in from 8:30 a.m.)Location: SCBA Law Center Refreshments: ContinentalBreakfast; Lunch BuffetMCLE: 6 Hours (4 professional practice;1 skills; 1 ethics)[Non-Transitional and Transitional

ALSO THIS SPRINGDETAILS TBA

NEGOTIATING(May 11 - Evening)COURT ACCOUNTINGS(May 18 – Evening)DANGEROUS DOG CASES(May 19 – Evening)FINDING ASSETS (Matrimonial to Stolen Art)(May 24 – Evening)ANNUAL ANIMAL LAW SEMINAR(May 25 – Evening)IMMIGRATION LAW FOR CRIMINAL LAWYERS(May 26 – Evening)COMPREHENSIVE INSURANCE SEMINAR(Date TBA)PRACTICING IN SUFFOLK’S COMMERCIAL PART(June 2 – Evening)ESTATE & RETIREMENT DISTRIBUTION PLANNING(June 14 – Morning)FAMILY COURT PRACTICE: Custody & Visitation(June 14 – Evening)NEW DOMESTIC WORKERS LAW & RAMIFICATIONS(June 16; Time TBA)NEW IRS INITIATIVE ON INTERNATIONAL DISCLOSUREBY FOREIGN BANK ACCOUNT HOLDERS(Lunch–Date TBA)CONTINUING CARE RETIREMENT COMMUNITIES (Date TBA)


REPRINTED FROM THE NEWYORK STATE BAR JOURNAL (“THELEGAL WRITER”)_________________By Gerald Lebovits

Writing a really bad brief — a brief sobad you’re sure to lose your case — is askill few attorneys acquire. Only a selectfew can do that more than once or twice ina lifetime.

You might wonder why you’d ever wantto lose a case. Perhaps you hate yourclient. Let’s face it: Some clients are scamartists, especially those who don’t pay you.Perhaps you hate your client’s case. On anethical level, the world will be better off,frankly, if some of your clients lose. Orperhaps you like your client, but you real-ize that your client will lose sooner orlater. You might want to throw yourclient’s case before your legal fees growtoo high. Or perhaps you’re in league withyour adversary. The job market is tough,after all; maybe you’re trying to get a jobat your adversary’s law firm. Or perhapsyou want to ingratiate yourself with ajudge who’ll probably rule against yourclient anyway. Lawyers need to thinkabout their next case, don’t they? Or per-haps you’ve learned that your client hasshallow pockets, and you need to cut yourlosses and move on before your firmdownsizes you. That can happen a lot thesedays.

The reasons you might want to lose aremany, and writing a bad brief is a key tolosing. For those lawyers who want to lose— and lose big — this column’s for you.i

Rule #1: Ugly’s in the Eye of theBeholder.

Stimulate readers visually. Make sureyou have a bad cover. Because firstimpressions count when it comes to briefs,judges will notice a bad cover. They’llassume that if you don’t care about pre-sentation, you probably won’t care aboutgetting the law right. Include a border,preferably with a seasonal motif. Flowersand snowflakes add a great touch. If thecourt has specific requirements about howthe cover should look, ignore those rules.Judges have little sense of style anyway.

Then reverse the caption. If, at the triallevel, the People of the State of New Yorkhad prosecuted the defendant, make it lookon appeal as if the defendant-appellant issuing the People. If you include a caption,use a typeface like Old English Text or anyother font that looks like hieroglyphics.Omit your firm’s name and your name ifyou want to disassociate yourself fromyour loser client.

It’ll be easier for your client to go downin defeat if you leave little white space ona page. The white space is the space in themargins and between words, sentences,and paragraphs. The more words you puton a page, the greater your chances of los-ing. Judges will know right away that

they’re reading a losing brief. No need formargins. Margins were created for legal-writing teachers to critique your work inlaw school. Judges, too, need marginsbecause their eyesight has dimmed overthe years, so don’t give them any. Yourgoal is to make sure the judge won’t readyour brief.

The more typefaces in your brief, themore you’ll distract the judge from findingany good arguments your client mighthave. You’re closer to losing than youthink if your brief looks like a ransomnote. Challenge yourself to write eachparagraph in a different typeface. If youreally want to signal that you and yourbrief are losers, write each sentence in adifferent typeface: one in Times NewRoman, another in Courier, and a third inGaramond. When neon lights fail, bold,underline, and italicize, preferably all atonce, and all in quotation marks. How elseare you going to emphasize your lack offorthcoming content, show sarcasm, andprove your paranoia? Then uppercase asmany words as you can. Capitalizingexcessively makes your writing memo-rable, albeit unreadable.

Black ink signals professionalism. Don’tuse it, unless you want to win. Make yourbrief ugly by using baby pink or sky blueink. The judge will notice the cute femi-nine or masculine charm.

If you want to irritate a judge, don’tinclude page numbers at the bottom ofeach page. Judges should know how tocount.

Include lots of footnotes, all in a smalltypeface. That’ll cause the judge to dwellon the irrelevant red herrings in your case.Burying substantive arguments in foot-notes is how you’ll get judges and theirlaw clerks to make law, even if the lawthey’ll make favors your adversary. Greatlaw started in the footnotes. Ask anySupreme Court clerk.

To lose, don’t bind your brief. If youmust bind it, use a rubber band or string.That’ll help the judges lose some or all thepages. Or bind the brief with a metal clipwith razor-sharp edges. You spilled bloodwriting the brief. Why shouldn’t the judgeand law clerk? They’ll reward yourthoughtlessness when they write theirdecision. If you decide to bind your brief,make sure the binding prevents the judgefrom reading the brief. Every time thejudge turns the page, the brief should snapshut. When submitting the brief, include apaperweight to hold the brief open. Thejudge might think it’s an exhibit.

Non-gender-neutral writing is like abump on the road that focuses travelers onthe trip rather than the destination. Makethe judge dwell not on your content but onwhy you used “he” or “she.” If you’re notsure whether to use “she,” “he,” or “it,” useall three, like so: “s/he/it.” There’s nothinglike a few “s/he/its” to make your brieflook exactly like that.

