LI Life Calendar - SCBA · 2008-07-09 · 2 THE SUFFOLK LAWYER — JUNE 2008 SCBA OF MEETINGS AND EVENTS All meetings are held at the Suffolk County Bar Association Bar Center, unless

James Winler(r.) the new SCBA President, with his broth-

er Richard and sister Carol. The new SCBA Directors are sworn in. The new SCBA Officers commit to serving the association.

Special edition of Labor and Employment Law

Love contracts . . . . . . . . . . . . . . . . . . . . . . . . . .3Key to rejection of AMA guidelines . . . . . . . . .6Problems with short-term hires . . . . . . . . . . . .5People v. Vinluan . . . . . . . . . . . . . . . . . . . . . . .4

The 100th President of the SCBAMatrimonial attorney plans to work hard for the bar . . . . . . . . . . . . . . . . . .3Book reviewNotes from a Genoese Jail . . . . . . . . . . . . . . .16Dinner, Libations Without PomposityFundraiser a success . . . . . . . . . . . . . . . . . . . . .9Hot PicksEric Clapton wows his audience . . . . . . . . . . .13Change Can Make for an Excelsior LifePositive change and growth happen when themind is open . . . . . . . . . . . . . . . . . . . . . . . . . . .11Restaurant reviewSCBA member opens fab restaurant . . . . . . . .18Freeze FrameHappenings among our members . . . . . . . . . .15_______________________________________Legal ArticlesAmerican Perspectives (Opinion) . . . . . . . . . .19Consumer Bankruptcy . . . . . . . . . . . . . . . . . . .17Court Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . .8DWI/DMV . . . . . . . . . . . . . . . . . . . . . . . . . . . .16For the Defense . . . . . . . . . . . . . . . . . . . . . . . .12Pro Bono . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . .12________________________________________Academy News . . . . . . . . . . . . . . . . . . . . . . . .28Advantage Card Listings . . . . . . . . . . . . . . . . .19Among Us . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7Calendar: Academy . . . . . . . . . . . . . . . . . . . . .28Calendar SCBA . . . . . . . . . . . . . . . . . . . . . . . . .2Committee Corner . . . . . . . . . . . . . . . . . . . . . .19

_________________________

By Dorothy Paine Ceparano

“Now it’s time to have fun,” newlyinstalled SCBA President James R.Winkler said as the band picked up at theend of the speeches and presentations.For the 300-400 plus who attend theAnnual Installation Dinner, however, theceremonial part of the evening is alsoenjoyable, even fun, and it is definitelymeaningful. It is a chance – repeatedannually, like New Year’s Eve – to cele-brate the accomplishments of the pastyear and to share in a new and hopefulbeginning for the community that is theSuffolk County Bar Association.

This year’s new beginning, celebratedon June 6 at the Hyatt Regency WindWatch Hotel, was especially significant.Jim Winkler is the Association’s 100thpresident, a milestone that speaks well ofSuffolk County lawyers.

Indeed, in his inaugural speech,

President Winkler said he was both “hon-ored and humbled” to be sworn in as thecentennial leader of the association. Hetalked of the lawyers he had seen goingabout their business when he was ateenager working in a local dairy store:Lawrence Bracken, JohnBracken, and Jim Catterson,among others. He knew thenthat he wanted to follow intheir footsteps. He went on toextol the virtues of the lawyerswho built the Association andthe qualities of the professiongenerally. He expressed hisadmiration for lawyers whoare “modest, competent, andpursue justice for their clients.” “Lawyersare, as Scott Karson stressed when he wassworn in as president, the most ‘importantguardians of justice,’ ” Jim said.

President Winkler’s address followed aceremony comprised of many tributes

and testimonials. Barry Smolowitz, theAssociation’s outgoing president, pre-sented two awards to educational entities:the Directors’ Award to Touro LawCenter and the President’s Award to theSuffolk Academy of Law. In presenting

the Directors’ Award, Barrynoted the special relationshipthe Association has enjoyedwith Touro, citing the factthat all of Touro’s studentsjoined the SCBA last year,bringing the Association’smembership to over 4,000and making it the secondlargest bar association in theState. The President’s Award,

Barry said, was given to the Academy,the Association’s own educational arm,in recognition of many years of accom-plishment. Long before continuing legaleducation became mandatory in NewYork, he stressed, the Academy was pre-

senting educational programs. Now, theAcademy develops more than 100 pro-grams a year, a feat made possible by thefact that although the Academy has a staffof only four, it has hundreds of volunteerswho give of their time and expertise.“This year,” Barry said, “ the Academybecame financially self-sustaining at therequest of the SCBA Board of Directorsand, at the same time, presented numer-ous spectacular programs, including anethics seminar featuring United StatesAttorney General Michael Mukasey askeynote speaker.”

Touro Dean Lawrence Raful acceptedthe Directors’ Award on behalf of the lawschool. The President’s Award wasaccepted by Academy Dean Patricia M.Meisenheimer, with Academy ExecutiveDirector Dorothy Paine Ceparano invitedto join her at the podium.

President Winkler presented Mr.(Continued on page 20)

INSIDE JUNE 2008

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 24 No 6June 2008website: www.scba.org

Stand Proud_________________

By James R. Winkler

I am humbled and proud to serve as the100th President of the Suffolk County BarAssociation. For more than 30 years you— the members of the Suffolk CountyBar and bench— have blessed me withyour friendship and comradery. We have grown together aslawyers, in an atmosphere of mutual respect, and our profes-sional disagreements almost never got in the way of our pro-found understanding that we have so much in common. Beingin the trenches together, day in and day out, has created astrong bond of friendship and respect that has enriched ourlives beyond anything we have acknowledged to each other.

Our lives have been shaped in significant part by this profes-sion and by the lawyers who have impacted our lives. I thank,particularly, the lawyers and judges who have served in theMatrimonial Parts in Suffolk and have devoted so much timeand energy to the most difficult cases handled by our courts.This is where I have spent most of my professional life in thelast 20 years. But I have practiced in several other areas duringmy career and know, first hand, of the tireless efforts bylawyers to seek justice for their clients, often at their ownexpense, financially and emotionally. I thank all of my fellowlawyers for being such wonderful colleagues and gracing thisprofession with your competence and commitment to justice.

Over time, this Bar Association has served our fellow

(Continued on Page 20)

PRESIDENT’S MESSAGE

James R. Winkler

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

Annual OutingMonday, August 11

11:30 a.m. The outing will be held at Great Rock Resort & Golf Club,

Sound Avenue & 25A, in Wading River. Shotgun 1 p.m.;barbeque lunch at 11:30 a.m.; cocktails and grand buffet din-ner at 6:00 p.m. Fishing aboard the Osprey sails from PortJefferson Town Dock at 7:00 a.m. The fishing trip is beingpartially underwritten by State Bank of Long Island.

Judiciary NightThursday, Sept. 18

6 p.m.Join the SCBA in honoring our judiciary at the Hyatt

Regency Wind Watch in Hauppauge. Call the Bar for furtherinformation at 631-234-5511.

Fall submissionsThe Suffolk Lawyer will resume publication in Sept.

Send all submissions by the end of August [email protected].

BAR BRIEFS

A Momentous Occasion-SCBA’s 100th Installation

James Winkler Takes Office as the Association’s 100th President

FOCUS ON

LABOR &EMPLOYMENT

LAWSPECIAL EDITION

Photo credit: Lynn Spinnato/SC

BA

THE SUFFOLK LAWYER — JUNE 20082

SCBA

OF MEETINGS AND EVENTS

All meetings are held at the Suffolk County Bar Association Bar Center,unless otherwise specified. Please be aware

that dates, times and locations may be changedbecause of conditions beyond our control.

For any questions call: 234-5511.

JULY 2008

14 Monday Executive Committee meeting, 3:00 p.m., Board Room.

17 Thursday Alternate Dispute Resolution Committee, 8:00 a.m., Board Room.

21 Monday Alternate Dispute Resolution Committee, 5:00 p.m., Board Room.

AUGUST 2008

4 Monday Executive Committee meeting, 3:00 p.m., Board Room

11 Monday SCBA’s Annual Outing, Great Rock Resort & Golf Club, Sound Avenue & 25A, Wading River. Call Bar Center for reservations.

21 Thursday Alternate Dispute Resolution Committee, 8:00 a.m., Board Room.

25 Monday Alternate Dispute Resolution Committee, 5:00 p.m., Board Room.

SEPTEMBER 2008


15 Monday Board of Directors meeting, 5:30 p.m., Board Room.

18 Thursday SCBA’s Annual Judiciary Night, Hyatt Regency Wind Watch Hotel, Hauppauge, 6:00 p.m. Alternate Dispute Resolution Committee, 8:00 a.m., Board Room.

22 Monday Alternate Dispute Resolution, 5:00 p.m., Board Room.

OCTOBER 2008


20 Monday Board of Directors meeting, 5:00 p.m., Board Room.

21 Tuesday Lawyer Assistance Foundation Golf Tournament, Westhampton Country Club, Westhampton Beach Further details forthcoming.

Calendar

James R. Winkler PresidentIlene S. Cooper First Vice PresidentSheryl L. Randazzo Second Vice PresidentMatthew E. Pachman TreasurerDennis R. Chase SecretaryJustin M. Block Director (2008)Neil M. Block Director (2008)Jonathan C. Juliano Director (2008)John B. Zollo Director (2008)Patricia M. Meisenheimer Director (2009)Ted M. Rosenberg Director (2009)Richard L. Stern Director (2009)Richard Alan Weinblatt Director (2009)Lynne M. Gordon Director (2010)Maureen T. Liccione Director (2010)Hon. Peter H. Mayer Director (2010)Daniel J. Tambasco Director (2010)Scott M. Karson Past President Director (2008)Robert F. Quinlan Past President Director (2009)John L. Buonora Past President Director (2010)Barry M. Smolowitz Past President Director (2011)Sarah Jane La Cova 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 2007-2008

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 theAct of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 WheelerRoad, Hauppauge, NY 11788-4357.

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

DOROTHY PAINECEPARANOAcademy News

Eugene D. BermanJohn L. BuonoraDennis R. ChaseIlene S. CooperJustin Giordano

David A. MansfieldCraig D. RobinsJames M. Wicks

Frequent ContributorsThe 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 ofJuly and August, by The Long Islander Newspapers under the auspicesof The Suffolk County Bar Association.© The Suffolk County BarAssociation, 2007-2008. Material in this publication may not be storedor reproduced in any form without the express written permission ofThe Suffolk County Bar Association. Advertising offices are located atThe 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 11788-4357Fax: 631-234-5899

Website: www.scba.org E.Mail: [email protected]

Donors Purpose

Joseph A. Hanshe In memory of Mary Quinn, mother to James Quinn

Joseph A. Hanshe In memory of Lillian Kowalski

Joseph A. Hanshe In memory of Kristin G. McCarthy

Joseph A. Hanshe In Honor of the Memory of Lt. Michael P. Murphy, USNand his family, Medal of Honor recipient

Lorraine Gallagher In Memory of Joseph Gallagher

Joseph A. Hanshe On the retirement of the Hon. Joseph DeMaro, JSCNassau County, a great jurist and inspiration

We wish to Acknowledge those

who contributed to the

SCBA Charity Foundation

OPPORTUNITYArticles and Special Section Editors Wanted for:

For further information, please contact Editor Laura Lane at [email protected].

Date Special Section

2008 October Real EstateDecember Family and Matrimonial

2009February ElderApril EducationJune Women & the Law

_____________

By Laura Lane

James R. Winkler, the Suffolk CountyBar Association’s 100th president, is pas-sionate about his profession. He plans tobring this unyielding commitment to hisposition at the SCBA.

A matrimonial attorney, Mr. Winkler,59, believes it’s important to give some-thing back to your profession and hebelieves he has the temperament to makegreat strides at the bar.

“I like to think I have an ability to bringpeople together and find commonground,” he said. “We have amazing talentamong the lawyers in this association andI think that when you treat them withrespect, and value what they do, there’snothing they won’t do for this associa-tion.”

And he’s committed to reaching out tothe members and finding out what theproblems are, planning to take up theircauses when it’s appropriate to do so.

One of Mr. Winkler’s priorities is pursu-ing diversity within the bar. “I’d like toincrease minority participation in theSuffolk County Bar Association and try tofind out how we can help encourage youngmen and women to go to law school fromour minority communities in SuffolkCounty,” he said.

He’d like to go to the local school dis-tricts and impress upon students just thevalue of it to have attorneys in their com-munity and how important diversity iswithin the ranks of the profession.

“I’d like to work with Touro LawSchool to set up a task force or some vehi-cle to start looking at this in a seriousway,” Mr. Winkler said. “In my gut Ibelieve if you live in a diverse communityas we do in Suffolk County, our associa-tion will be enriched to be diversified.”

He points out that the profession hasmade great strides in increasing the num-ber of women, once a minority, in the bar,and in leadership roles. He said, “Morelaw school students are women and that

was an inevitable change. But it’s notinevitable with some of the other minoritypopulation.”

Mr. Winkler would also like to see moreattorneys join the SCBA.

“People who are involved in our associ-ation become better lawyers,” heexplained. “Lawyers learn to be betterlawyers over time. And the single mostimportant factor to becoming better is tointeract with other quality lawyers whocan serve as role models.”

Mr. Winkler was born in NewportRhode Island and moved to Long Islandwhen he was 2-years-old growing up inStony Brook. While attending PortJefferson High School he discovered hispassion for the law. He went to AlbanyLaw School and graduated in 1976. Mr.Winkler was admitted to practice in 1977.

His first job was with The Law Officesof Peter J. Costigan in Port Jeffersonwhere he stayed for 11 years working thelast two years as a partner. At Costiganand Winkler, he initially practiced realestate and some matrimonial litigation.But soon he found he was mainly practic-ing matrimonial litigation.

He formed Winkler, Kurtz, & Winklerwith his brother, Richard in 1989. Mr.Kuhn joined the firm as a partner in 2006.His firm, Winkler, Kurtz, Winkler &Kuhn, LLP practices matrimonial andfamily law and elder law and estates. Thefirm has grown to include two associatesand Peter J. Costigan has joined as council.

Although Mr. Winkler spends much

time with his prac-tice, and undoubt-edly will put in agreat deal of timeas the SCBA’s nextpresident, he’s afamily man who ishappy to spendtime with his wife Nancy, five children,and four grandchildren. In fact, there’snothing he enjoys more than gardeningwith Nancy, traveling a bit and golfing.

Currently, Mr. Winkler is workingclosely with President Elect Ilene S.Cooper and First Vice President Sheryl L.Randazzo on strategic planning for theSCBA for the next few years.

“We believe it is important to multi-yearplan,” he explained. “One year is insuffi-cient to accomplish very much so we wantto look at the next three to five years work-ing on the same page. Each president thatcomes up supports the previous adminis-tration. I will make sure that Barry has theability to continue what he’s worked on.People in our association have strongopinions of what they think should be done– we need to tap into those ideas, find con-sensus and let people fly with their ideas.”

Note: The author is the Editor-in-Chiefof The Suffolk Lawyer, an award-winningjournalist who has written for the NewYork Law Journal, the Herald Newspapers,and has published short stories. She is theDeputy Press Secretary for the NassauCounty Legislature.