Boilerplate doesn’t work, and that’s whyyou should use it. Your brief should looklike a cut-and-paste job. Reuse large por-tions of your brief from another briefyou’ve written. Another tactic is to regur-gitate a brief an intern wrote 10 years ago,and neither update nor check the old cita-tions. Go green: Recycle your arguments.Diligent judges know that clients and casesare unique. You need to disabuse them ofthe notion that your client’s case is unique.

Get an intern to photocopy your brief.Make sure the text on the photocopies iscrooked and distorted. Have the internphotocopy half of each page. You’ll leavethe judge wondering what’s missing.

Rule #2: Maintain Order WithDisorder.

Winners pick and choose their issuesand arrange them in order of strength.Loser wannabes include as many issues asthey can think of and arrange them inalphabetical order. Like a law schoolexam, a brief is all about issue spotting,no? Besides, if you don’t include all theatmospherics, you won’t preserve issuesfor your appeal. Having many issuesmeans you’ve thought about your case indepth. Put substantive issues first. Leavedispositive issues for the end. Save juris-dictional issues for the last page. Doing sowill catch the judge’s attention. Not.

Don’t organize your arguments. Let thejudge figure out what’s important. That’snot your job. If you’re dealing with a con-scientious judge, raise facts and issues notin the record.

When it comes to standards of review,who needs standards? Don’t tell the judgewhat standard to use. Judges know whatstandards apply. If they don’t, so much thebetter. If someone at your firm forces youto discuss legal standards, mix them up.Judges appreciate an enlightened discus-sion about why they have the discretion inthe interests of justice to disregard a con-stitutional statute whose plain language isnot subject to reasonable debate.

A brief is mystery writing in disguise.Leave the main point for the last line of thelast page. You want to stun the judge.

Divert the judge’s attention from realarguments and focus instead on bogusones. Instead of making legal arguments,make only policy arguments, regardless ofany binding authority that rejects the poli-cy you suggest. Or avoid policy argumentsaltogether. Policy is for politicians.

Include at least one argument that does-n’t pass the laugh test. It’s helpful if theargument is outrageous. Putting a smile onthe judge’s face: Priceless.

Judges need much structure. That’s whyyour brief shouldn’t have any. Don’tinclude headings or subheadings. No needto tell the court in what direction you’reheaded. Forget IRAC or any other organi-zational tool you’ve learned. Your law pro-fessors made you learn that stuff to maketheir job easier when they graded exams— and to help you win cases. If losing isyour goal, forget what the experts told you.

Never weave a theme or theory of thecase into the brief. Themes and theoriestell the judge what your case stands for —something about which your judge shouldremain clueless. A confused judge means ahappy client. And happy clients want youto write about why your adversary is ajerk, not about pretentious and arcanethemes and theories.

Invert the parties’ names. Write“appellee” when you mean to write“appellant.” Never use your client’s nameor your adversary’s name. But if you must,use acronyms. If your client’s name is“Olivia Knight,” use “OK” throughoutyour brief. If the appellant’s name is “BobSmith,” write “BS.”

Because good writing is planned, formalspeech, avoid outlining and editing, anduse contractions and abbreviations.

Include many facts. Leave nothing out.Be sure to mention a witness’s eye color,social security number, and family history.Including every irrelevant fact, person,place, and date will guarantee that thecourt won’t know whether the caseinvolves a tort, a contract, or a constitu-tional wrong. Arrange the facts in reversechronological order. Don’t even think

about techniques of storytelling, makingyour client come alive, and offering a suc-cinct, concise procedural history fromyour client’s perspective.

Misstate the law. Make it up if thecourt’s holding favors your client. Logictells you that the law can be so wrong.Don’t explain how the law applies to yourclient’s facts. The law is what it is. Youcan’t change anything about it. Avoid com-mon sense. If you pretend that you want towin and you decide to integrate law andfact, start the sentence as follows, “In myhumble opinion . . . .” Every judge willknow that true enlightenment will come atthe end of the sentence. That’s why you’reguaranteed to lose in the end.

When you’ve lost all hope, and thingsseem to be going your way despite all yourefforts, or lack thereof, throw all the pagesto the brief down a flight of stairs, collectthem, and submit them in the order thepages fell on the floor. Every case is a puz-zle waiting to be solved.

Rule #3: Quote Other Judges andLawyers Because Your Ideas Don’tMatter.

No one wants to hear what you have tosay. Someone smart said it before. Justrepeat it. Using lots of long quotationsmeans you didn’t do independent researchand analysis. Make your lack of effortobvious. Block quotations are essential in aloser brief. They waste tons of space. Andno one reads them. The less the judgereads, the likelier you’ll lose. When youquote, misquote. How else will you knowwhether the judge read your brief? Makesure you quote dicta, not holdings. Also,quote language that sounds good, even ifthe case goes against your client’s position— and even if the case facts are differentfrom your case. If you’ve read it before, itmust be true. Don’t bother checking otherauthorities. Quote all the language from thesource. Include everything. Regurgitate theholdings of the case, paragraph by para-graph. Take the holdings from the head-notes. Better yet, quote from the headnotes.

Rule #4: Citations Are for the Lameand the Weak.

Miscite your authorities. Get the volumeof the reporter right, but forget page num-bers. Close enough is good enough, unless

Don’t Miss JudgeLebovits’s CLE, “Persuasive Writingfor Litigators”

The Honorable Gerald Lebovitswill share the secrets of good writingat an Academy seminar scheduled forthe evening of March 31. Topicsinclude legal writing do’s and don’ts;organizing a draft; making writingpowerful and precise; the art of story-telling, and giving readers what theyneed and want.

The program runs from 6:00 to 9:00p.m., with sign-in and light supperfrom 5:30. The presentation also willbe available as a real-time webcastand, after, as a CD or DVD recordingand an on-line video replay.

Underwriting for this program hasbeen generously supplied by EchoAppellate Press, Inc. (President StuDavis).