THE SUFFOLK LAWYER — JUNE 2008 3

100th SCBA President Looks Ahead

________________________

By Christopher G. Gegwich

While spring is generally considered theseason of love, another regularly occurringphenomenon may be just around the cor-ner — the summer romance. While typi-cally limited to summer camp attendeesand vacation getaways in exotic locales,romance also arises just as frequently inthe workplace. For employers dealing withemployees involved in romantic relation-ships, this article discusses an alternativeoption in addressing these issues — just intime for summer.

Employees spend more and more time atwork, making the water cooler, happy houror the company sponsored picnic, allseemingly good options as any to findromance. A 2007 survey byCareerBuilder.com revealed that 40 per-cent of United States employees had dateda co-worker during their careers, with 20percent of them admitting to having doneit twice. Romance is not limited to onlyco-workers. Of the more than 6,700employees surveyed byCareerBuilder.com, 27 percent of themhad dated a supervisor. Not all of theserelationships can be characterized as“office flings” either, as 29 percent ofrespondents reported having married a co-worker they met at the job. Of course notall office relationships end happily everafter for employees or their employers.

Without question, workplace romancescan place employers at serious risk of dis-

crimination, retaliation and sex-ual harassment lawsuits.1 Evenwhen it appears that co-workersare nothing more than“friends,” problems may stillarise. In Pugni v. Reader’sDigest Association2 plaintiffalleged that her supervisor,whom she admittedly had beenclose friends with for a numberof years, subjected her to sexu-ally harassing behavior by fre-quently touching her arm,stroking her hair, commenting on herclothes and appearance and discussingpersonal matters over her objection. Indenying defendant’s motion for summaryjudgment, the court found “the notion thatany behavior no matter how offensive ispermissible between friends is utterlyunsustainable.” Moreover, while sexualfavoritism or preferential treatment givenby a supervisor to his or her paramour isnot usually actionable discriminationbased on gender3, even a consensual rela-tionship between an employee and a super-visor can, under certain circumstances,create a hostile work environment forother employees in the same workplace.4

With questions of potential liabilityswirling around office romances, someemployers may be tempted to ban suchrelationships altogether, or at the very leastto require employees to disclose relation-ships with co-workers to supervisors. Butimplementing such policies can create

sticky HR problems. In anyevent, such policies are difficultfor employees to follow andeven more incredibly difficultfor some employers to enforce.

Some years ago, JeffTanenbaum, Esq., the chair ofNixon Peabody LLP’s nationalLabor & Employment LawPractice Group, created a docu-ment for a client looking for an

alternative. Mr. Tanenbaumcalled the document a consensual

relationship agreement. Also known as anemployee relationship acknowledgement,these agreements have since entered thepopular lexicon as a “love contract.” Sucha contract can be a useful approach forminimizing the potential for discrimina-tion or harassment arising out of certainworkplace relationships. Love contractscan be particularly appropriate if the rela-tionship is already causing problems in theworkplace or when the relationship isbetween a supervisor and a subordinate.

A love contract is essentially a writtenagreement in which the romanticallyinvolved parties acknowledge the follow-ing:

Their relationship is voluntary and con-sensual.

They agree to abide by the employer’santidiscrimination, anti-harassment, andworkplace conduct policies (which aredescribed in, referenced in, or attached tothe agreement).

They promise to report any perceivedharassment to management, if it occurs.

They agree to behave professionally andnot to allow the relationship to affect theirwork.

They agree to avoid behavior thatoffends others in the workplace.

They agree not to engage in favoritism. Both employers and employees can ben-

efit from a well-drafted love contract andits execution can help eliminate sexualharassment in the workplace and limit lia-bility. The employees involved should begiven plenty of time to review the terms ofthe agreement and to ask questions inorder to avoid claims of duress or coer-cion. The employer should retain a copy ofthe executed agreement and provide acopy to each of the employees. Love con-tracts, while gaining popularity, are stillnew and are not appropriate for all work-place relationships. Certainly, employerscontemplating the use of a love contractshould discuss the circumstances withlegal counsel to determine if it is appropri-ate for the particular circumstances and, ifso, how it should be presented.

As workplace relationships abound,employers and their counsel shouldremember that resisting such develop-ments may be futile and ignoring themmay lead to liability. Employers howev-er, have some options for keeping theworkplace free of discrimination andharassment. In addition to anti-harass-

Love Contracts: Navigating The Office Romance

Christopher G.

Gegwich

James R. Winkler

(Continued on Page 19)

LABOR AND EMPLOYMENT LAW

Laura Lane


___________________

By: Wayne J. Schaefer

It’s a truism of labor and employmentlaw so familiar to practitioners that mostcan practically recite it in their sleep:“[j]ust as you are free to quit at any timefor any reason your employer is free toterminate your employment at any timefor any reason or for no reason at all.”This handy aphorism is intended todescribe the common law doctrine ofemployment-at-will, which in New Yorkholds that, in the absence of a bindingagreement as to duration, employmentcontinues at the pleasure of the employ-er and the employee and may be termi-nated by either party at any time. Martinv. New York Life Ins. Co., 148 N.Y. 117,42 N.E. 416.

Of course, an experienced practitionerwill be sure to also communicate certainnuances, which flavor the general rule.For example, even contracts without anexpress duration may give rise to a ter-mination cause of action where theemployee was induced to leave his or herpresent job in reliance on a promise bythe defendant that he would not be dis-charged without just cause; the promisewas reduced to writing; the employeerejected alternative offers of employ-ment and the employer acted in a mannerconsistent with an understanding that itwas bound by its promise. Weiner v.McGraw Hill, Inc., 57 N.Y.2d 458, 457N.Y.S.2d 193, 443 N.E.2d 441.(1982).

Alternatively, where the contract ispremised on a claim of a specific dura-tion of employment, the law does notrequire reference to a specific calendarperiod; see, e.g., Rooney v. Tyson, 91N.Y.2d 685, 674 N.Y.S.2d 616, 697N.E. 571 (1998) (oral contract to trainboxer “for as long as the boxer fightsprofessionally held to be for a definiteduration). Finally, there are myriad fed-eral, state and local states which protectemployees from termination as a conse-quence of discrimination based on mem-bership in a protected class; retaliationfor pursuing certain statutorily protectedrights and “whistleblower” complaintsas well as certain other protected activi-ties too numerous to mention here.

Still, in the absence of an exception,employment-at-will prevails and, if any-thing, employees have been viewed ashaving even greater flexibility in termi-nating the employment relationship.However a recent case demonstrates justhow easily such seemingly time honoredmaxims as the right to “quit your job atanytime, for any reason” can suddenlyseem suspect.

On April 7, 2006, 10 nurses employedat a Long Island nursing facility submit-ted their resignations after being advisedby an attorney that the facility was inbreach of their respective employmentcontracts. A Suffolk County Grand Juryreturned indictments against each of thenurses for one count of Conspiracy inthe Sixth Degree, five counts ofEndangering the Welfare of a Child andsix counts of Endangering the Welfare

of a Physically Disabled Person. Theirlawyer, in addition to being charged aspart of the above indictment, was addi-tionally charged with solicitation in theFifth Degree, purportedly because of hisalleged efforts in soliciting or importun-ing the nurses to resign. Previously, theNew York State Education Department,in September of 2006, after two hear-ings, rejected the employer’s complaintthat the nurses had abandoned patients.The Suffolk District Attorney’s officehas conceded that no patients wereinjured as a result of the resignations.

As part of an omnibus motion, defen-dants moved to dismiss the indictment,bringing to the fore a threshold issue:how can the criminal action be recon-ciled with decades of federal and statelabor policy that holds that labor dis-putes are to be resolved by the appropri-ate regulatory agencies— with minimalinvolvement by the courts? These policydeclarations are memorialized in statuto-ry law of long standing; see, the Norris-LaGuardia Act (29 U.S.C. §§ 101-115);New York Labor Law § 807 (1). Onmotion, the defendants even dusted offthe Thirteenth Amendment arguing thatsince the abolition of slavery “it hasbeen illegal to convict a person of acrime based upon quitting his or her job”(People v. Jacinto, Indict. No. 00769(B-K)-07, (Sup. Ct. Suffolk Co., September28, 2007)). The court rejected this argu-ment seemingly out of hand, holding“[u]nder no view of the facts of this casecould it be said that the People wereseeking to compel defendants continuedemployment by any particular entity”(id). However, defendants continued topress the issue, this time in the guise ofan Article 78 proceeding seeking a writof prohibition barring the criminal pros-ecution from going forward.

The Appellate Division SecondDepartment issued an order staying thecriminal proceeding until the Article 78proceeding is determined on April 14,2008. In that underlying proceeding coun-sel for the petitioners (the defendants inthe criminal case) have made it clear thatthey will argue that the Supreme Court iswithout jurisdiction to resolve what is, inessence, a labor dispute and that exclusivejurisdiction lies with the administrativeadjudicator of federal labor law — theNational Labor Relations Board.

The labor and employment bar willcontinue to monitor this case closely.They’ll eager to see whether the endresult can be legitimately reconciledwith existing precedent or whether incontrast, it will herald an opening inwhat has, until now, seemed a fairlyuncontroversial body of law.

Note: The author is a member of LawOffices of Wayne J. Schaefer, LLC; witha practice specializing in all aspects oflabor and employment law, with officeslocated in Hauppauge. He would like tothank Mark A. Manello, J.D., for hisresearch assistance in the preparation ofthis article.

People v. Vinluan:

Prosecutorial Interference

or a Reasonable Response?


Law Office of

FREDERICK EISENBUD6165 Jericho Turnpike

Commack, New York 11725-2803(631) 493-9800

Fax: (631) 493-9806Email: [email protected]

Website: www.eisenbudlaw.com

While I will miss my friends and colleagues at Lamb & Barnosky,

I am returning to my own practice in order to be able to accept

all categories of environmental cases, which I was unable to do

because of conflicts of interest with municipal clients of the firm.

I look forward to assisting members of the Bar to deal with

any type of environmental problem their clients may face.

Effective July 1, 2008

Frederick Eisenbud

Will Re-Open the


_________________

By Jessica Chiclacos

Whether it is a tradition or a necessity,summer welcomes the entry into the work-force of thousands of new employees,including many seasonal, temporary, andstudent hires. Although these employeesmay be short-term hires, the manner inwhich an employer treats them may createlong-term problems. This article discussessome of the obvious (and less obvious) pit-falls to hiring these types of employees.

Pre-Hire IssuesEmployee Verification: Prior to having

an applicant work one day, it is importantthat an employer verify whether or notthat potential employee is authorized towork in the United States by having everyemployee complete an EmploymentEligibility Verification Form I-9. OnNovember 7, 2007, the U.S. Citizenship& Immigration Services released a new I-9 Form. The major changes made to the I-9 Form are contained in the lists of docu-ments acceptable for establishing identityand employment eligibility. For example,the following documents can no longer beused as appropriate documents for verifi-cation: Certificate of U.S. Citizenship,Certificate of Naturalization, AlienRegistration Receipt Card, ReentryPermit and Refugee Travel Document.1Because of the severe penalties associat-

ed with the incorrect comple-tion of the I-9 Form such ascriminal and monetary penal-ties, an employer who has anyquestions regarding its com-pletion or the appropriatenessof documents should seek legaladvice.

Age Limitations: As theschool year ends, many stu-dents and minors seek to enterthe workforce for the summerseason. An employer in NewYork is limited to the number of hours andduties that a minor can perform. For exam-ple, minors under 14 cannot be employedat any time, neither after school nor duringvacation; minors 14 and 15 years old maywork after school hours and during vaca-tions, but not in factory work; and, minors16 and 17 years of age, if not attendingschool, may work full time throughout theyear. Moreover, an employment certificateor permit is required for minors under 18before they may begin work. Minors canobtain age certificates from school author-ities, which the employer must then keepon file as conclusive proof of the worker’sage.2 An employer’s failure to verify agecan lead to civil penalties.

Post-Hire Issues:Meal and Rest Breaks: During the sum-

mer, employees may work less than a nor-

mal eight hour workday.However, an employer shouldbe aware that all employees whowork a shift of more than sixhours starting before 11 a.m. andcontinuing until 2 p.m. musthave an uninterrupted lunchperiod of at least half an hourbetween 11 a.m. to 2 p.m.Because meals are not countedas work time, employees do not

need to be paid for this time. Inaddition, employers are not

required to provide other breaks, such asrest periods or coffee breaks, to itsemployees. However, if an employer per-mits an employee to take a break up to 20minutes, the employee should be paid forthat time.3

Other Benefits: Another potential areaof concern is the applicability of anemployer’s benefits (such as vacationtime, sick and personal time, and healthbenefits) to temporary, seasonal employ-ees. Under the New York State LaborLaw, employers are not required to pro-vide their employees with these benefits.However, if an employer does have a pol-icy of providing these types of benefits toits permanent, full-time employees, theemployer must review its policy to deter-mine if temporary, seasonal employeesare entitled to the same benefits.

Record Keeping Requirements: Even if

an employee only works for a couple ofmonths, an employer must maintain thefollowing information concerning theemployee for at least three years underNew York law: (1) name, address andsocial security number; (2) hours workedby the employee; (3) gross wages; (4)deductions from wages; and (5) netwages.4 In addition, employers should beaware that there are additional recordkeep-ing requirements under federal law thatalso apply to short-term hires.

This article summarized some, but notall, of the potential issues that arise with thehiring of temporary and seasonal employ-ees. To prepare for the hiring of seasonalemployees, employers should review all oftheir policies to determine their applicabil-ity to short-term hires. If the policies differfor long-term and short-term employees, anemployer should create a checklist specificto its short-term hires.

Note: The author is a member of NixonPeabody LLP’s national Labor &Employment Law Practice Group workingin the firm’s Jericho office.

1A copy of the current I-9 Form can be found atwww.uscis.gov.

2See New York Labor Law §§ 130-132, 135.3See New York Labor Law § 162. 4See New York Labor Law § 195(4).

Long-Term Problems With Short-Term Hires

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By Dennis R Chase

In a move seen by insiders aspossible salvage of the Workers’Compensation Law followingdrastic changes in July of lastyear, the New York InsuranceSuperintendent, Eric Dinallo, can-celled a contract with Dr.Christopher R. Brigham to reviewthe impact of the AmericanMedical Association (AMA)impairment guides upon state workers’compensation claims. Strong opposition tothe implementation of the AMA Guides wasposed by the AFL-CIO (www.aflcio.org),the Workers’ Compensation Alliance(www.nyworkerscompensationalliance.org), the New York State Trial Lawyers’Association (nystla.org), and the InjuredWorkers’ Bar Association (iwba.org) onbehalf of injured workers, statewide.Instead, the existing basis for which deter-mining impairment and/or disability, the1996 Workers’ Compensation BoardMedical Guidelines, will be updated as pre-viously suggested by advocates for injuredworkers. Confirmation of the cancellationwas made last month by Bruce Topman,Executive Director of the Workers’Compensation Reform task force, appointedby former Governor Eliot Spitzer.

Although Topman suggests that the taskforce will develop new plans for adoptingimpairment guides to be utilized in connec-tion with recent changes in the law, manyseasoned practitioners are cautiously opti-mistic. Ask, however, a few practitioners fordetailed information on how the “new law”operates, and you are bound to receive dif-ferent answers... sometimes, drastically dif-ferent answers.

In September 2007, the Suffolk Academyof Law sponsored a continuing legal educa-tion seminar, which assembled some of thefinest legal minds in the compensation com-munity. In addition to practitioners from“both sides of the table,” the seminar wasattended by nearly all of the workers’ com-pensation judiciary in Suffolk County, andsome from Nassau as well. This was, per-haps, the most extraordinary collection oftalent, of human knowledge, that has everbeen gathered together, with the possibleexception of when Thomas Jefferson dinedalone.

The afternoon, however, suggested notmuch is known. While the law may be clearon how much and how often the maximumallowable indemnity benefit will change, lit-tle else is completely clear. Although the“new law” places caps on permanent partialdisability benefits, how these caps will actu-ally work is still open to question, and, ofcourse, litigation. Adoption of the AMAGuides was seen by many as the potentialfinal blow to an already crippled system.Although advocates for injured workers arehailing the rejection of the AMA Guides,contending their adoption would signifi-cantly reduce awards due injured workersand were inconsistent with a system basedupon wage loss, practitioners are unfortu-nately appearing before the Board withoutmuch guidance.

Brigham, the senior contributing editor ofthe Sixth Edition of the AMA Guides to theEvaluation of Permanent Impairment, was

hired last year to evaluate the cur-rent system in New York for eval-uating impairment. The AFL-CIOfelt “betrayed,” however, sincethere was a promise made duringthe negotiations leading up to the“new law” that the controversialguides would not be a part of NewYork’s reforms.

“It appears to us those ques-tions about the rightness of hav-ing Dr. Brigham do this became

somewhat of a distraction to moving theprocess forward,” Topman said. “The objec-tive is to get good, fair impairment guide-lines. If you weigh the overall objective, wewill look forward to a better result for theworkers if the distraction is put aside.”

Brigham was highly criticized by advo-cates for injured workers for his role in per-forming independent medical examinationson behalf of insurance carriers and employ-ers.

John F. Burton, a preeminent workers’compensation scholar, and professor emeri-tus at the Rutgers School of Managementand Labor Relations, recently told theWorkers’ Compensation Board, duringquestioning, that the basis for the AMAGuides was “hokum” and challenged asser-tions that the Guides were evidence based.Although the state will pay part ofBrigham’s $162,500 contract, Topman saysthat it is “premature to discuss the amount ofthe final payment.” Brigham cited numer-ous attacks on a blog published by theWorkers’ Compensation Alliance as a keyreason for being asked to scrap a projectupon which he did extensive work. “It ismost unfortunate that the New YorkWorkers’ Compensation Alliance has con-tinued to provide erroneous information ontheir blog relating to the AMA Guides andthose individuals involved in the study,”Brigham countered. Information providedon the blog was the impetus for a “cease anddesist” letter sent from Brigham and PhilWalker, an AMA guest lecturer and SanFrancisco-based defense attorney.

Topman advised practitioners a guide-lines advisory committee will work with theask force to set a new direction for usingimpairment guidelines “We’re going toresume our meetings of the advisory com-mittee, and we’re going to address variousoptions for impairment guidelines,” saidTopman.

The Workers’ Compensation Alliancehas urged the Chair of the Workers’Compensation Board to appoint a MedicalDirector to assemble a distinguished panelof physicians to help expedite updating theexisting 1996 Guidelines. The setting of afirm deadline would certainly be a blessingfor practitioners who have been appearingbefore the Board nearly six months after theoriginal deadline set for December 2007.

Note: The author is the current Secretaryof the Suffolk County Bar Association, a fre-quent contributor of The Suffolk Lawyer,and a partner with The ChaseSensale LawGroup, L.L.P. The firm, with offices inSuffolk, Nassau, and Queens Counties, con-centrates their practice in Workers=Compensation, Social Security Disability,Long Term Disability, Short TermDisability, and Disability Retirement.

Involvement of Injured

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On the Move...Matthew Zangwill has joined Ruskin

Moscou Faltischek, P.C. as an associate inthe firm’s Real Estate Department. Mr.Zangwill’s practice presently involvescomplex commercial real estate transac-tions including, but not limited to, the pur-chase, sale and refinancing of commercialproperties in the New York metro area aswell as drafting and reviewing commercialleases.

Meyer, Suozzi, English & Klein, P.C. ispleased to announce that Thomas R.Slome, Alan E. Marder and Jil Mazer-Marino have joined the firm’sBankruptcy, Creditors’ Rights andCommercial Litigation practice, Mr.Marder and Mr. Slome as Partners, andMs. Mazer-Marino as Of Counsel.

John Boklak has moved his office to4250 Veterans Memorial Highway, Suite235 East, Holbrook, NY 11741. The officephone number is still (631) 396-1980 andthe fax number is (631) 396-1983.

Garden City’s boutique litigation firm,Galasso Langione & Botter, LLP recentlyadded Jeffrey L. Catterson and MichaelF. LoFrumento as partners. The Firmshall now be known as Galasso, Langione,Catterson & Lofrumento, LLP. Our goodfriend and respected colleague Allan S.Botter Esq. will continue to be of counselto the Firm.

Harmon Lutzer opened his own prac-tice at 713 Main Street in Port Jeffersonafter spending 6 years in the SuffolkCounty District Attorney’s Office. He will

be concentrating on criminallaw but will also be handlinggeneral practice matters as well.He can be reached at (631) 938-1257 or on his cell phone at(516) 297-7087.

Raymond G. Keenan, a part-ner at Guercio & Guercio, LLP,joined the faculty of Touro LawCenter as an adjunct professorteaching Education Law in thespring 2008 semester. This marks a returnto Touro by Mr. Keenan, who served as theEditor-in-Chief of the Touro Law Reviewwhile enrolled as a student.

Smith, Finkelstein, Lundberg, Isler andYakaboski, LLP is pleased to announcethat attorneys Christin Harris andJonathan Marmo have joined the firm asassociates practicing in the areas of gener-al litigation, banking, domestic relations,municipal, contract, real estate, and crimi-nal law.

Jeffrey D. Herbst and Philip A.Kusnetz have joined Bryan L. Salamone& Associates P.C. as associates.

Gilberti Stinziano Heintz & Smith, P.C.is pleased to announce George C.D.Duke, has joined the firm as an associatein their New York City office.

Congratulations…Congratulations and best wishes to the

following incoming bar presidents:Barbara L. Nieroda, President of TheSuffolk County Women’s Bar Association;Jean Marie Gunderson, President of theSuffolk County Criminal Bar Association,

Karen G. Silverman, Presidentof The Suffolk CountyMatrimonial Bar Associationand Cynthia Vargas, Presidentof the Long Island Hispanic BarAssociation and to James R.Winkler, President of TheSuffolk County Bar Association.

Congratulations to JusticeJames C. Hudson for beingpresented with theDistinguished Justice of the

Year Award by the New York State BarAssociation’s Law Youth & CitizenshipProgram.

Congratulations to Charles C. Russowho will be presented with the 2008Root/Stimson Award by the New YorkState Bar Association. The award honorsan attorney whose dedication to communi-ty service and the profession.

To Donnalynn Darling, the Chair ofMeyer, Suozzi, English & Klein, P.C.’sPersonal Injury and Medical Malpracticegroups, and Chair of the firm’s EducationLaw practice who was honored by TouroCollege Jacob D. Fuchsberg Law Centerfor her public service and pro bono efforts.

To Scott M. Karson, Esq., a Lamb &Barnosky partner, who received an Awardof Recognition from the Suffolk CountyBar Association marking the conclusion ofhis 12 years of service as a Director of theAssociation on May 5, 2008.

Announcements, Achievements, &

Accolades…Lisa Renee Pomerantz, a member of the

2008 Women’s Expo Planning Committeeand Chair of its Education Committee, ledthe program Guerilla Marketing forEntrepreneurs & Whose Design is itAnyway? with Pat Lupino, a professor atNassau Community College at this year’sWomen’s Expo Education Workshop onJune 16 at the Centereach Library.

Thomas M. Volz, a Partner of Guercio& Guercio, LLP, will co-chair the programat this year’s New York State Associationof School Attorneys Annual Conference,at The Sagamore on Lake George.

Randy Glasser, a Partner in Guercio &Guercio, LLP, has been appointed to co-chair the Education Law Committee of theNassau County Bar Association.

Ruskin Moscou Faltischek, P.C.announced today that Team RMF showedits charitable spirit and commitment to theneeds of others with its outstanding partic-ipation in the Take Steps for Crohn’s &Colitis Long Island Walk on Saturday,June 7, 2008. Team members were com-prised of attorneys from RMF and theirfriends and families. The walk took placeat Marjorie Post Park in Massapequa, NewYork. Ruskin Moscou Faltischek alsomade a charitable donation to the worthycause.

Frederick J. Esposito, Jr., CLM, theDirector of Administration and Finance atMeyer, Suozzi, English & Klein, P.C.delivered a special presentation at the


(Continued on page 26)

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By Ilene Sherwyn Cooper

Appellate Division-Second Department

Attorney ResignationsGranted/DisciplinaryProceeding Pending:

Thomas V. Zacharia: Byaffidavit, respondent tenderedhis resignation, indicating thathe was aware that he is the sub-ject of an ongoing investigation by theGrievance Committee regarding two com-plaints of professional misconduct alleg-ing, inter alia, that checks drawn on hisattorney trust account at Citibank were dis-honored when presented for payment dueto insufficient funds. Respondent acknowl-edged his inability to successfully defendhimself on the merits against any chargespredicated upon his misconduct underinvestigation. He stated that his resignationwas freely and voluntary rendered, andacknowledged that it was subject to anorder directing that he make restitution andreimburse the Lawyers’ Fund for ClientProtection. In view of the foregoing, therespondent’s resignation was accepted andhe was disbarred from the practice of lawin the State of New York.

Attorneys Censured:

Janice L. Jessup: Application by theGrievance Committee to impose recipro-cal discipline upon the respondent basedupon disciplinary action taken against herby the Supreme Court of the State ofOhio. The Ohio Court directed the respon-dent to immediately cease and desist fromthe practice of law in that state due to herfailure to file a Certificate of Registration.In addition, the court issued an order sus-pending the respondent due to her failureto comply with the applicable CLE provi-sions of the Ohio Govt Bar Rule X andOhio Govt Jud. Rule IV. Notwithstandingthe Grievance Committee’s personal ser-vice of notice upon the respondent at herbusiness office, the respondent failed tointerpose any reply. Accordingly, thecourt found that there was no impedimentto the imposition of reciprocal discipline.Moreover, in the interim, the GrievanceCommittee moved to adjudicate therespondent in default for failing to serveand file a verified statement in response toits notice. The respondent still failed tocomply. As a result, the GrievanceCommittee’s motion was granted, and onits application to impose reciprocal disci-pline, the respondent was publicly cen-sured based upon her failure to abide byorders of a sister state.

Attorneys Disbarred:

Jason Cohen: On November 14, 2003,the respondent entered a plea of guilty, inthe United States District Court for theEastern District of New York, to conspir-acy to commit securities fraud and con-spiracy to commit money laundering. OnJune 3, 2005, he was sentenced to timeserved, followed by supervised release fora term of three years. He was also direct-ed to pay a criminal monetary assessment.The court found that the federal felony ofconspiracy to commit money launderingwas “essentially similar” to the New Yorkfelony of conspiracy to commit moneylaundering in the second degree, a class Cfelony. Accordingly, by virtue of his con-viction of a felony, the respondent ceasedto be an attorney and was automatically

disbarred from the practice oflaw in the State of New York.

Decisions Of InterestSecond, Ninth AndEleventh Judicial Districts

Robert M. Cronk: TheGrievance Committee for theNinth Judicial District servedthe respondent with a petitioncontaining nine charges of pro-fessional misconduct and the

matter was referred to a Special Referee.The Referee sustained the charges againstthe respondent and the GrievanceCommittee moved to confirm. On March13, 2007, the respondent was suspendedfrom the practice of law based upon hisfailure to cooperate with the GrievanceCommittee’s investigations, his ownadmissions under oath and other uncontro-verted evidence of professional miscon-duct. The respondent, although dulyserved with the Grievance Committee’smotion papers, neither submitted a replynor requested additional time to do so. Thecharges alleged, inter alia, that respondentfailed to comply with one or more lawfuldemands of the Grievance Committee,failed to supply the Grievance Committeewith bookkeeping records in respect to hisattorney escrow account, failed to accountfor funds deposited into and disbursedfrom his attorney’s escrow account, madeimproper cash withdrawals from hisescrow account, failed to obtain court per-mission to withdraw as counsel in a crimi-nal proceeding, and failed to re-registerwith the Office of Court Administration.In determining the appropriate measure ofdiscipline to impose, the respondentadmitted that he made mistakes but main-tained that he was not guilty of venal con-duct and posed no danger to the public.The court noted that he never fullyaccounted for the activity in his escrowaccount. Respondent further maintainedthat his participation in a 12 step programallowed him to conquer his addictions.Notwithstanding the foregoing, the courtheld that the respondent was guilty of seri-ous misconduct, and under the totality ofcircumstances, ordered that he be suspend-ed from the practice of law for an addi-tional period of two years.

Attorneys Disbarred:Steven Lipton: On June 5, 2007, the

respondent entered a plea of guilty, in theUnited States District Court for theSouthern District of New York, to onecount of Possession of Child PornographyTransported in Interstate or ForeignCommerce, a class C felony. OnSeptember 26, 2007, he was sentenced to aterm of imprisonment of 60 months, fol-lowed by three years of supervised release.He was also directed to pay a fine in thesum of $15,000 and an assessment of $100.The court found that the federal felony was“essentially similar” to the New Yorkfelony of Possessing a Sexual Performanceby a Child, a class E felony. Accordingly,by virtue of his conviction of a felony, therespondent ceased to be an attorney andwas automatically disbarred from the prac-tice of law in the state of New York.

Note: The author is a partner with thelaw firm of Farrell Fritz, P.C. where sheconcentrates in the field of trusts andestates. In addition, she is President-Electof the Suffolk County Bar Association anda member of the Advisory Committee ofthe Suffolk Academy of Law.

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They came from as far away as NewJersey, Manhattan, Westchester, andConnecticut and they came in droves.They came to remember the greatest work-ers’ compensation attorney to walk theearth. They came to pay tribute to the man,the myth, the legend. They all came to seethe memory of his name bestowed uponanother... the next generation, if you will,of gentlemen in the industry, VictorPasternack, Esq. (Brecher Fishman, NewYork, NY). Nearly two hundred friends,colleagues, and family members attendedthe Seventh Annual DLWP (Dinner,Libations, Without Pomposity) Dinner onFriday, May 9, 2008 to raise awareness,funds, and to honor Richard’s spirit and allfor a really great cause... 1 in 9: The LongIsland Breast Cancer Action Coalition.Proceeds from the fundraiser were againdonated to the Long Island charity in thename of Kathy Pizza, late wife of col-league, Anthony Pizza, Esq.

This year’s fundraiser was held at theposh Crest Hollow Country Club and allhad a great time. The frivolity of the annu-al event had absolutely nothing to do withthe traditional five-hour open bar.Richard’s spirit was well represented inthe presence of his wife Glenda, his sonJeffrey and Jeff’s wife, Lori. Furthermore,Richard’s firm, Cherry, Edson & Kelly(Carle Place) occupied nearly half theroom, or at least that’s the way we all felt.The evening traditionally filled with footloose humor and good-natured ribbingtook an air of almost certain distinction asthis was the first year the honoree wouldbe presented with the Richard D.