Writing Bad Briefs: How to Lose a Case in 100 Pages or More

The longer your brief, the less the judge willunderstand your case. If you choose to be deferential, make it sound phony: Use“respectfully” a lot.Obfuscate with jargon.

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your goal is to lose by winning. If a deci-sion is longer than one page, never give thepinpoint citation. Your goal is to make it sodifficult for the judge to find any morsel ofaccuracy that the judge will turn to youradversary’s brief.

String cite whenever possible. If youhave 20 cases for the same proposition,add them all. To show that you’re smarterthan the judge — a losing and thereforeeffective strategy — cite after every propo-sition in your brief, even for obvious state-ments. But don’t cite the record below.Pointless.

Nor should you cite much legal authori-ty. Judges are busy skeptics. It’s fun tomake them and their law clerks researchfrom scratch. If they don’t, and they prob-ably won’t, you’re half-way to your losinggoal line.

Never write the name of the case cor-rectly. Pick one party and leave the otherone out of the citation. Annoying the courtwill help you lose.

Don’t cite the official reporters. Makethe judge and law clerk find the correctcitation. You just know they won’t.

If you cite, don’t explain why your cita-tions are relevant. Mention that the casesare on point, but don’t say why. If you tryto explain the case, make the case morecomplicated than it is. If you want to beanalytical and fancy, start every paragraphwith “My adversary’s argument is menda-cious and ridiculous.” And never use par-enthetical explanations after citations.Parentheticals just throw judges a curve.

Don’t cite binding cases from your juris-diction. Cite oral decisions. Cite and quoteonly from dissenting and concurring opin-ions. Don’t cite constitutions, statutes, orother laws.

Never attach the hard-to-find cases orthe law you’ve cited.

Rule #5: Being a Lawyer MeansKnowing How to Break the Rules.

The more rules you break, the greateryour chances of losing. If the judge presid-ing over your case limits your brief to 15pages, ignore the page limit. Rules aremade to be broken. The judge obviouslydoesn’t know that more is better. Exceedthe limit. Make it 25, 50, 100, or morepages. The longer your brief, the less thejudge will understand your case. Haulingheavy briefs will give the judge the excusenot to read your brief. Besides, mostjudges can’t concentrate for more than 10minutes at a stretch. And judges will usu-ally fall asleep — they call it “deliberat-ing” — by the mid-afternoon from all thehard work they’ve done digesting theirtwo-hour lunches. The longer and moreboring the brief, the faster you’ll get thejudge to deliberate over your brief.

If you’re a stickler for the rules, con-dense your 100-page brief to fit a 15-pagelimit. It doesn’t matter whether the text istoo small to read. It’ll give the judge anopportunity to take out a magnifying glassand see your case for what it really is: aloser.

Deadlines are for deadbeats. The moreimportant it is to the court or your adver-sary for you to file a brief on time, themore you should be late. That’s why, whenyou get a project, you shouldn’t start early.

Don’t include a table of contents or atable of authorities. Including either one ofthem, or including both of them, meansyou’re a showoff.

Rule #6: Make It Personal.If you’ve tried all the above rules, and

you still haven’t lost, go for the jugular.

Attack the court, opposing counsel, andyour adversary with insults, condescend-ing language, snide remarks, irony, andhumor. Destroy them: Denigrate theirintelligence, motives, and integrity. Tellthem how you really feel. Assail thecourt’s earlier decisions. Pour it on likesalt on a wound. Critique your adversary’swriting skills. It’s obvious you went to thebetter law school. Don’t be deferential tothe court. We all know that the judge isn’tthe sharpest tool in the shed, just the morepolitically connected. If you choose to bedeferential, make it sound phony: Use“respectfully” a lot. If you do that, thecourt might not sanction you for frivolouslitigation.

Losing briefs are those that demonstratehow the court is conspiring with youradversary against your client and you per-sonally. Use the phrase “in cahoots” often.

Tell the court that your adversary is a“liar” who likes to tell “fanciful fairytales.”From then on, call your adversary “Myopponent’s ‘esteemed’ attorney.” If youradversary responds in kind, keep fightingback. Hit below the belt. Judges love itwhen both parties take off the gloves.You’ll entertain your judge, who’ll placebets with court personnel on which lawyerwill end up the bigger loser.

Rule #7: Bury the Bad Stuff.Losers concede nothing. Fight to the

end, especially on the little things thatdon’t matter. How else will the judge knowthat you’re passionate about the case?

Include only the facts favorable to yourclient. Hide unfavorable facts. A judgewho thinks you’re sleazy will reward youwith the loss you seek.

Bury the bad cases — the ones that goagainst your client’s position. If you’vefound a case that goes against your argu-ment, don’t mention it. Let your adversaryfind it. No point in talking about onemeaningless case when you have 20 othercases on your side. Let the law clerks dosome research. They get paid to do yourresearch. And they get unlimited access toWestlaw and LEXIS. You don’t. Countyourself fortunate if you never get achance to address unfavorable cases later.

Don’t cite the record. The past is thepast.

Rule #8: You’re a Lawyer, Not anEditor.

Lawyers don’t have time to spellcheck,proofread, or cite check. Time is moneyfor lawyers. But for judges, seeing typos ina brief is like having a cellular phone gooff in a quiet courtroom to the dolefulRamones’ “I Wanna be Sedated” ballad.Don’t sweat the details. It’s the big stuffthat counts in a brief. Use typos to signalthat you’re a busy and successful lawyer— albeit a loser — with a great practice.

Repeat your arguments every chanceyou get. That will guarantee that the judgewon’t care even if you’re right on the law.Belabor the obvious.

No need for clarity or brevity: Haplessvirtues.

Don’t begin paragraphs with topic sen-tences or draft transitions to connect para-graphs.

Punctuation is important, but not in alosing brief. You’ve never learned the dif-ference between a comma, period, semi-colon, and colon. No reason to start now.To make your brief stand out, challengeyourself to write a sentence that covers anentire paragraph. Stream of consciousnessmeans you’ve thought about the case.

Handwritten edits will do. Put arrows

and stars for the judge to follow your argu-ment. You want your work to stand out;show the judge that you didn’t put theeffort to proofread. If you want to look likeyou care, handwrite the page numbers inblack ink in the bottom left-hand corner,right near the brief’s binding. Finding thepage numbers is half the fun in reading abrief.

Misspell your client’s name. Misspellthe judge’s name. If you can’t rememberthe judge’s name, call the judge “Mr.,”especially if the judge is a woman.

Rule #9: Be Superficial: It’s Not theSubstance That Counts.

Write emotionally: Show the judge whatmatters. Because understatement is per-suasive, be sure to exaggerate. Details arewhat convince, so be conclusory.

Don’t tell the court what relief you seek.If by some mishap you win, you’ll at leastget the relief you neither need nor want.

In a losing brief, the question presentedshould be several paragraphs long. You’vegot lots of questions, and judges alwaysthink they have lots of answers. Write thequestion in a way that the judge willrespond with a definite “maybe.”

In your facts section, include facts thataren’t in your argument section. Includefacts that aren’t in the record. If you mustcite the record, direct the judge to thewrong page. A quicker way to lose: Don’tcite facts at all. Argue law but never fact.Don’t explain how the case reached theappellate court. Don’t explain what hap-pened at trial.

In your summary of the argument, writeonly one or two sentences detailing whatyour case is about. If you must summarize,make sure your summary is longer thanyour entire argument section.

The heading and subheadings, if youinclude any, should be objective and neu-tral. You want the judge to think you’rehonest and fair — and wrong. Label yourheadings “Introduction,” “Middle,” and“Conclusion.”

Start every argument in your opening bypredicting what your adversaries mightsay. Then don’t say why they’re wrong.

In your reply briefs, don’t respond toyour adversaries’ arguments. Restateeverything you’ve already mentioned inyour brief. Or, even better, raise new argu-ments.

Rule #10. When All Else Fails,Confuse Them With Words.

Write like a real lawyer. Confound withlegalese: “aforementioned,” “hereinafter,”“said,” “same,” and “such.” Obfuscate withjargon: “the case at bar” or “in the instantcase.” Bore with clichés: “wheels of jus-tice”; “exercise in futility”; and “leave nostone unturned.”

Treasure nominalizations: Turn power-ful verbs into weak nouns. Although nom-inalizations are wordy and abstract, rely-ing on them is good for losing. Examples:Use “allegation” instead of “allege,” “vio-lation of” instead of “violating,” and“motioned for” instead of “moved.”

Metadiscourse is verbal throat clearing.That’s why you need to know about thisdevice. Every chance you get, use “it isimportant to remember,” “it is significantto note,” “it should be emphasized that,”and “it goes without saying that.” Use “it iswell settled” and “it is hornbook law” todescribe what the less-educated might calla split in authority.

Use the passive voice everywhere: Beobtuse about who’s doing what to whom.Write “The victim was murdered by the

defendant” instead of “The defendant mur-dered the victim.” When the issue is whomurdered the victim, obscure the actoraltogether: “The victim was murdered”should suffice.

Grammar — adverbs, adjectives, nouns,pronouns, agreement, parallelism, sen-tence fragments, verb tenses, fused partici-ples, and gerunds — is a big blur for somelawyers. Keep it that way. Who knewabout modifiers? Don’t learn the differ-ence between “who” and “whom” and“that” and “which.” Mixed metaphors willset you apart from your adversary: Yourbrief will cause the judge to close the barndoor after a horse shut it.

Throw in adjectives and even someadverbial excesses. Use “clearly” and“obviously,” especially when your pointisn’t at all clear or obvious.

Use plenty of acronyms, especiallythose you never define.

Be cowardly. Include doubtful, timid,and slippery equivocations, phrases, andwords: “at least as far as I’m concerned,”“generally,” “probably,” “more or less,”and “seemingly.” That’s how you showwhat a lousy case you have.

Instead of writing in the positive, writein the negative. Appellate judges, whothemselves love expressions like “Thiscase is remanded for proceedings notinconsistent with this opinion,” will identi-fy with expressions like “This case is notunlike . . . .”

Have fun and play with language. Createrun-on sentences. Combine complicated,multisyllabic words. Construct long sen-tences — learned lawyers do that all thetime.

Employ foreign words. It behooves youto replace English words with French,Italian, and Spanish. If you’re educated,use Latin. The judge will think you’re suigeneris.

Redundancy is necessary in a losingbrief. Two or more words are better thanone. Use the following: “advance plan-ning,” “few in number,” and “true facts.”

Reach for a thesaurus every chance youget. Use different words to mean the samething. Forcing the judge to expend energyreaching for a dictionary leaves little timefor the judge to read your brief.

Talk about freedom, justice, equity, andthe American dream. Bring up the U.S.Constitution even if your case has nothingto do with a constitutional issue.

Include at least one rhetorical questionin each paragraph. Isn’t that a good way totell the judge you’re a LOSER?

ConclusionWriting a bad brief takes preparation

and practice. The preparation begins dur-ing law school. Few things academic applyto practicing in the real world. Lawyersmust know the real rules to writing a badbrief — the things you never learned inlaw school and, likely, the things no onewill teach you when you practice law.

If a winning brief makes it easy for thejudge to rule for you and want to rule foryou, the loser’s goal is to make it hard forthe judge to rule for you and to make thejudge want to rule against you.

If you’re unlucky enough to have smart,honest colleagues edit your brief, ignoretheir suggestions. Accuse them of beingegotistical to deflect any notion thatthey’re offering helpful comments. Anddisregard all comments offered by yourpartner or supervisor. Their commentsmight be subversive — and actually favor

Writing Bad Briefs: How to Lose a Case in 100 Pages or More(Continued from page 24)


your client.Sometimes judges will feel so sorry for

you that they’ll wade through your brief tofind a nugget of merit. You might have achance to win — er, lose — after all. Butif losing is your goal, just read your brief,typos and all, at oral argument.

GERALD LEBOVITS is a judge of theNew York City Civil Court, Housing Part,in Manhattan and an adjunct professor atColumbia Law School and St. John’sUniversity School of Law. He thanksAlexandra Standish, his court attorney, forher help with humor. Judge Lebovits’s e-mail address is [email protected].