Guttentag, Esq. Memorial Award. VictorPasternack, Esq., this year’s recipient, wasequal to the challenge of receiving such adistinguished honor. While the award waspreviously bestowed upon individuals torecognize their “generally quirky behav-ior,” when changing the name of theaward, we changed its purpose. The awardis now bestowed upon a member of theindustry that best characterizes the spirit ofRichard Guttentag as a “gentleman” of theindustry. This is not to say, however, therehaven’t been previous recipients that wereladies or gentlemen in the industry.Moreover, the award itself has become allthe more distinguished when coupled withRichard’s name.

In 1990, the chance of developing breastcancer for a woman living on Long Islandwas one in nine. Today, it is one in eight;and, in parts of Suffolk County, one inseven. Progress has been made, but notenough. We are fighting an uphill battle.Yet, at 1 in 9, we believe that we can win.Since 1990, 1 in 9: The Long Island BreastCancer Action Coalition has been commit-ted to fighting the cancer epidemic througheducation, outreach, environmental advo-cacy, spearheading changes to legislationaffecting cancer issues, and continuouslyraising money to support innovative epi-demiological cancer research projects atCold Spring Harbor Laboratory. We inviteyou to read about 1 in 9’s 10 years of mile-stones at 1in9.org and hope that you willjoin us in our efforts.

In this, the seventh year of the DLWPDinner, we have raised well over $100,000for this worthwhile cause while simultane-

ously raising awareness within the work-ers’ compensation community. Togetherwith your help, this will not be the end, butmerely the beginning of a bright newfuture for men and women across LongIsland. Many thanks to this year’s emcee,Mark Allen, Esq. (Goldberg & Allen,LLP, Melville, NY) and the balance of thedais including Brian O’Keefe, Esq. (Grey& Grey, LLP, Farmingdale, NY), Kenneth

Larkin, Esq. (Stanton & Guzman, LLP,Garden City, NY), William Turley, Esq.(Turley, Redmond & Rosasco, LLP,Ronkonkoma, NY). A very special thanksto immediate Past President Barry M.Smolowitz, Esq. for his leadership, dedica-tion, and endless and valuable advice inthe planning and execution of a very suc-cessful event.

DRC

Richard D. Guttentag, Esq. Remembered... Fondly

The American Bar Association is ask-ing state and local bar associations tosupport rules that would allow militarylawyers to represent service personnel incivil matters in state courts other than instates where the lawyers are licensed.

ABA President William H. Neukomand retired Marine Corps Gen. EarlAnderson, chair of the ABA StandingCommittee on Legal Assistance toMilitary Personnel, pointed out in the let-ter that when service members are the tar-get of unfair practices, the mere availabil-ity of in-court representation by militarylawyers could often lead to a negotiatedresolution.

They further urged state and local barassociations to remove other barriers tocourt access for military lawyers. Servicemembers may be unable to afford civilian

representation, or the legal disputes maybe relatively minor, but “even small legalburdens can create enormous distractionswhen added to the special burdens facedby military families,” said Mr. Neukomand General Anderson.

Accompanying the ABA letter was onesigned by the judge advocates general ofthe Air Force, Army, Navy and MarineCorps. The judge advocates general notedthat when local businesses know that mil-itary lawyers cannot do more than writeletters and request negotiations, servicemembers often find themselves unable toachieve a fair resolution of even the mostfrivolous legal issues.

Both letters request the state and localbar associations to support local versionsof the ABA Model Rule to expand legalassistance for military personnel.

LEGAL BRIEFState and Local Bars Must Remove Barriers forMilitary Lawyers in Local Courts

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By Rhoda Selvin

Donald R.Sallah, who was the Pro BonoAttorney of the Month in November 2003,has continued to help those in need bygiving a remarkable additional 310 hoursin six cases on record. The Pro BonoProject could not wait another ten yearsbefore honoring him again.

Having closed four matrimonial casesin the last five years and with two moreopen, he stands again as Pro BonoAttorney of the Month for June 2008. Ofall these cases, the most time-consuming,which required 102 hours, was the mostinteresting.

“I was almost sorry when it was over,”Mr. Sallah declared. “It was fun.”

His client had come to the United Statesto join her American fiancée, who was thefather of the child she was expecting. Thebaby, who was two-and-a-half when themother came to PBP, was born on LongIsland; the couple married some time afterthat. The husband, however, soon beganthreatening his immigrant wife and droveher out of the house. He filed for an annul-ment, accusing her of abuse. He also saidthat he was incapable of consenting tomarriage due to the pain medication hewas taking after back surgery and that if hecould not have an annulment he wanted adivorce. His wife went to court to obtainan Order of Protection, due to his abuse,which was granted. The judge sent her toMr. Sallah, who sent her to the PBP officeto get into the official pro bono system.

The client had also applied for a greencard, which required her husband’s signa-ture because, being a homemaker, she hadno other sponsor. He however, withdrewhis support. Thus, she needed the Order ofProtection not only to keep her abusivehusband away but also in order to applyfor the green card without sponsorship.Meanwhile, the husband’s lawyer drew upa grossly one-sided post-nuptial agree-ment, claiming in it that the wife had cho-sen not to be represented; fortunately, shedid not sign it. As part of the husband’scampaign to get her to sign, he said hewould withdraw the divorce action. Shedid not wait for his next move.

With Mr. Sallah representing her, shefiled for divorce based on the provenabuse and received an outcome thatdelighted Mr. Sallah. The outcome of herdivorce included maintenance, child sup-port, primary custody, a car, and two yearsof college education paid for by her ex-husband.

Mr. Sallah, the son and grandson ofattorneys, had a very different careerbefore he became an attorney. From 1958to 1972, he was a rock musician, playingthe guitar in a band that toured clubs alongthe East Coast. In the 1960s, while contin-uing his musical career, he went back toschool. After graduating from NassauCommunity College in 1965, he enteredAdelphi University and received his B.A.in 1967. From there, he studied law atnight, graduating from St. John’sUniversity School of Law in 1972. In hisfirst job, he prosecuted criminal cases asan Assistant District Attorney of SuffolkCounty. When he opened his own firm in1975, the Sallah Law Firm, P.C. inHoltsville, he concentrated largely onmatrimonial and family law. Admitted tothe bar in Florida as well as New York,Mr. Sallah has participated in trials innumerous matrimonial actions not only inthese states but in other states and PuertoRico as well. He hasn’t entirely given uphis music though. He still plays his guitarat home and at parties.

A member of the Suffolk County BarAssociation and the Suffolk CountyMatrimonial Bar Association, Mr. Sallahlectures in the Suffolk County Academyof Law and at local schools.

The Sallah legal dynasty continues! Thethree oldest Sallah children are attorneysand the fourth starts his freshman year atFlorida Gulf Coast University in the fallintending to major in legal studies. It willbe a while before the younger two decideon their careers.

Having such a reliable and effectiveattorney on its panel is a boon to the ProBono Project and to the indigent citizensof Suffolk County. It is a pleasure tohonor Donald R. Sallah as Pro BonoAttorney of the Month for the third time in15 years.

Donald R. Sallah

Attorney of the Month

Former musician makes a difference

PRO BONO

Donald R. Sallah working to serve the less fortunate.

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MOTIVATIONAL

Change Can Make

for an Excelsior LifeShifting your mind for success_________________

By James F. Gesualdi

Everything in life gets betterwhen you get better, and noth-ing in life gets better until youget better.

– Larry Winget

Different isn’t always better,but better is always different.

– Dale Dauten

Excelsior! This Latin termmeaning “ever upward” is one of the sim-plest yet powerful “words of life.” It sug-gests an ongoing spiritual commitment tohigher levels of whatever good one isseeking.

This word, Excelsior, has also beenNew York State’s official motto since thetime of American independence. Theword is prominently featured on a brightwhite ribbon draped across the lower por-tion of the center of the State flag and itsgreat seal.

In challenging times, it is easy toneglect the promise and potential of thatlone word, Excelsior. It can be all too easyto overlook or smooth over our own fail-ings that light the path for our own growthby joining people eager to falsely elevatethemselves through the diminution of oth-ers. Perhaps most easily forgotten is thefundamental truth that each and every oneof us is able to live a meaningful lifemarked with an Excelsior spirit.

As a lawyer, every day I am mindful ofthe commitment to advise and representmy clients to the best of my abilities. As aprofessional providing services for a living,this commitment to do one’s best can alsobe a matter of long-term economic viabili-ty. Most importantly, as an individual, thecommitment to doing and being one’s bestoffers an exciting challenge one can under-take by consciously choosing to do so.

Over the years, I have been fortunate tobe able to invest time into much learningboth within and outside the law. Some ofthis learning has come through reflectingback upon my own failings or mistakes.Other lessons have presented themselvesthrough growth forcing opportunities.Attending, listening to and reading allsorts of programs has also helped in manyways.

One powerful lesson is the simple real-ization that change is inevitable. Everymoment something changes. Somechanges cannot be avoided but overall onecan do much to direct and shape thechange in their life (or to create better out-comes as a result of other changes). In thissense, change is essential to living with anExcelsior spirit. Change can be good.

Before continuing to provide someworthwhile information on a usefulresource for realizing an Excelsior exis-tence, an admission is necessary. Earlierin my legal career, though always seem-ingly committed to self-improvement andprofessional development, I was notalways enamored with change. Therewere times when faced with the periodicand sometimes unwelcome prospect ofhaving to change or shift offices that I

would ignorantly mutter, “Iloathe change.” Well, that posi-tion has changed as change,particularly that which onedesires to create, can indeed bevery good and life enhancing.Yes, an Excelsior spiritrequires change.

At another point in my legalcareer, after having embarkedon establishing my own homebased solo practice, a raremotivational slump prompted a

search for answers. Those answers camein the form of a book by Steve Chandler,100 Ways to Motivate Yourself: ChangeYour Life Forever. That book inspiredpositive change and led to reading mosteverything that Chandler has written.Several of those books have been amongthose often recommended to friends andcolleagues. Particular favorites are:Reinventing Yourself: How to Becomethe Person You’ve Always Wanted to Be,RelationShift: Revolutionary Fundraisingwith Michael Bassoff, and the novel withSam Beckford, The Small BusinessMillionaire: A Novel of Heartbreak andProsperity (from Robert D. ReedPublishers).

For those interested in tools for trans-formation, Chandler, also a songwriter,has just released a sort of greatest hits col-lection, “Mindshift: The Ultimate SuccessCourse”. This 10 session (MP3 or CD)recording provides a refresher for thosefamiliar with his work and a wonderfullyinspiring foundation for newcomers(available athttp://www.stevechandler.com/index.html).

In “Mindshift,” Chandler suggests thatpositive change and growth occur when amind is open to the world of possibilitybecause such an open mind can shift up tothe next level of thinking. Individuals canconsciously initiate shifts and thereby cre-ate a better self or outcome. Upon listen-ing to and then reviewing this programafter a second run through, this and otherideas were applied and tested.Breakthroughs in productivity and rela-tionships have resulted while shifts essen-tial to health and well-being have laggedsomewhat. Nevertheless, Chandler’s con-cepts are well worth a listen. As Chandlerputs it, the ideas are meant to “course”through you as a river on its journey andnot to be an ordinary “success course.”

Our thoughts influence our choices andthose choices (or failure to make them),create our reality. Chandler states, “It’swhat I think about what happens thatmakes me feel the way I do.” Words arethe building blocks of thoughts and exertgreat influence upon our actions.Chandler suggests considering the differ-ent impacts certain words have on how weview situations. Compare, for example,“worry” versus “concern,” “problem” ver-sus “opportunity,” the latter words imply-ing expression that is more constructiveand thus are more likely to generate posi-tive action. Likewise, “interest” (or “willtry”), and “commitment” (or “will do”).

James F. Gesualdi


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__________________

By Michael S. Brady

As vacant land becomes scarce inmany parts of the United States and asstates and municipalities act to restrictand regulate new construction, the valueof development rights has skyrocketed.As used in this article, “developmentrights” means unused rights to develop aproperty to the extent permitted understate or local law. In recent years, somestates and local governments have adopt-ed rules permitting unused developmentrights to be transferred to another parcelwithin the regulated area that may beused to construct improvements, such asa building with greater floor space orheight than would be permitted in theabsence of those development rights. Asa result of the rules permitting develop-ment rights to be transferred to otherparcels, an owner of excess developmentrights may reap a substantial financialwindfall by selling the transferabledevelopment rights (“TDRs”) to theowner of another parcel who desires todevelop the other parcel.

Of course, where there is a potentialgain, there is a potential tax and the ques-tion arises whether gain resulting from a

sale of TDRs can be deferredby exchanging TDRs for a feeinterest in real property underInternal Revenue Code(“IRC”) Section 1031. Moreprecisely, are TDRs “like kind”to a fee interest in real proper-ty? In Private Letter Ruling200805012 (hereinafter, the“PLR”), the Internal RevenueService (“IRS”) addressed thatquestion squarely. In its analy-sis, the IRS noted that “[t]he types ofproperty rights and interests that consti-tute interests in real property... for pur-poses of § 1031 are broad” and that“[w]hether property constitutes real orpersonal property generally is determinedunder state or local law.” Having saidthis, the IRS went on to analyze the twoissues commonly addressed in a realproperty like kind analysis: (i) the natureof the rights represented by the TDRs(e.g., whether TDRs constitute an interestin real property), and (ii) the duration ofthe rights obtained under the TDRs.

In determining whether the TDRs con-stituted an interest in real property, theIRS noted that certain tax statutes in thestate in which the TDRs were located

treated TDRs as real property.“Although it is unclearwhether Development Rightsare treated as interests in realproperty for all purposes” ofstate law, it was clear that sec-tions of state’s tax statute andregulations “treatDevelopment Rights as aninterest in real property.”Moreover, a local administra-tive agency had held that a

transfer of development rights was sub-ject to state gains tax as a transfer of realproperty. As such, the TDRs in questionconstituted an interest in real propertyunder the state’s laws.

Having concluded that the TDRs con-stituted an interest in real property, theIRS considered the duration of the rightsobtained under the TDRs, because aninterest in real property must be of suffi-cient duration to be considered like kindto a perpetual fee interest in real proper-ty. With regard to the duration question,the IRS found that:

“....various sections of the localOrdinances cited by Taxpayer providethat Development Rights are as-of-right

and not discretionary, meaning that theyexist permanently rather than at the dis-cretion of a city agency or other decision-making authority. As such, these rightsappear to be analogous to perpetualrights. Similarly, Taxpayer representsthat a deed transfer is similar to the per-fecting of Development Rights, whichinvolves an actual transfer of rights fromone property to another. For instance, thetransfer of Development Rights must beverified by filings with City’s DCP,which may require recording of certaineasements as a condition of the transferof Development Rights on certain prop-erties.”

The IRS also noted that, similar to adeed, the transfer of development rightswas subject to transfer taxes imposed byboth the municipality and state in whichthe TDRs were located.