In case you win despite following thefoolproof advice in this column, the LegalWriter suggests some more articles.They’ll help you lose your next case:Sarah B. Duncan, Pursuing Quality:Writing a Helpful Brief, 30 St. Mary’s L.J.1093, 1132–35 (1999); James W.McElhaney, Twelve Ways to a Bad Brief,82 ABA J., Dec. 1996, at 74; Jane L.Istvan & Sarah Ricks, Top 10 Ways toWrite a Bad Brief, N.J. Law. 85 (Dec.2006); Eugene Gressman, The Shalls and

Shall Nots of Effective CriminalAdvocacy, Crim. Just., Winter 1987, at 10;Peter J. Keane, Legalese in Bankruptcy:How to Lose Cases and Alienate Judges,28 Am. Bankr. Inst. J. 38 (2010); AlexKozinki, The Wrong Stuff: How You TooCan . . . Lose Your Appeal, 1992 BYU L.Rev. 325, 325–29 (1992); Paul R. Michel,Effective Appellate Advocacy, 24 Litig.19, 22–23 (Summer 1998); WilliamPannill, Appeals: The Classic Guide, 2Litig. 6 (Winter 1999); Harry Pregerson,The Seven Sins of Appellate Brief Writingand Other Transgressions, 34 UCLA L.Rev. 431, 433–37 (1986); Harry S.Silverstein & Edwin C. Ruland: How toLose an Appeal Without Really Trying, 4Colo. Law. 831 (1975); Harry Steinberg,The 10 Most Common Mistakes in Writingan Appellate Brief, N.Y.L.J., Aug. 31,2009, at S4; Susan S. Wagner, MakingYour Appeals More Appealing: AppellateJudges Talk About Appellate Practice, 59Ala. Law. 321 (Sept. 1998); Joseph F.Weis, Jr., The Art of Writing a Really BadBrief, 43 Fed. Law. 39 (Oct. 1996).


Writing Bad Briefs: How to Losea Case in 100 Pages or More(Continued from page 25)The Suffolk County Bar Association’s

Animal Law Committee and the SuffolkAcademy of Law present their ThirdAnnual “Dog Day Afternoon Agility Expo& Pet Fair” on Saturday, May 14, from10:00 a.m. to 4:00 p.m. at St. Joseph’sCollege, located at 155 West RoeBoulevard, Patchogue, NY 11772 (in thequad).

Hosted by WALK-FM’s own K.T.Mills, this family-fun event includes edu-cational shows teaching the public about avariety of animals and their proper care, aswell as agility demonstrations throughoutthe day provided by “All Fur Fun Agility.”Rescue groups of every kind will be in

attendance with their animals for adoptionand to see, enjoy, and learn about.

Come join your fellow bar membersand enjoy a fun filled day outdoors withanimals, entertainment, vendors, food,and great raffle prizes! Admission is$10.00 per car! Bring your dog for fun anda run through the agility course!!!!! Alldogs must be leashed and well behaved.Please leave furry friends who do not playwell with others on the couch.

For additional information, please seeinsert in this issue or email [email protected] or call 631-265-0155,ext 204. Rain date is Sunday, May 15th.

- Amy Chaitoff

Dog Day Afternoon AgilityExpo & Pet Fair

year terms after successful completion ofwhich eligibility is acquired for three-year terms) fill openings that will occuras outgoing Officers Nancy Ellis, DianeFarrell, Richard Filiberto, AllisonShields, and John Zaher complete fouryears of service, the limit set by Academybylaws.

This spring, Ms. Farrell was nominatedby the SCBA Nominating Committee as anew SCBA Director, term commencingon June 1, and is thus scheduled to tradeher position as Academy officer for oneas Academy trustee. SCBA Directorsserve as the trustees of the Academy andhave oversight authority over Academyactivities.

Management (as opposed to oversight)of Academy affairs is in the hands of a21-member board of officers. Along withthe newly elected officers, next year’sAcademy board will include Robin

Abramowitz, Brian Duggan, SeanCampbell, Amy Chaitoff, theHonorable James Flanagan, JeanetteGrabie, Herbert Kellner, ScottLockwood, Marilyn Lord-James,Gerard McCreight, Lynn Poster-Zimmerman, Lita Smith-Mines, DanielTambasco, George Tilschner, and theHonorable Stephen Ukeiley.

Mr. Campbell, Ms. Chaitoff, JudgeFlanagan, Ms. Grabie, Mr. Lockwood,and Ms. Smith-Mines were elevated fromone-year to three-year terms in the recentelections.

The service provided by all of theAcademy’s officers and volunteers can-not be lauded often enough. Volunteeringtime and expertise, they bring the SCBAmembership100–150 inventive andrewarding continuing legal educationprograms each year.

– Ceparano

My active membership in the SCBA (onthe Bench/Bar, Judicial Screening,Nominating, Municipal Law, andEnvironmental Committees, and as apanel participant on several CLE pro-grams) was and continues to provide mewith tremendous opportunities to con-tribute on many significant levels, includ-ing service as a member of the Board ofDirectors for a full three-year term (2003-2007).

I would like to particularly point outthat it was because of my personal com-mitment to be actively involved in theSCBA that I was given the very valuableopportunity to serve on one of the mostimportant committees of the association -the Judicial Screening Committee.Initially I was appointed to the committeeby then SCBA President Eugene O’Brien,and I was later designated as the commit-tee’s chair by a subsequent president,Douglas Lerose. The obvious significanceof serving on the Judicial ScreeningCommittee is due to its critical charge ofreviewing the qualifications of all county-wide judicial candidates. However, par-ticipation on that committee also openedthe door to meaningful discussions aboutthe need for diversity on such committeesand among judicial candidates, law clerksand other court personnel in all jurisdic-tions.