As a final matter, the IRS consideredwhether the taxpayer’s use of the TDRsto benefit a property already owned bythe taxpayer presented a problem in theproposed exchange. Citing Rev. Rul. 68-394, 1968-2 C.B. 338, a case in which ataxpayer acquired a tenant’s leasehold


A Way Around “Fair Price”_____________________

By Gregory J. Popadiuk

In a recent New York State SupremeCourt, Nassau County case decided onJanuary 29, 2008, the court articulated aremedy for a defendant insurance carrier,which had untimely denied a plaintiffhealth care provider’s no-fault reimburse-ment claim based on fraudulent billing.

Insurance carriers have been confinedby the strict parameters of Fair PriceMedical Supply Corp. v. Travelers, whichheld that fraudulent billing (i.e. billing forservices or supplies not actually providedto an eligible injured person) is not adefense based upon lack of coverage andtherefore a carrier must either pay or denyfirst party no-fault benefits within thirtydays of receipt.1 Failure to do so wouldresult in the carrier being precluded frominterposing a defense in a lawsuit to recov-er assigned first party no-fault benefits.2

In Carnegie Hill Orthopedic Services,P.C. v. Geico, the Supreme Court, NassauCounty granted the plaintiff’s motion forpartial summary judgment on two of itsfifty-three causes of action for no-faultbenefits.3 The court begrudgingly fol-lowed Fair Price and determined thatGeico’s assertion of fraudulent billing wasnot a lack of coverage defense. Therefore,Geico was obligated to either pay or denythe plaintiff’s claims within 30 days ofreceipt.4 However, in what appeared to bean attempt to dispel fraudulent billingpractices, it also denied plaintiff’s motionfor partial summary judgment on Geico’scounterclaim for fraud. Geico’s allegationsof fraud included “fabricating injuries, fal-sifying medical records to justify surgerybilled for but not performed and perfor-mance of procedures/surgeries which

risked harm to patients,” by Dr. AllenChamberlin, the principal of the plaintiff,Carnegie Hill Orthopedic Services, P.C.and owner of Devonshire SurgicalFacility.5

By allowing Geico’s counterclaim forfraud to withstand plaintiff’s motion forsummary judgment and to be litigated fur-ther, the court provides some authority andguidance to insurance carriers in dealingwith established case law and obviousfraudulent billing.

The decision recognizes the often-over-looked fact that a carrier might not havethe ability to fully investigate a provider’sbilling practices and procedures within therequisite 30 days to determine whether toissue payment or a denial. Fair Priceunequivocally stated that the carrier wasaware of the fact that services renderedwere not provided within the thirty days ithad to pay or deny the claim.6 In thisregard, the court in Carnegie Hill may alsobe indirectly recognizing a provider’s oreligible injured person’s potentially pro-longed delay in cooperating with any suchinvestigation, if at all. For instance, a carri-er may correctly request examinationsunder oath or independent medical exami-nations and then subsequently issue a time-ly denial based on non-cooperation shouldthe particular individual not appear.However, doing so would in effect permitthe non-cooperation or failure to appear topotentially cover up any indicia of fraudu-lent billing. Arguably, a situation couldarise where the carrier is completely limit-ed by non-cooperation in ascertainingwhether fraudulent billing has occurredand not only could it be in breach of thethirty day pay or deny rule but could con-ceivably never amass any information to

establish a fraudulent billing scheme toassert, let alone prevail, on a counterclaim.

Despite the court’s unhesitant adher-ence to Fair Price, which it is bound tofollow, and not classifying fraudulentbilling as a lack of coverage defense, it iscareful not to enunciate what would beconsidered sufficient proof or indicia offraudulent billing in order for an insurancecarrier to prevail on a counterclaim forfraud. For instance, the Carnegie Hillopinion notes that Dr. Chamberlin’s med-ical license had previously been revokedand that he was the subject of an inquirymade by the New York State Board forProfessional Medical Conduct.7 The opin-ion states that Geico submitted anaffirmed report of Dr. Craig Levitz whodetermined that Dr. Chamberlin “carriedout an extensive and pervasive practice offraud which included fabricating injuries,falsifying medical records to justifysurgery billed for but not performed, andperformance of procedures/surgerieswhich risked harm to patients.”8 By con-trast, the Fair Price decision, which albeit,did not deal with a carrier’s counterclaimbased on fraudulent billing, noted thatthere was simply a signed statement fromthe eligible injured person stating that hedid not receive the medical supplies billedfor by the provider.9 It would seem thatunder either scenario, a carrier’s counter-claim for fraud would be meritorious, ifnot successful.

The court’s decision provides limitedguidance for an insurance carrier whendealing with evidence of provider billingfraud. While it may highlight a carrier’s ordefense lawyer’s frustration with fraudu-lent billing, because the issue is not one oflack of coverage, the court need not strug-

gle with the decision of whether to award aprovider no-fault benefits when there areclear indicators of fraudulent billing. Itdoes not suggest how a carrier might bebetter able to ascertain fraudulent billingwithin 30 days nor does it even questionthe appropriateness of the 30-day pay ordeny requirement in such situations.

It is far too early to ascertain whether thecourt’s decision in Carnegie Hill wouldgive some leverage to the carrier whendealing with a fraudulent billing scheme.The burden of production and persuasionwould still rest with the defendant. Whilethe court’s decision does not deviate fromthe requirement of paying or denying aclaim within thirty days of receipt despiteevidence of fraud, it rightfully provides anopportunity for the carrier to fully litigateas to no-fault benefits that it should nothave been compelled to pay.

Fair Price is presently before the NewYork State Court of Appeals.

Note: The author is a graduate of TouroCollege, The Jacob Fuchsberg Law Centerand an associate at Bruno, Gerbino &Soriano, LLP, located in Melville, NewYork.

1 Fair Price Med. Supply Corp. v. TravelersIndem. Co., cert. granted 10 N.Y.3d 745 (2008), 42A.D. 3d 277, 278 (2d. Dept. 2007)

2 Id. 3 Carnegie Hill Orthopedic Services P.C. v. Geico

Ins. Co., 2008 N.Y. Slip Op. 50639, Pg. 1, (N.Y. Sup.Ct., Nassau (2008).

4 Id. at 5. 5 Id. at 2. 6 Fair Price, 42 A.D. 3d at 285.7 Carnegie Hill, 2008 N.Y. Slip Op. 50639 at 2. 8 Id. 9 Fair Price, 42 A.D. 3d at 279.

FOR THE DEFENSE

REAL ESTATE

Exchanging Property You Didn’t Know You HadIRC §1031 exchanges of transferable development rights for real property


Michael S. Brady


Clapton’s Blistering Beach Blanket Blues___________________

By Dennis R. Chase

Clapton and his touring band, DoyleBramhall II (guitar/vocals), ChrisStainton (keyboards), Pino Palladino(bass), Ian Thomas (drums), SharonWhite (backing vocals) and MichelleJohn (backing vocals), finished their 11show tour on June 5 at the Nikon JonesBeach Theater in Wantagh, New York.

Given the musical diversity that spanshis 45-year career, they could have deliv-ered a show, pleasing to most, thatincluded all the popular cuts from hisrather extensive catalog. To his credit,Clapton treated the 15,000 or so in atten-dance to the type of music that most res-onates with him... the blues, both electricand acoustic, that dominated this two-hour, 19-song set.

Best of all, the tickets were FREE. Yes,that’s right ladies and gentlemen... FREE(as in my second favorite four letterword, and get your mind right out of thegutter, because number one is still cash).A great debt of thanks is owed to greatfriend, Marketing Director extraordinairefor RivkinRadler, Laurie Bloom. Laurieis fond of saying we went to the samehigh school together separately, havingonly met one another at our 20-year highschool reunion. Let’s see, the first showLaurie shared with us was The Stones atGiants Stadium, and now Clapton at theBeach. I’m thinking Zeppelin will be theonly band that can follow.

Although it has been nearly 25 yearssince Clapton last played this venue, itdidn’t take all that long for Clapton to gethis mojo working. Although the 63-yearold British guitar legend began thingsnice and slow with “Tell the Truth” and“Key to the Highway,” Clapton’s talentwas obvious with “Hoochie CoochieMan” and a stellar cover of JimiHendrix’s “Little Wing.” Clapton’smagic made “Outside Woman Blues” and“Double Trouble” far more special thanwe could have possibly imagined.Clapton’s aggressive new rhythm sectionwell suited these thick and gritty tunes.Underscoring Clapton’s intense guitar

work was a smoking, potent cover ofWilson Pickett’s “Don’t Knock MyLove.”

“Rambling On My Mind” was the firstof the three-song sit down acoustic setwith Hoagy Carmichael’s “RockingChair” considerably slowing down thepace of the acoustic mini-set. Clapton,however, quickly picked up the paceagain for a more rocking “MotherlessChild.” It is obvious that Clapton adoresthe blues. He shone like a star and a manin love with his job on “Little Queen ofSpades” and “Before You Accuse Me.”For the last three tunes, Clapton reachedfor crowd favorites like “WonderfulTonight,” “Layla,’” and a raucous ver-sion of “Cocaine.”

Clapton closed the show with the oneand only encore number – “I’ve Got My

Mojo Working” – which he played along-side opener, Robert Randolph, on pedalsteel guitar.

“On this night, he summoned athrilling performance by focusing onwhat he felt rather than what he feltobligated to play.” I read an online quoteevaluating the show that I thought wasmost apropos, “my wife and I were there,it was a magnificent evening. WatchingEric play... especially on his bluessongs... is like watching Da Vinci paint amasterpiece. Each note is meaningful andfrom the heart.” Thanks, Marc. Thatseems to sum things up nicely... howcould one not be impressed. As we weredriving to the show, I called good friendand guitar maestro in his own right,Wayne Schaefer, and asked what wecould expect this evening. Wayne, with-out hesitation, claimed, “When you seeClapton, you’re simply witnessing thegreatest blues guitarist... ever.” Whenyou’re right, Wayne, you’re right.

Note: The author is the currentSecretary of the Suffolk County BarAssociation, a frequent contributor ofThe Suffolk Lawyer, and a partner withThe ChaseSensale Law Group, L.L.P.The firm, with offices in Suffolk, Nassau,and Queens Counties, concentrates theirpractice in Workers= Compensation,Social Security Disability, Long TermDisability, Short Term Disability, andDisability Retirement.

HOT PICKS

Eric Clapton recently played at Jones Beach.

Exchanging Property YouDidn’t Know You Hadinterest on property he already owned asreplacement property for certain otherproperty that was condemned, the IRSconcluded that “….it is not material thatthe property acquired by the taxpayer asthe replacement property is on propertyalready owned by that taxpayer so longas it is acquired in an arm’s length trans-action.”Implications

Given the IRS’s analysis above, itwould appear that a taxpayer could selldevelopment rights for other like kindreal property just as easily as the taxpay-er might purchase development rights asreplacement property. (See, e.g., PLR8141112 in which exchanger sold agri-cultural land development rights to stateas relinquished property.) Thus, in cer-tain instances, residual development

rights should be considered for exchangein the event that the taxpayer does notplan to use them in the future. Of course,any such transaction should be consid-ered only after careful consideration oflocal laws governing TDRs in the juris-diction in which the taxpayer ownsinvestment property. A taxpayer may notrely upon a private letter ruling, so cau-tion is warranted and competent taxadvice should be obtained in connectionwith any such transaction.

Note: The author is an officer of theSuffolk Academy of Law. He is also theVice President of Operations — EasternRegion for Asset Preservation, Inc. AssetPreservation, Inc. Preservation, Inc. is aleading, national Qualified Intermediaryfor IRC §1031 Tax-deferred Exchanges.

(Continued from page 12)


Photos by Barry Sm

olowitz

FREEZE FRAME

Former SCBA President and elder law attorney George Roach, right, lectured at a recent

meeting that co-chairs, Rose M. Elefante-Link and Vincent W. Ansanelli, III, attended.Nancy Clifford, the president of the Brehan Society spoke at a Huntington Lawyer’s dinner,

which Judge William Rebolini, center, and the club’s president, Charles Berg attended.

Photo by Karen A

nne O’D

onnell

Photo by Solo & Sm

all Firm Practitioners com

mittee

Free CLE seminars, a public servicepresentation on the economy, scores oflaw-related exhibits, loads of raffles andprizes, and lots of delicious food: all ofthese and more comprised the 2008 LegalTrade Show sponsored by the Suffolk andNassau County Bar Associations in con-junction with State Bank of Long Island.Held at the Hilton Hotel in Huntington onMay 21, the trade show drew hundreds oflawyers, who seemed to enjoy the day’smany complimentary amenities. The three

CLE’s – George Roach on “Long TermHealth Insurance,” Marian Rice on“Conflicts and Waivers,” and RobertGuido on “Banking and Bookkeeping” –drew standing-room-only audiences. Andthe exhibit booths seemed to attract inter-ested visitors all day. From the perspec-tives of the attendees, the vendors, and theprogram planners, the day can be deemeda huge success. And – not an insignificantbenefit – each bar association received a

The Long Island Legal Trade Show:

Well Attended and Well Received


Barry Smolowitz (right), then SCBA

President and the program chair, with

one of the exhibitors

Glenn Crisafi (right) with Teddy Roosevelt

look-alike, a personification of the trade show’s

Americana theme.


SCBA Installation Celebrates A New Year


_______________________

By William E. McSweeney

The TravelsBy Marco Polo. With maps and index380 pp. Penguin Classics. $13.95.

Talk of fore thinkers, talk of visionaries!He was too pragmatic to prohibit prostitu-tion – a species of prohibition timelesslyunenforceable – so he instead regulated it,infusing its profits into the coffers of hiscourt in Khan-balik (now, Beijing). He sub-sidized farmers – exempting them from trib-

ute during fruitless years, while contributingto them, from the state granary, all that theyneeded; he bestowed food and clothing onthose who had been impoverished by illnessor misfortune, thus providing social securi-ty. He tolerated more, encouraged the prac-tice of all religions, those of NestorianChristian, Saracen, Jew and idolater, andeclectically drew from all of them their ownparticular world views, religious and secu-lar, thus liberally educating himself. Heestablished a paper currency backed by hisnear-limitless treasury of silver, gold, rubies,

emeralds – that brought economic stabilitythroughout vast Cathay’s 34 provinces, and,in so doing, concomitantly encouraged tradefrom the West. He set up a national highwaysystem and a pony-express service wherebyhe could receive news of an event within aday of its occurrence. He suspended for sixmonths of each year – a span embracingestrus – all hunting of beasts, so that theycould increase and multiply, thus ensuring anever-ending stock of game. He initiated amilitary chain of command so efficient that,by his conferring with a mere 10 generals,he could, on the instant, mobilize 200,000warriors.

Socially and religiously liberal; a prag-matist; a life-long student; an economist; aone-worlder; an engineer; an environmen-talist; a military strategist. The man?Kubilai Khan –The Great Khan. The year?1271. In which year Marco Polo firstattended Kubilai’s court, whence he beganhis two-decade term of service as TheGreat Khan’s emissary.

Two misfortunes that befell Polo – thedeath of his mother and, some 30 yearslater, a jail sentence – would bring aboutThe Travels, two misfortunes that wouldtransmute, by a successful alchemy, into agreat fortune, literary gold, for the westernworld. His mother’s early death woulddestine the 17-year-old Venetian toaccompany his father and his uncle –Niccolo and Maffeo – to Kubilai’s court,where the older merchants had alreadytraded with the Great Khan and hadalready established a bond with him. The

bright suggestibleyoung man was aquick study, instant-ly displaying a com-mand of court proto-col, rapidly master-ing the languages ofthe provinces.

It was Marco’s exceptional powers ofobservation that especially impressed theGreat Khan. Equally important, Marcowas sensitive and perceptive. He under-stood that the insatiably curious Khan hun-gered for, demanded, information collater-al to that pertaining to the mission at hand.Marco’s charge, then, was always a two-fold one: on his return from any givenassignment, he was first to give a fullaccount of the business on which he hadbeen sent, and was then to recount all theremarkable things he had seen on the way.Kubilai was a stern schoolmaster; Marcowas to prove an able student.

Kubilai sent him far a field, with a viewtoward monitoring his lord’s business: theprogress of the mining of coal, gold, andsilver; the fertility of the wheat, barley andrice fields; the overall state of loyalty tothe Great Khan among the lesser king-doms. No less important, Marco wastasked with closely observing those peo-ples beyond The Great Khan’s realm –their numerosity, fears, beliefs, supersti-tions, industriousness and underlyingmoral fiber. In short, Marco was to cata-logue all of those qualities that would


Some Notes From A Genoese Jail

___________________

By David A. Mansfield

A recent change in the policy by theSuffolk County District Attorney’s Officewill result in “as charged’ offers on allreckless driving cases under Vehicle &Traffic Law §1212.

The collateral consequences of a con-viction for reckless driving are:• a misdemeanor or criminal record, • five moving violation points as mandat-

ed by 15 NYCRR Part§131(4)(i) and • as an unclassified misdemeanor, a sen-

tence of probation for of up to 3 yearsand up to 30 days incarceration for afirst offense within 18 months. It can beup to 90 days on a second offense andup to 180 days on a third offense.

• the fines for a first offense range from$100 to $300,

• the second offense $100 to $525,• the third conviction is $1,000 to $1,125.

There are several significant trap doorswhich defense counsel should be able toadvise their client regarding possiblelicense sanctions.

Vehicle & Traffic Law §510 or §1212does not provide a mandatory revocationor suspension but conviction of a violationof §1212 may result in license sanctions.Your client will be subject to a mandatory60-day license suspension if the offense iscommitted during the probationary licenseperiod under §510-b (1)(2) within sixmonths of passing your road test forlicense restoration following a revocation

even if served with a condition-al or restricted license.

Reckless driving is alsodefined as a serious traffic vio-lation under §510-c (4) if com-mitted by the holder of a ClassDJ or MJ license or permit itwill be subject to a mandatory60-day license or permit sus-pension.

Should your client commit areckless driving offense withinsix months of full licenserestoration for a probationary license sus-pension, the sanction will be a minimumsix-month revocation for Class D licenseholders §510-b (2) and a 60-day revoca-tion of a Class DJ or MJ license or permitas per §510-c (1) (b).

If your client is convicted of two othermisdemeanors or speeds within the 18month period of the date of offense of thereckless driving case, it will trigger amandatory revocation under Vehicle &Traffic Law §510(2)(a)(v). Your clientwill be deprived of the safety net of arestricted-use license or privilege.

A revocation for reckless driving willresult in a denial of an application for thefour years preceding application for arestricted-use license for work, school andother purposes under §530(2) and 15NYCRR Part §135.7(2).

A third reckless driving conviction in 18months will result in a mandatory mini-mum 6-month revocation of the driver’s

license. A client in this situationwill probably find the licensingconsequences as the least oftheir problems.

Your client could be subjectto a §510 Safety Hearing con-vened by the Department ofMotor Vehicles by way of anadministrative hearing that willbe held in their county of licens-ing under §510(3) for the grossnegligence of operating a motorvehicle or motorcycle in a man-

ner of reckless disregard for the life orproperty of others. The Department ofMotor Vehicles could impose a 31-daysuspension if the five points put yourclient over the 11-point limit for 18months as per 15 NYCRR Part§131.4(c)(1). Your client will probablyfare better on a persistent violation orpoints suspension than an individual hear-ing on the conviction.

The Administrative Law Judge willconvene the hearing and investigate theparticular conviction. The rules for theseparticular hearings are governed by 15NYCRR Part 127. The AdministrativeLaw Judge could then impose a discre-tionary license suspension or revocationbased upon a review of the overall factsand circumstances.

You’ve seen the posted signs in thework zones that state that if you get twoconvictions for speeding in a work zoneyour license will be subject to a mandato-

ry suspension as per VTL§510(2)(b)(xiii). It provides for a manda-tory 60-day driver license suspension. Thelaw does not specify whether each offensehas to be committed within an 18-monthperiod.

Increased surcharges of $50 and $55 inTown and Village Courts will take effectJuly 1, 2008 for traffic infractions forVehicle & Traffic Law §375. Other trafficinfractions will be a maximum of $70 persummons except when an additional $30is added for Sections 385-8, 385-9, 385-10& 401 if the non-registrant operator wasserved and the registrant did not respondto the original ticket.

Surcharges for violation offenses of thePenal Law in the Town and Village Courtswill increase to $125 with District Court at$120. Misdemeanor surcharges notincluding DNA fees or Sex OffenderRegistration fees will rise to $200 in theDistrict Court and $205 in the Town andVillage Courts.

Felony conviction surcharges notincluding DNA fees or Sex OffenderRegistration fees will rise to $325. Andeffective August 1, 2008, Section 1192-1or 1192-5 surcharges will increase to $275and in the Town and Villages Courts$280.

VTL §1192 Misdemeanors surchargeswill increase to $420 in the Town andVillage Courts and $415 in District Court.VTL §1195 Felony surcharges will go up

Work Zones and Increased Surcharges

Speakers Bureau

AcknowledgmentsThe following members of the SCBA conducted speaking engagements through

the SCBA Speakers Bureau in the past 12 months:

Richard F. Artura, Esq. – Lindenhurst Public Library – Bankruptcy/Foreclosure; Regina Brandow, Esq. – LI Chapter of Selective Mutism Group – Interactionbetween parents and students; Lewis C. Edelstein, Esq. – Lindenhurst Public Library – Elder Law/EstatePlanning; Steven A. Kass, Esq. – AARP – Elder Law Issues;Cornelius S. Rogers, Esq. – Bridghampton Public Library – Forensics – CSISolving Crimes;Trudie Katz Walker, Esq. – Ward Melville High School – Trademarking ;Scott Zerner, Esq. – Cold Spring Harbor High School – Plea Bargaining inExchange for Testimony.

BOOK REVIEW

DMV/DWI

William E.

McSweeney

David A. Mansfield



________________

By Craig D. Robins

In my column last month, I providedsome background information on JudgeAlan S. Trust, who was sworn in on April2, 2008. Two weeks later, Robert E.Grossman was sworn in as our other newbankruptcy judge. He began sitting on thebench on May 1, 2008. These judgesreplace Judge Melanie Cyganowski andJudge Stan Bernstein, who both retiredfrom the bench last year.

Association Hosts Meet and GreetThe Suffolk County Bar Association

sponsored a “meet and greet” event lastmonth to introduce our two new bank-ruptcy judges to the bankruptcy bar.Several dozen bankruptcy practitionersattended, eager to meet and greet the newjudges.

Judge Grossman Just Sworn InJudge Grossman, like Judge Trust, hails

from a practice that concentrates in com-mercial and corporate bankruptcy mat-ters.

Before ascending to the bench, JudgeGrossman was a partner at Duane MorrisLLP, a large, national, business-orientedfirm with about 650 attorneys. There hepracticed in the area of corporate law,business reorganization, financial restruc-turing and litigation. A significant part ofhis practice focused on providing advice

to troubled or newly restruc-tured companies and investors,with respect to their financingneeds.

He began his legal career asa government lawyer at theSecurities & ExchangeCommission in Washington,D.C. enforcing laws pertainingto corporate finance. Beforejoining Duane Morris, JudgeGrossman was chair of therestructuring practice group atArent Fox, another large national firm. Agraduate of Rider University, he earnedhis J.D. in 1973 from Brooklyn LawSchool.

Judge Grossman was also a recent vicechair of the International SecuredTransactions and Insolvency Committeeof the American Bar Association, Sectionof International law.

Judge Grossman Entertains CrowdEngaging in informal discussions with

the attorneys at the meet and greet, JudgeGrossman told stories about his some ofhis cases, attorneys he had dealt with, andhis children.

In discussing his bankruptcy practice,Judge Grossman commented that he trulyliked bankruptcy matters and felt totallycontent working in this field. His practiceinvolved cases primarily in the SouthernDistrict, and he believed that “crossing

the border” meant going tocourt in New Jersey.

Addressing some of hisphilosophies about practicinglaw, he commented on theimportance of treating counseland adversaries with respectand emphasized that he wouldexpect no less from attorneysappearing before him. “I willtreat litigants and those whocome before me as I would liketo be treated,” he said.

He also emphasized that lawyersshould be prepared, that they should suc-cinctly explain their case, and that theyshould keep things moving, noting that“delay doesn’t do any good.”

He also shared some information abouthis family – he has twin daughters, onewho married five years ago and one whojust got married. One of them had twinsherself. He joked that he was glad hisdaughters got married and was now look-ing forward to spending more time withhis large-screen TV.

So Does Judge TrustJudge Trust also held court with those

eager to learn more about him. However,contrary to Judge Grossman, Judge Trustwas slightly more reserved about his per-sonal life, but joked about it saying, “therest of the info about me is still sealed.You’ll have to file a FOIL request to get

anything.”A native of Texas since 1984, Judge

Trust explained that it was proper proto-col in Texas courts for counsel to ask thejudge, “may I be excused,” at the conclu-sion of their case. When asked if heexpected counsel here to do so, he joked,“it depends how much you want tobrownnose.”

Judge Trust highlighted his desire todevelop a more efficient way of runningthe Courthouse and how cases there areprocessed. Citing an example, he said,“we’ve all paid attention to consumerpractitioners by scheduling lift staymotions on dates when we anticipateyou’ll be in the Courthouse.”

He also noted that he posted some veryspecific chambers rules, which can beviewed on the Court’s official website.He drew attention to a new rule that tele-phone calls to chambers are now prohibit-ed. Saying that, “some people will calland some will not, I want to eliminate theperception that there will be some advan-tage to calling chambers.” He alsothought that chamber’s staff is too busy tohave to deal with calls and would be bet-ter off spending time dedicated to movingcalendars along. He said that if counselwanted to make a request, they could doso by e-mail.

Judge Trust also commented that hewas hoping to create an open dialogue

New Bankruptcy Judges Meet Bankruptcy BarAnd former Chief Judge jumps firms

CONSUMER BANKRUPTCY

THE SUFFOLK COUNTY BAR ASSOCIATION’S

2008 ANNUAL OUTING RAFFLE

FOR THE BENEFIT OF

THE SCBA PRO BONO FOUNDATION

1st Prize: LG 42” LCD Television

2nd Prize: Two tickets to Jets Home Game at the Meadowlands, fall 2008

(with T-shirts and sundry items) AND

Two tickets to Mets vs. Houston Astros on August 25, 2008

3rd Prize: Ruvo Restaurant Gift Certificate (Greenlawn or Port Jefferson)

AND Basket of Cheer

RAFFLE TICKET PRICE: 1 TICKET FOR $5.00; 5 TICKETS FOR $20.00

Drawing to be held at the SCBA’S Annual Outing, Monday, August 11, 2008.

WINNER NEED NOT BE PRESENT TO WIN.

Contact Sheryl Randazzo at (631) 673-4998, e-mail: [email protected]

to purchase tickets.


Craig D. Robins

__________________

By Dennis R. Chase

Let’s be fair to Dave. The food at hisrestaurant, Campari, is GREAT. DavidEldridge, long time SCBA member andattorney for nearly 20 years, and his love-ly wife, Diane D’Amaro, recently boughtthis downtown Northport trattoria-pizzeriaand business is booming. Why shouldn’tbusiness be booming with their location onMain Street across from the John W.Engman Theater, an incredibly warm staff,and Chef Antonio Reyes perfecting won-derful Italian dishes sure to please even theharshest critic.

To be perfectly honest, I was expectingmore pizzeria than trattoria, but we all

were pleasantly surprised... and don’tworry, you see, meet, and love Davebefore the end of your sumptuous meal.Dave is not only an owner and the pastrychef, but waits tables and frequents dinersoften during their meal just to ensure theirhappiness with the experience. For theunbelievers, and there will be some, sinceI like to consider myself a long time friendof Dave’s, having shared the trip to andback from hell (actually from Washington,D.C. where the rear hatch of the bus takingus back to the airport opened in the middleof the freeway, spilling luggage onto thehoods of cars behind us and all over theroad and the plane barely landed back atthe Airport in Islip having nearly suc-

cumbed to one of themost violent thunder-storms in recent memo-ry) a few years... makethat six years ago on atrip sponsored by theSCBA & NCBA joint-ly. Who knew the pricefor being admitted onto the United StatesSupreme Court wouldnearly cost us our lives,or more importantly,our luggage?

If you need furtherproof, check outNewsday’s review ofthis charmingNorthport hot spot, in a Newsday reviewby Joan Reminick at http://www.news-d a y . c o m / e n t e r t a i n m e n t / d i n -ing/138528,0,1882052.venue. Reminickdescribes Chef Antonio Reyes as seeming“to be just hitting his stride.” With the din-ner “auspiciously beginning with warmfocaccia and/or addictive little garlic rollsfresh from the pizza oven’” and “a greensalad, gratis with entrees, being sprightlierthan most.” Whether ordering from the vastselection of bubbling pasta dishes servedbeneath a mantle of molten cheese, or theroasted half chicken, all dishes arrivesteaming hot. Dave, by the way, yes we alllove our entrée to arrive fresh and hot, per-haps as a n attorney, some disclaimersdelivered along with the meals providingample warning to diners regarding thesereally hot plates. And yes, there are vege-tarian dishes... and not just good vegetariandishes, but GREAT vegetarian dishes.

The service is not only warm and friend-ly but incredibly professional as well. Thestaff knew the menu well and carefullydescribed any dish on the menu and thelong list of specials. Now a warning of myown... SAVE ROOM FOR DESSERT!Dave’s desserts made fresh daily are almostcertain to please any palate. I am perhaps

overly partial to the lighter than air, yetequally tasty tiramisu. There is somethingon the menu for everyone and each dish isbetter than the last. Dave, I always knewyou were a great lawyer, but where did youlearn the pastry chef thing? All four of usdining that evening were very pleasantlysurprised... and we’ll be back... and backagain many, many more times.

Campari is located at 225 Main Street, inNorthport (631-757-6700). Lunch: Tuesdayto Sunday from11:30 a.m. to 3:00 p.m.; din-ner: Tuesday to Sunday from 5:30 p.m. to10:00 p.m. Later in the summer when thetheater is open. We suggest reservationsbecause every time we were there, therewasn’t an open table in the house... and it’sno wonder... the experience is divine.

Note: The author is the currentSecretary of the Suffolk County BarAssociation, a frequent contributor of TheSuffolk Lawyer, and a partner with TheChaseSensale Law Group, L.L.P. Thefirm, with offices in Suffolk, Nassau, andQueens Counties, concentrates their prac-tice in Workers= Compensation, SocialSecurity Disability, Long Term Disability,Short Term Disability, and DisabilityRetirement.


RESTAURANT REVIEW

Local Lawyer Makes Good... Food That Is!