Subsequently, the SCBA’s Board ofDirectors elected me to serve as one of theassociation’s representatives on the NewYork State Bar Association’s House ofDelegates. The NYSBA’s House ofDelegates constitutes the leadership ofour statewide professional association,which is currently 77,000 membersstrong, and it is the governing body thatcontrols and determines the policies of theNYSBA, subject to referendum. It wasmy privilege and honor to have served inthat capacity for three years (2008-2010).

My opportunities to be a leader at theSCBA have provided me with many trea-sured relationships, both professionallyand personally; the warmth, friendshipand camaraderie that I have found throughthe SCBA are palpable, and my commit-ment and personal investment to theSCBA have been well-worth my time andenergy. But as with all of my efforts withvarious bar associations, each has demon-strated that diversity in the legal profes-sion requires active personal participation

to advance diversity with bar associationsand the profession more broadly.

I am a man from humble beginningsthat has risen to local, county, and statebar association leadership positions.Through all of my ongoing experiences Ihave, for the most part, witnessed a pro-fessional commitment to treat all peoplewith respect and dignity. On all levels ofmy involvement, I have observed first-hand a commitment to the ideal that [w]ewant to enhance the opportunities forminorities and women in our bar associa-tion and profession. I have also observedfirsthand that the qualities that are essen-tial for any person to achieve success,whether it is in public service or in the pri-vate sector, are integrity, honesty, ethicalbehavior, good work habits, and respectfor others. These qualities are requiredregardless of ethnic or personal back-ground.

Diversity in the legal profession is nec-essary. As lawyers, we not only speak forthe legal rights of our clients, but we havealso taken an oath to uphold theConstitution that guarantees “EqualJustice under Law.” The Suffolk CountyBar Association provides a genuineopportunity for each of its members toactively participate in the profession, andI have made the time to do so and benefit-ed by that opportunity. So can you.Diversity can be achieved within the pro-fession, but it is ultimately up to individ-ual members within the profession tomake that happen.

Note: Derrick Robinson was appointedby Andrew Cuomo to the State of NewYork, Office of the Attorney General, as anAssistant Attorney General, and worksout of the Nassau Regional Office. He is alitigator, responsible for representingstate officials, agencies and employees, inboth State and Federal Court, on a widerange of issues. In addition, Mr. Robinsondoes community outreach presentationson consumer protection matters involvingdeceptive trade practices, consumerfrauds, identity theft, student loans, andmortgage modification schemes. He is aformer member of the House of Delegates(2008-2010), and a member of the SCBABoard of Directors (2011) andNominating Committee. Mr. Robinsonwas the founding president of the AmistadLong Island Black Bar Association.

Importance of Diversity in the Bar Association (Continued from page 9)

decedent’s death. Nevertheless, the courtopined that a specific bequest passesdirectly to the beneficiary thereof upon thetestator’s death, subject to the probate ofthe will and any need to sell thebequeathed asset to pay a valid adminis-trative expense. The court concluded thatthe circumstances did not demonstrate anytype of problem, such as a contest overtitle, or occupancy by a third party, thatwould require the estate to carry the apart-ment at its own expense. Accordingly, thefiduciary was directed to restore to theestate the monies used by her for theexpenses of the apartment, together withstatutory interest.

Finally, the court surcharged the fiducia-ry to the extent of the interest and penal-ties paid by the estate, together with statu-tory interest.

In re Gourary, NYLJ, Nov. 16, 2010, p.25 (Sur. Ct. New York County) (Sur.Glen).

Note: Ilene Sherwyn Cooper is a part-ner with the law firm of Farrell Fritz, P.C.where she concentrates in the field oftrusts and estates. In addition, she isimmediate past-president of the SuffolkCounty Bar Association and a member ofthe Advisory Committee of the SuffolkAcademy of Law.

Trust And Estates (Continued from page 12)

Academy Completes 2011-2012Elections (Continued from page 28)


fact of our unequal status under the law.But when the day comes when all of

our discriminatory laws are purged fromthe books – and I suspect that most of uswho have dedicated ourselves to the workof organizations serving the LGBT com-munity share the stubborn belief that theday will, in fact, come – I think our barassociation will endure.

The reasons for our existence are noless compelling today than they weremore than 30 years ago when our organi-

zation was in its infancy. There willalways be a place for organizations that,at their core, seek to bring together peopleof shared backgrounds and shared inter-ests to serve shared goals.

Note: Brad Snyder is the ExecutiveDirector of LeGaL, the LGBT BarAssociation of Greater New York, one ofthe largest and most active organizationsof its kind in the country. For more infor-mation on LeGaL, visit www.le-gal.org.

ent is Suffolk County’s very own A. GailPrudenti, Presiding Justice of theAppellate Division, Second Department.As with all prior years’ recipients, JusticePrudenti is an Italian-American Jurist whohas distinguished herself and our Italian-American heritage through her greatachievements, intelligence, compassionand dedication; she is the first recipientfrom Suffolk County. For anyone interest-ed in attending the luncheon, it will be heldon Saturday, April 30, 2011, at the WaldorfAstoria in New York City and you maycontact me for details.

In addition to myself, the SuffolkCounty Columbian Lawyers are current-ly lead by Vice President/Treasurer GregCaggiano and Secretary StephanieBuffa. We have an active Board andapproximately 125 committed members,including past and present SuffolkCounty Bar Association Presidents JohnL. Juliano, Vincent A. Malito, JohnBuonora, and Sheryl L. Randazzo. Ourpast and present membership has alsoproudly included numerous distin-

guished members of the Suffolk CountyJudiciary, including Judges Copertino,Prudenti, Filiberto, Alamia, Garguilo,Weber, Fitzgibbon, Ohlig and Crecca.

Although our organization’s intentionis to promote and support persons ofItalian heritage, the membership is notlimited to persons of Italian descent. Thegoal of the Columbian Lawyers is tobring together persons who appreciateand support the advancement of Italian-Americans and all are welcome to join.The membership year extends from theAnnual Installation event in Septemberthrough to May of the following year.Our next and final meeting of the yearwill be May 24 at 6:00 pm and will takeplace at San Marco’s Ristorante locatedat 658 Motor Parkway, Hauppauge, NewYork. All are welcome and encouragedto attend to see firsthand what we are allabout.

Anyone interested in learning moreabout or joining the Suffolk CountyColumbian Lawyers may contact me at631-862-0751 or by email at llu-

[email protected]. Annual dues areonly $40.00, the company of warm-heartedand interesting colleagues is readily avail-able, and dinner is always delicious.

Note: Lucretia M. Lucivero is a SuffolkCounty attorney from St. James and canbe reached at 631-862-0751 or by emailat [email protected].

LGBT Bar Still Matters (Continued from page 8)

Dedicated to Promoting and Supporting Persons of Italian Heritage(Continued from page 9)

Pro Bono (Continued from page 17)

separation agreement they drafted provid-ed for health insurance and maintenancepaid directly from her husband’s pension.

Professor Silverman, who completedhis undergraduate degree at New YorkUniversity, received his J.D. from BostonUniversity School of Law. He began hiscareer as Assistant Suffolk CountyAttorney, rising to Supervising Attorneyof the Abuse/Neglect Unit and DeputyFamily Court Bureau Chief. In 1985 hewas appointed Family Court HearingExaminer and had several of his opinionspublished in the New York Law Journal.Director of Touro’s Family Law Clinicsince January 1995, he recently becameDirector of Externship Programs as well.He teaches courses in Family Law, CivilProcedure, Sexual Orientation and theLaw, Pre-Trial Litigation, and The Rightsof Children.

He is a member of the Suffolk CountyBar Association, the American BarAssociation, the International Society ofFamily Law, and the New York State BarAssociation. As a member of NYSBA’sCommittee on Gay People and the Law,he has developed two CLE seminars onthat subject.

Some students in the Family LawClinic over the years have come to Tourodirectly from completing their undergrad-uate work while others came during orafter pursuing other careers. Still others

came after undergoing a painful divorce.They came from SUNY or CUNY col-leges or from private colleges on LongIsland, from upstate or out of state. Oncemembers of the bar some have special-ized in matrimonial and family law, whileothers have chosen other specialties orhad general practices. A few have been aPro Bono Attorney of the Month inSuffolk or Nassau County.

Professor Silverman is especially grati-fied that so many alumni of the FamilyLaw Clinic are practicing family law, rep-resenting indigent clients, or engaging inother types of public service. With thekind of training he gives in the FamilyLaw Clinic, he feels that he is “givingback” to the legal profession and perform-ing a form of pro bono service himself.

The Pro Bono Project and SuffolkCounty’s indigent population have bene-fited enormously from Touro’s FamilyLaw Clinic, its students, and its director,Lewis A. Silverman. It honors the projectto honor them once again as Pro BonoAttorney of the Month.

Note: Rhoda Selvin is a former admin-istrator at Stony Brook University. Shewas a member of the GrievanceCommittee for the Tenth JudicialDistrict,1987-95, and has been a volun-teer with the Pro Bono Project sinceNovember 1995.

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________________________By Dorothy Paine Ceparano

At this writing, the clocks are about tomove forward, and spring’s arrival is closeat hand. For those involved in the world ofcontinuing legal education, it’s a perfecttime to think about how the new seasoncan translate into a period of growth andrenewal for the attorneys we serve.

At the Academy, to a large degree, eachnew semester is a tabula rasa: a time todecide what we will do and how we willdo it. At planning meetings, Academy offi-cers and volunteers talk about whatlawyers need to keep pace with changes inthe law, with changes in the economicenvironment, and with changes in the pub-lic’s need and desire for legal services.Some immediate trends – and the CLEcourses they engender – are obvious:

divorces continue; bankruptcies are soar-ing; the exchange of residential property isdown; estate planning is permeated by taxquestions. Our CLE courses keep pacewith these trends. But the Academy’s mis-sion goes beyond just that. Academy goalsinclude helping lawyers to discover poten-tial new practice areas to grow and invigo-rate their practices and providing learningenvironments that meet a range of needs,from those of practitioners who are toobusy to attend classes in person to those oflawyers who wish they were busier.

This spring we invite you to try some-thing new. Peruse the Academy’s curricu-lum with an eye toward gaining skills thatwill help you to serve new clients or han-dle new matters for existing clients. If youare extremely busy, think about taking aprogram by real-time webcast. You may

tune into a webcast virtually anywhere youhave an Internet connection and may evenquestion the presenters, during the pro-gram, via email. If, on the other hand, yourpractice is languishing, start to think ofCLE classes not only as sources of infor-mation, but as networking opportunities.The contacts you make – with presentersand co-attendees – may lead to new busi-ness when you least expect it.

The Academy’s syllabus for the newsemester (April–June), like a spring gar-den, is still a work in progress. And weinvite you, our constituents, to help us tillthe soil. Let us know what you need tomove toward a more gratifying, energizingpractice. Academy board and curriculummeetings are open to all SCBA members,and we also invite ideas and suggestionsby letter, phone, or email.

In the meantime, the seeds are plantedfor many course offerings we hope youwill find inviting and rewarding.

April includes programs on DynastyTrusts (lunch on April 5); ImmigrationOptions for Survivors of DomesticViolence (pro bono training on evening ofApril 7); Legal Issues & Palliative Care(from the SCBA Health and HospitalCommittee on the evening of April 13);Probate & Administration (April 29,morning, at Surrogate’s Court); AlternativeWork Schedules (April 29, morning, atTouro Law Center); two lunch seminars atthe Carleton Avenue Courthouse (April 14and 27); and Comprehensive Insurance:A Look at What Businesses andIndividuals Need (date TBA).

May classes comprise Practice in theAppellate Division (from the SCBAAppellate Practice Committee on theevening of May 4); Charitable Trusts(lunch on May 10); Negotiations (evening,May 11); Elder Law Litigation (tentative-ly on May 12); Foreclosure – Soup to

Nuts (full day on Friday, May 13); CourtAccountings (evening, May 18);Dangerous Dog Cases (evening, May 19);Finding Assets–A Treatise forMatrimonial, Bankruptcy, and CriminalLawyers (evening, May 24); AnnualAnimal Law Seminar (evening, May 25);Immigration Law for Criminal Lawyers(from the SCBA Immigration and CriminalLaw Committees on the evening of April26); International Taxation Issues: aNew Initiative from the IRS (lunch pro-gram on a date TBA); and Negotiating toWin (evening–date TBA).