Judiciary Night

Thursday, Sept. 18 6 p.m.Join the SCBA in honoring our judiciary at the Hyatt

Regency Wind Watch in Hauppauge. Call the Bar forfurther information at 631-234-5511.

OPPORTUNITYThe Suffolk Lawyer is seeking a law school student

interested in writing a monthly column regarding issuesof interest to our future attorneys. The opportunity is anon-paying position granting the student clips and jour-nalism experience. If interested, contact editor LauraLane at [email protected]. Please include a sam-ple of your writing and contact information.

BRIEF

GOOD THINGS LAWYERS DO

Mock Trial Volunteers

SCBA member David Eldridge, who owns Campari, with his

wife, serving members of the SCBA.

SCBA Attorney members and judgeswho volunteered to serve as judges in theNew York State 2008 High School MockTrial Tournament sponsored by the NewYork State Bar Association and theSuffolk County Bar Association :

Hon. Salvatore A. Alamia; Peter J.Ausili; Hon. Toni A. Bean; Karyn E.Bell; Mitchell Birzon; Eric J. Bressler;Bryan E. Cameron; Kevin B. Campbell;Dennis R. Chase; Tina M. Chenery; Hon.Dennis Cohen; James W. Corrigan;Steven A. Costantino; Hon. Andrew A.Crecca; Yvonne DeBenedetto; WilliamA. DeVore; Wayne J. Donovan; Brian C.Doyle; Robert W. Doyle; Daniel T.Driscoll; James F. Fagan; Hon. JosephFarneti; Hon. Patricia M. Filiberto;Richard L. Filiberto; John P. Finnerty;Hon. James P. Flanagan; Neil M. Frank;Leonard M. Grenci; G. Ronald Hoffman;Hon. Richard Hoffmann; David M.Kaufman; Hon. John Kelly; Michael C.Kennedy; Howard E. Knispel; Bryan P.Kujawski; Garrett R. Lacara; Hon. StevenA. Lotto; James A. McDonaugh; Robert

R. Meguin; Scott D. Middleton; Scott M.Mishkin; Susan Joan Mitola; Glenn A.Obedin; Cornelius S. Rogers; Ira S.Rosenberg; Ted M. Rosenberg; JamieRosner; Robert J. Savage; John P.Schettino; Ronald C. Schule; KennedthM. Seidell; Hon. Sandra Lynne Sgroi;Arthur E. Shulman; Joseph K. Strang;Frank A. Tinari; Hon. John J. Toomey,Jr.; Richard D. Winkler; Edward R.Young; Marjorie E. Zuckerman.

The following attorney membersserved as coaches to high schools:

Gerard Donnelly, Hon. Aletha Fields-Ferraro, Elizabeth M. Harrington, DavidLazer, Louis E. Mazzola, JohnMcGeehan, Brian C. Mitchell, LauretteD. Mulry, Alan Polsky, Lisa R.Pomerantz, Ettore Simeone, David J.Sobel, Michelle Soricelli, Michael C.Tromello.

East Islip High School was the winnerof the Suffolk County Final, the LongIsland Regional Tournament, and theNew York State Finals which were heldin May in Albany.

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

THOMAS MORE GROUPTWELVE-STEP MEETING

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

All who are associated with the legal pro-fession welcome.

LAWYERS COMMITTEEHELP-LINE:

631-697-2499

Change Can Make for an Excelsior LifeChandler refers to the deliberate use ofwords to prompt action as employing the“language of intention”.

Chandler’s core teaching is that one can“Mindshift” to become a creator or ownerof their life and thereby improve any orevery aspect of life. The all too common-ly accepted alternative is to muddlethrough life endlessly reacting to circum-stances, events and others without utiliz-ing the creative power readily accessiblewithin. He calls this enlightened andeffective behavior living with an “owner-ship spirit” (not unlike the suggestedExcelsior spirit).

One point of particular application forlawyers relates to the power that thingshave when committed to writing. Forexample, when one receives a bill or evenlegal papers the written form seems totrigger an elevated need to react orrespond. This sometimes hampers one’sability to look at the written material anddiscern how to best create a desired out-come. Chandler recommends that one’sgoals be written because of the heightenedrespect for things in writing.

Writing down the benefits of attainingone’s goals is an easy way to elevate one’sdesire or motivation. Chandler is con-vinced that it is one’s desire or how muchthey “want to” do or attain something thatis most critical. The “how to,” he adds,always appears to those who “want to”badly enough.

Chandler also recites many interestingstories from his prior work including littleknown examples about Frank Sinatra, andhis own encounters with people like

Arnold Schwarzenegger long before thesuccesses of his last two careers.Underlying many apparently natural suc-cesses are tremendous investments ininvisible work that culminated in so called“unfair advantages.”

Chandler’s teachings provide simpletools to take control over one’s journeythrough life. In consciously creating ourown lives, we can also do many things thatelevate our business and personal relation-ships. Service to others is the highest call-ing whatever the endeavor. Being mindfulof that eliminates unproductive attemptsto live up to other’s expectations ormoments where fear gets in the way.

Rather than struggling with the impossi-ble task of managing other people,whether children or employees, Chandlersuggests “managing agreements” betweenpersons are both more enlightened andeffective. Instead of trying to controlanother, find ways to agree on actions oroutcomes. The agreement then replacesthe individual as something that can bemanaged in lieu of someone who cannot.

Technically, the informality of the“Mindshift” sessions helps Chandler con-nect in a very personal way. Most of theprogram has the feel of a conversation witha wise and trusted friend secure enough tobe truthful. The one segment where thisfeel disappears is when Chandler reads anentire chapter from one of his books on the“Commitment to Spirit.” The material issolid, but the extended reading disconnectsChandler and the listener and some of thebenefits of this intimate recording aremomentarily lost.

The “Mindshift” program is not anaudio version of a book. Similarly, there isno accompanying workbook (likely arelief for those who tend not to use them atall or to their fullest). An outline or subjectindex, perhaps with cross-references to theChandler library and other cited materials,would be helpful. A transcript of thesometimes apparently stream of con-sciousness, yet always engaging, programwould be an indispensable reference forfurther review. The value of an index ortranscript is probably greater as Chandlerdoes not proceed through the sessions in alinear or logical fashion. Although thatdeliberate approach may foster creativebreakthroughs, it may also make it diffi-

cult or frustrating for some listeners tobest appreciate the content. Chandler andpublisher Maurice Bassett have nowaddressed this concern in the form of afree E-book summary, Powerful GracefulSuccess, available via the website.

Steve Chandler’s “Mindshift” can helpone examine and take, as Chandler callsis, “ownership” of one’s life. The creativeability to do that is within us always.Excelsior!

Note: The author is a solo practitionerin Islip. His practice is concentrated onanimal welfare law and he can be con-tacted at (631) 224-4801 or by email [email protected].


This column is dedicated tothe various opinions of SCBAmembers. Submissions willbe accepted from all membersof the SCBA.

_______________

By: Justin Giordano

Rising oil prices and thecustomary Congressionalhearings

The summer of 2008 isexpected to yield continuationof the escalating gasolineprices that have been steadily on the risesince the beginning of the year. As of thiswriting (May 2008) the national averageprice for a gallon of regular gasoline is justslightly under $4.00. The culprits are read-ily identified by those of a particular polit-ical bend (more precisely those of the left-ist persuasion), namely the all-powerfulAmerican petroleum and energy industryand of course its voracious and ever plot-ting executives.

The above mentioned group’s motiva-tion is unequivocally the pursuit and ful-fillment of a specific agenda and thissupercedes any and all other concerns.Finding a solution is thus of secondaryimportance if it figures within the frame-work of their objective at all. This group

has seen its ranks swelled bymany a self serving politicianwho, while not being devoutideological believers, arenonetheless intend on not beingleft behind as this potentiallybountiful politically correctgravy train rumbles into the sta-tion with all of its cacophonousfanfare. In addition, a goodsprinkling of well meaning, if illinformed as pertains to basicfree market economics princi-ples, individuals from all stripes

including non-left leaning politicians, pun-dits and others have also come on board.Willingly and happily providing the afore-mentioned fanfare and cacophony is theso-termed major media, which tirelesslypromotes the caricature of the villainous“oil company and oil executive.”

It is in this climate that the average citi-zen deprived of sensible proposed solu-tions is encouraged to feel as a helplessvictim of the almighty and unfeeling oilindustry that the solution becomes evident,a congressional hearing. Consequently theU.S. Senate and House of Representativesduly summoned senior executives fromthe five American major oil industry com-panies to testify in front of the aforestatedbodies on May 21 and May 22, 2008

respectively. Ostensibly the aim of both ofthese bodies, or more specifically therespective committees charged with theseinquests, was to get to the root of the prob-lem, namely what is causing the sustainedand substantial surge at the pump. Theoverwhelming presumption going in onthe part of those charged with summoningsaid executives was that the latter must beguilty of a nefarious conspiracy to gaugethe unsuspecting populace. It should benoted that congressional and related hear-ing and inquiries have been conducted on

a quasi-regular basis over the past two orthree years every time prices have spikedup, and each and every occasion the resultshave been the same, namely no illicitactivity, price gauging, etc. of any kind hasever been found. The unfounded allegationis nevertheless consistently evoked in spiteof the outcomes to the contrary. Thus newhearings remain the reflexive and go-toreaction of choice to cynically and simul-taneously quell and fan the fires of outragefor the intended audience while unrelent-


COMMITTEE CORNER

AMERICAN PERSPECTIVES/OPINION

Editors Note: In last month’s issue,the number of people that attended theSolo & Small Firm Practitioners meet-ing was incorrectly reported. Nearly 20people attended the meeting. TheSuffolk Lawyer regrets the error.

News & Notes from SCBACommittees

Solo & Small firm PractitionersRose M. Elefante-Link andVincent W. Ansanelli, III, Co-Chairs

The committee met on May 14 and

enjoyed a lecture by former SCBA Presidentand elder law guru George Roach, whospoke on elder law and its practical applica-tions to small firm practice. Committeemembers were not only informed but alsoentertained by Mr. Roach’s candid discus-sion of the importance of planning as we,and our clients, age.

To celebrate the end of the year, and Mr.Ansanelli’s and Ms. Elefante-Link’s finalmeeting as chairs, the members shared achampagne and chocolate reception andtoasted the committee members continuedjourney as friends and colleagues.

The Law Of Supply And Demand:

A Law That Defies Legislative Remedy

(Continued on page 21)Justin Giordano

ment training and the enforcement ofexisting policies, under the appropriatecircumstances, a consensual relationshipagreement—or love contract—may bean additional logical and progressivesolution.

Note: The author is a member of NixonPeabody LLP’s national Labor &Employment Law Practice Group work-ing in the firm’s Jericho office.

1Giminiani v. City of Albany, No. 99-CV-2161,2005 U.S. Dist. LEXIS 43910 (N.D.N.Y. Aug. 24,2005); Perks v. Town of Huntington, 251 F. Supp. 2d

1143 (E.D.N.Y. 2003).2No. 05-CV-8026, 2007 U.S. Dist. LEXIS 26284

(S.D.N.Y. Apr. 9, 2007).3DeCintio v. Westchester County Med. Ctr., 807

F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 965(1987).

4Fella v. County of Rockland, 297 A.D.2d 813,815, 747 N.Y.S.2d 588, 590 (2d Dep’t 2002) (recog-nizing that a hostile work environment may be foundwhen it is perceived that sexual favors are the “quidpro quo for promotions and other benefits”);Hernandez v. Research Found. of the City Univ. ofNew York, 2007 N.Y. Misc. LEXIS 8976 (Sup. Ct.N.Y. Cty. Dec. 13, 2007).

Love Contracts: NavigatingThe Office Romance (Continued from page 3)


A Celebration of Accomplishments, New Beginnings, and the LawSmolowitz with the “obligatory gold cufflinks” given to many outgoing presidents.Jim said the gift was but a token in light ofBarry’s many accomplishments during histerm. He cited Barry’s directness, his will-ingness to do “difficult things,” and thefact that, “even after conflicts, he rebuildsrelationships.” During his term, Jim said,Barry put the Association on a soundfinancial footing, a fact that will benefitthe membership in many large and smallways. Responding, Barry attributed lastyear’s accomplishments to “team work”of all kinds: the support of the SCBAExecutive Committee and Board, helpfrom the Association staff, the cooperationof Suffolk’s judiciary, and assistance fromhis wife Kim, who not only supportedhim, but helped to run Association activi-ties, including the SCBA blood drive and

Centennial Celebration.President Winkler, himself, was the

recipient of much praise and a number ofovations, not a few of which came from hiscolleagues in the matrimonial bar. Perhapsthe qualities that he seems to bring to mostendeavors were best summed up by hisbrother and partner, Richard D. Winkler,who served as the evening’s master of cer-emonies. “Jim,” Richard said, “has servedin the trenches of the matrimonial bar, the‘field of broken dreams,’ and, always, hehas been guided by principles rather thanpersonalities.”

Finally, SCBA Executive Director JaneLaCova, who puts together the installationdinner, was also praised, not only by Jimand Barry, but by Michael Getnick,President Elect of the New York State BarAssociation, a featured speaker of the

evening, who noted Jane’s enthusiasm anddedication to the Suffolk Bar.

The installation of the new Associationleaders, symbolic of both a nascent admin-istrative year and a rededication toAssociation ideals, is, of course, the high-light of the annual celebration. This year,the new SCBA Officers – Ilene S. Cooper,President Elect; Sheryl L. Randazzo, FirstVice President; Matthew E. Pachman,Second Vice President; Arthur E.Shulman, Treasurer; and Dennis R. Chase,Secretary – were administered the oath ofoffice by the Honorable H. Patrick LeisIII, Suffolk’s Administrative Judge. Thenewest SCBA Directors – Honorable W.Gerard Asher, Annamarie Donovan,Joseph A. Hanshe, and George R.Tilschner – were sworn in by theHonorable Marion T. McNulty, Justice of

the New York State Supreme Court,Suffolk County. And President Winklerwas installed by the Honorable Robert A.Lifson, a justice of the New York StateSupreme Court, Appellate Division,Second Judicial Department.

Perhaps one of the most memorableaspects of this year’s installation cere-monies will be the homage paid not onlyto the Association and its leaders, but tothe law itself. In his remarks, PresidentWinkler acknowledged that the law “canbe complex, ambiguous, and mind-numb-ing”; but, referencing what Churchill saidabout democracy, Jim said, “the law is theworst way to solve disputes – except forevery other way.” Quoting John W. Davis,Jim affirmed, “the law makes possible thepeaceful life of men in a peaceful state.”

And that is certainly reason to celebrate!

Stand Proudlawyers profoundly and effectively. Thepublic has been served as well throughour association, by encouraging ourmembership to pursue the highest idealsof our profession. The lawyers who arerespected in our profession are honest,competent and pursue justice for theirclients every time they step into a court-room, negotiate a contract or settle acase.

In spite of all the lawyer bashing andthe constant attacks on our independentjudiciary, in spite of the few among ourranks who misuse the power of our pro-fession for their own ends with ourregard to the damage they do to our rep-utations, this profession remains, in thewords of our past President, ScottKarson, the most important guardian ofjustice—for the public we serve here inSuffolk County and throughout the coun-try.