In June, the Academy will presentPracticing in Suffolk’s Commercial Part(June 2); Lifetime Trusts for Minors(June 7, lunch); Estate and RetirementDistribution Planning for PlanParticipants and IRA Owners (morningof June 14 by Sy Goldberg); Family Lawseminar (evening, June 14); DomesticWorkers’ Law: Issues for Elder Law andEmployment Law Attorneys (June 16);and a Bankruptcy Law Update (eveningof June 23).

Spring also brings two annual updatesour constituents traditionally attend in goodnumbers: Annual Auto Liability Updateby Jonathan Dachs and Professor MichaelHutter; and Evidence Update by ProfessorRichard Farrell. These dates will beannounced shortly.

In the coming weeks, the Academy willfirm up some of the tentative dates andofferings and add a substantial number ofadditional programs to its spring semester.We invite the thoughts and involvement ofSCBA members. The Academy’s overrid-ing objective is to develop a syllabus thattruly contributes to the professional growthand revitalization of those we serve.

Note: The writer is the executive direc-tor of the Suffolk Academy of Law.

In two election meetings, one inFebruary and one in March, AcademyOfficers elected a new dean for 2011-2012 and five new officers to fillvacancies that will occur on theAcademy board at the end of the cur-rent administrative year (May 31).

The Honorable John Kelly, aFamily Court judge and long time par-ticipant in Academy activities, waselected dean. He will take over forRick Stern, the Academy’s currentdean, on June 1. As dean, Judge Kellywill automatically become a directorof the Suffolk County Bar Association.Mr. Stern, who has served as dean dur-ing 2009-2010 and 2010-2011, contin-ues on the SCBA board for another

year, completing his second of twothree-year terms as an associationdirector. Academy bylaws limit serviceas dean to two one-year terms.

Newly elected Academy Officers areWilliam McDonald (current chair ofthe SCBA Health and HospitalCommittee), Harry Tilis (Academyvolunteer and CLE presenter), PeterWalsh (an active Academy volunteer),Glenn Warmuth (current chair of theSCBA Appellate Practice Committee),and the Honorable Thomas Whelan(a justice of the Supreme Court inSuffolk County and a frequent presen-ter for the Academy).

The new Officers (elected to one

ACADEMY OF LAW NEWS

ACADEMY

Calendarof Meetings & Seminars

Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because ofconditions beyond our control CLE programs involve tuition fees; see the CLE Centerfold forcourse descriptions and registration details. For information, call 631-234-5588.

April1 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m.

Breakfast buffet. All SCBA members welcome. 5 Tuesday Trust Series: Dynasty Trusts. 12:30–2:10 p.m.

Sign-in and lunch from noon.7 Thursday Immigration Options for Survivors of Domestic Violence

(Pro Bono Training program from the SCBA Immigration Law Committee and SEPA Mujer, a Latina Rights Organization). 6:00–8:00 p.m. Sign-in and light supper from 5:30 p.m.

13 Wednesday Palliative Care (SCBA Health & Hospital Law Committee). 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

27 Wednesday District Court Practice (tentative date). 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

29 Friday Probate & Administration. 9:30 a.m.–12:30 p.m. atSurrogate’s Court, Riverhead. Sign-in and donuts from 9:00 a.m.

29 Friday Alternate Work Schedules. 9:00 a.m.–12:00 noon at Touro Law School. Sign in and continental breakfast from 8:30 a.m.

May4 Wednesday Practicing in the Appellate Division (SCBA Appellate

Practice Committee). 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

6 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Breakfast buffet. All SCBA members welcome. (Last meeting of the current administrative year.)

10 Tuesday Trust Series: Charitable Trusts. 12:30–2:10 p.m. Sign-in and lunch from noon. [Note change from originally announced date.]

11 Wednesday Negotiating. 6-9 p.m., sign-in from 5:30 p.m.12 Thursday Elder Law Litigation (tentative date). Details TBA.13 Friday Foreclosures: Soup to Nuts. Full day.

Sign in and continental breakfast from 8:30 a.m.14 Saturday “Dog Day Afternoon Agility Expo & Pet Fair.”

(SCBA Animal Law Committee). St. Joseph’s College (in the quad). 10:00 a.m.–4:00 p.m.

18 Wednesday Court Accountings. 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

19 Thursday Dangerous Dog Cases. 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

24 Tuesday Finding Hidden Assets. 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

25 Wednesday Annual Animal Law Seminar. 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

26 Thursday Immigration Law for Criminal Law Practitioners (SCBA Immigration Law and Criminal Law Committees). 6:00–9:00 p.m; sign-in and light supper from 5:30 p.m.

Check On-Line Calendar (www.scba.org) for additions, deletions and changes.

Spring Ahead....

Academy Completes 2011-2012 Elections

More Academy Newson pages 22-23;

CLE Course Listings on pages 24-25

ACADEMY OF LAW OFFICERS

Nancy E. EllisDiane K. FarrellRichard L. FilibertoAllison C. ShieldsJohn C. ZaherHerbert (Skip) KellnerMarilyn Lord-James

Lynn Poster-ZimmermanGeorge R. TilschnerHon. Stephen UkeileyRobin S. AbramowitzBrian DugganGerard J. McCreight

Daniel J. TambascoSean E. CampbellAmy Lynn ChaitoffHon. James P. FlanaganJeanette GrabieScott LockwoodLita Smith-Mines

DEANRichard L. Stern

Executive DirectorDorothy Paine Ceparano


Let CLE move your professional life forward.

Documents

LI Life Calendar · 2 THE SUFFOLK LAWYER — APRIL 2011 To Advertise in The Suffolk Lawyer Call (866) 867-9121 SCBA OF ASSOCIATION MEETINGS AND EVENTS All meetings are held at the