On Friday, June 6, 2008, we celebratedour profession and our 110th

Anniversary. We had a right to celebrateand to be proud. We must continue toremind each other, and the public, thatlawyers were at the center of virtuallyevery lasting event in our history. Half ofthe signers of the Declaration ofIndependence were lawyers as weremany of the delegates to ourConstitutional Convention. Our lawyersinterpret the Constitution, not theLegislative or Executive branch, and wedepend on lawyers to do so every day sothat we may live in a just and free soci-ety.

A large share of the responsibility forprogress in our public life has alwaysfallen upon lawyers. While we know thatthe law is overly complex, time-consum-ing and often a mind- numbing way toresolve disputes, all of us understand, asWinston Churchill stated, that although itmay be the worst way to resolve disputes,it is better than every other way. And Ifor one, over the next year, intend to sup-port and defend our profession, notbecause we are innately entitled orbecause we must defend our right tomake a living, but because we are the lastremaining champions of the public trust.Without lawyers, willing to take onunpopular causes, willing to pursue cor-porate greed and seek justice for thosewho are wronged by more powerfulinterests, there will be few among us whowill attempt to redress the imbalancebetween the majority of our citizens andthe powerful few.

We must defend our professionbecause it is a noble profession. I chal-lenge anyone to show me a society whereno one is skilled in applying the law andwhere the rule of law is nonexistent and Iwill show you an oppressive, dictatorialsociety where the weakest among us hasno chance and the strongest among usshow no restraint.

Over the years, most of the lawyers Ihave known are intelligent, unselfish,driven by a sense of justice in their workand passionate about their roles andduties as lawyers. Indeed, I intend tospeak up for these lawyers this year and

to defend them and our profession atevery opportunity. This is because Ibelieve in this profession and I am proudof it. We cannot bury our heads in thesand and pretend we do not have prob-lems, even serious abuse, but we muststand up and say, without reservation,that we believe in our legal system andthe lawyers who serve it. Lawyers are notperfect, but they are the essential linkbetween the public and the rule of law.And we are better than most professionsin ferreting out the incompetent and dis-honest among us.

We must celebrate our commitment toethics in this profession and educate thepublic about this commitment. Indeed,we must be ready and willing to speak upand to explain what we do and why we doit. We must show pride in our professionand while acknowledging our shortcom-

ings, we must defend the important placewe have in our system of justice andstrive to attain the highest ideals of thisprofession. It must be our common pur-pose to raise the public’s perception oflawyers and judges so that our friendsand neighbors are not convinced by thecynics that lawyers are the source of ourproblems. We must educate the publicthat lawyers are the best hope for a justand free society.

These words express the essence of myspeech at the Installation Dinner on June6, 2006. I am proud to be a lawyer here inSuffolk County celebrating 100 years ofour history. I sincerely hope all of youare as proud as I am. I hope that you feelthat same pride every day as you head offto work, recognizing that the work youdo is important to a free and civilizedsociety. Stand proud.



New Bankruptcy Judges MeetBankruptcy Barwith the bankruptcy bar and hoped to getaround to creating a forum to do so in thenear future.

Update on Judge CyganowskiThis past week, Former Chief

Bankruptcy Judge Melanie Cyganowskijoined the law firm of Otterbourg,Steindler, Houston & Rosen, P.C. as apartner. When she left the bench lastyear, she had joined the firm GreenbergTraurig . She has now jumped firms tobecome a member of Otterbourg’s credi-tors’ rights and insolvency practicegroup.

In a statement, Judge Cyganowskiremarked, “After being on the bench forfourteen years, I have seen just aboutevery creditors’ rights issue from everyviewpoint and understand how cases cantake different twists and turns. It’s aunique perspective that I believe trans-lates well into private practice.”

Of her new firm, Cyganowski noted,

“Otterbourg has experience and exper-tise that rivals any large financial lawfirm and surpasses many. Its focus on thecreditors’ rights field meant it has beenpart of most major bankruptcies, whetherrepresenting a creditors’ committee,secured or unsecured creditors, a lenderor a potential buyer of assets. I am great-ly looking forward to being able to con-tribute to the practice.”

Incidentally, Judge Cyganowski’s pre-decessor, Chief Judge Conrad B.Duberstein, chaired Otterbourg’s credi-tors’ rights and insolvency departmentbefore moving to the bench, about twen-ty-five years ago.

Note: The author is a regular colum-nist, is a bankruptcy attorney who hasrepresented thousands of consumer andbusiness clients during the past twentyyears. His office is in Woodbury (516)496-0800. He can be reached [email protected].


Work Zones and IncreasedSurchargesto $540.

The Department of Motor VehiclesDriver Improvement Unit – (518) 474-0774 – has changed their hours for tele-phone assistance to 8:30 a.m. to 12 p.m.Monday to Friday.

Just a reminder that the 2008 DMV andVTL Update will be held November 13,2008, at the home of our Association,

with registration beginning at 5:30. Ithank you as always for the honor andprivilege of being able to appear beforethe members of our Association. Have ahappy and healthy summer.

Note: The author practices in Islandiaand is a frequent contributor to this pub-lication.



The Law Of Supply And DemandA Law That Defies Legislative Remedyingly promoting their uncompromisingagenda. The promised solution remainsthe same: legislative action can address allailments in one fell swoop. All that isneeded is a new law or set of laws, prefer-ably ones that place additional burdens onthe industry be it in the form of additionalso-called “windfall” taxes, restraints onresearch and exploration or a combinationof these and more. Whether such lawsmight realistically provide any benefitsvis-a-vis the rather certain harm that isbound to ensue is rarely given serious con-sideration or discussed dispassionatelywithin a fact based environment.

Examining the Facts and Data 41 percent of Americans’ financial port-

folios contain Oil industry stocks andwindfall taxes would impact on thosecountless portfolios. Most of those portfo-lios are owned by ordinary Americans intheir 401K and other retirement portfolios.

Regarding “cost-gauging,” the averagesenior oil company executive earns in thearea of 12 to 15 million dollars annually.Of course these are huge numbers for theaverage working American, but when onetakes into consideration the level ofresponsibility that accompanies theseposts and when further compared tosalaries awarded to professional athletesand other entertainment figures such asactors, musicians, at al. these salaries aremore than comparable.

The most salient issue revolves aroundthe matter of who controls the actual priceof a gallon of gasoline at the pump. This iscrucial question, and can best beaddressed in terms of the break down ofthat price. Approximately 71 to 73 percentis directly attributable to the cost of crudeoil, which is traded on the open marketand over which the oil companies have nocontrol whatsoever. Next 13 to 15 percentof the price of gasoline is absorbed byFederal and State taxes. Some states havea lower rate of taxation on oil while othersa much higher one based on a myriad ofreasons. Refining and operating costs forindividually owned filling stationsaccount for up to 10 percent of the price.This leaves the oil companies with 3 to 4percent as their return on investment orprofit. This rate is historically the rate ofreturn for what is considered a successfulmature corporation as opposed to one in arapidly ascending phase such as for exam-ple, Microsoft, in its growing stage in the1980’s and 1990’s. Consequently their so-called landfall profits are merely a productof the rise in the ultimate price of gasolinecaused by an increasing demand, which iscaused by our ever increasing needs andthe rapidly rising needs of evolvingnations, most prominent among thembeing China and India.

The petroleum industry is told to in nouncertain terms to lower prices whilesimultaneously increasing their produc-tion or risk the full power of the legislatureand new legislation designed to punishthem. That is not the worst of the dilem-mas that these firms face. Legislation overthe past three decades based on real, per-ceived and mostly politically instigatedlegislation has severely limited the domes-tic sources as well as the refining capabil-ities in this nation, making us furtherdependent on outside or foreign sources

for our needs.

The May 2008 CongressionalTestimony [Extracts in their ownwords]:

The oil executives at the May 21 hear-ing said it is the fault of Congress thatAmerican oil companies have access to solittle petroleum. Shell Oil President JohnHofmeister encapsulated the major themepresented at the hearing most eloquentlyand as follows:

“While all oil-importing nations buy oilat global prices, some, notably India andChina, subsidize the cost of oil products totheir nation’s consumers, feeding thedemand for more oil despite record prices.They do this to speed economic growthand to ensure a competitive advantage rel-ative to other nations. Meanwhile, in theUnited States, access to our own oil andgas resources has been limited for the last30 years, prohibiting companies such asShell from exploring and developingresources for the benefit of the Americanpeople.”

Senator Sessions in response said: “Iagree, it is not a free market.”

The testimony and hearings continuedand included the following, which encap-sulates the essence of the problem and arecommendation to congress:

“According to the Department of theInterior figures, 62% of all on-shore feder-al lands are off limits to oil and gas devel-opments, with restrictions applying to 92percent of all federal lands. We have anouter continental shelf moratorium on theAtlantic Ocean, an outer continental shelfmoratorium on the Pacific Ocean, an outercontinental shelf moratorium on the east-ern Gulf of Mexico, congressional bans onon-shore oil and gas activities in specificareas of the Rockies and Alaska, and evena congressional ban on doing an analysisof the resource potential for oil and gas inthe Atlantic, Pacific and eastern Gulf ofMexico.

The Argonne National Laboratory did areport in 2004 that identified 40 specificfederal policy areas that halt, limit, delayor restrict natural gas projects. I urge youto review it. It is a long list. If I may, Ioffer it today if you would like to includeit in the record.

When many of these policies wereimplemented, oil was selling in the singledigits, not the triple digits we see now.The cumulative effect of these policies hasbeen to discourage U.S. investment andsend U.S. companies outside the UnitedStates to produce new supplies.

As a result, U.S. production hasdeclined so much that nearly 60 percent ofdaily consumption comes from foreignsources.

The problem of access can be solved inthis country by the same government thathas prohibited it. Congress could havechosen to lift some or all of the currentrestrictions on exportation and productionof oil and gas. Congress could providenational policy to reverse the persistentdecline of domestically secure naturalresource development”

And yet in spite of all these challengesUnited States oil prices are still lower thanthose in Europe where the prices at thepump are almost double our own.

Furthermore even in oil producing coun-tries such as Canada, the nation fromwhich we import the most oil, andMexico, also a major supplier to the U.S.the average price of gasoline surpasses ourown. This if anything should be com-mended, yet not a word is uttered in thisregard.

Lastly and to give further credence tothe congressional testimony cited above, itwould seem that a solid majority ofAmericans in spite of all of the sustainedprofessing to the contrary by the mediaand the other usual sources, by a margin of57 to 41 percent those surveyed in a recentGallup poll support drilling for domesticoil off the coast and in wilderness includ-ing ANWAR.

Is the Objective the Stifling theAmerican Free Market System byForce of Law?

Is this a fair question or merely anattempt at grandstanding and/or oversim-plifying what is admittedly an issue thatcarries a number of complexities within itsbroader straight forward encasement?Perhaps one need look no further than toRepresentative Maxine Waters (D-CA)statement during the House ofRepresentatives hearing on May 22, 2008.She simply put it as follows in anexchange with the aforementioned Mr.Hofmesiter of Shell Oil: “And guess whatthis liberal will be all about? This liberalwill be about socializing...uh, will beabout, basically taking over and the gov-ernment running all of your companies.”To which the oil executive answered:“We’ve seen this movie before. It’s calledHugo Chavez in Venezuela.”

It would thus seem that the path toutopia is to eradicate the system throughlegislation and subsequent enforcement byour legal system of the American freemarket system. A system that has yieldedthe greatest level of prosperity that anynation or civilization in human history hasever experienced. Through her sponta-neous, unguarded statement Ms. Watersrevealed, perhaps unintentionally, the ulti-mate objective that she and the many that

espouse her philosophy hope to achieve.The United States Constitution protects

the right to private property and it indeedconstitutes one of the most foundationalprinciples of our representative republic.The framers inscribed within the frame-work of the United States Constitutionthat the government must not own anymeans of production. This has been a longstanding legal principle which is intendedto insure that government will not invadethe realm of private enterprise thus negat-ing the possibility or the emergence of anyform of socialism. Most assuredly anyattempt at nationalizing the largest indus-try in the nation would constitute social-ism in its fullest form, denigrating humaningenuity and drastically reducing produc-tivity with the ultimate outcome being adrastic diminution in the nation’s standardof living. If one were to push the constitu-tional argument even further, it might wellbe argued that excessive regulation whentaken to the point where for all intents andpurposes the ability to engage in its regu-lar business activity is no longer feasibleconstitutes a taking for which the ownermust be justly compensated. But thismight indeed be the not so subtle fall backobjective of a faction of a legislative bodythat we entrust we protecting the essenceand spirit of the constitution.

If history offers any insight into thingsto come, one can take comfort in the factthat this representative republic and itsconstitution have seen and surmountedmany more daunting challenges in its twoplus centuries than the one it currentlyfaces. At the root of it all is nothing morethan an old run of the mill “supply anddemand” economics 101 issue. One thatingenuity and creativity given some free-dom of movement are more than equippedto resolve if not unduly burdened byunnecessary and counterproductive legalconstraints.

Note: The author is a Professor ofBusiness & Law at the State University ofNew York-Empire State College, and anattorney in Huntington. He can be con-tacted at [email protected].


The Suffolk County Bar Association is comprisedof several foundations. They include the Pro BonoFoundation, Lawyer Assistance Foundation,Charity Foundation, Scholarship Foundationand Academy of Law.

These foundations rely on your generosity. Won’tyou help us to keep these foundations viable? Pleaseconsider making a tax-deductible gift to the founda-tion of your choice. For further information, callSCBA headquarters at (631) 234-5511.

SCBA Foundations

Need Your Support


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 theSuffolk County Bar Association, provides a comprehensivecurriculum of continuing legal education courses for attor-neys, judges, and other professionals and paraprofession-als. This section lists CLE courses to be held in July andAugust, plus selected fall programs.

ACCREDITATION FOR MCLE:The Suffolk Academy of Law has been certified by the NewYork State Continuing Legal Education Board as an accred-ited provider of continuing legal education in the State ofNew York. Thus, Academy courses are presumptivelyapproved as meeting the OCA’s MCLE requirements.

NOTES:Program Locations: Most, but not all, programs are held atthe SCBA Center; be sure to check listings for locationsand times.

Tuition & Registration: Tuition prices listed in the registrationform are for discounted pre-registration. At-door registra-tions entail higher fees. You may pre-register for classes byreturning the registration coupon at right with your payment.Refunds: Refund requests must be received 48 hours inadvance. Non SCBA Member Attorneys: Tuition prices are discounted forSCBA members. If you attend a course at non-memberrates and join the Suffolk County Bar Association within 30days, you may apply the tuition differential you paid to yourSCBA membership dues. Americans with Disabilities Act: If you plan to attend a pro-gram and need assistance related to a disability provided

for under the Americans with Disabilities Act, please let usknow.

Disclaimer: Speakers and topics are subject to change with-out notice. The Suffolk Academy of Law is not liable forerrors or omissions in this publicity information. Tax-Deductible Support for CLE: Tuition does not totally supportthe Academy’s educational program. As a 501(c)(3) orga-nization, the Academy can accept your tax deductibledonation. Please take a moment, when registering, to add acontribution to your tuition payment. No amount is toosmall.

Financial Hardship: For information on needs-based scholar-ships, payment plans, or volunteer service in lieu of tuition,please call the Academy.

INQUIRIES: 631-234-5588.

SUMMER CLE

SUMMER READING

A LUNCH ‘N LEARN SERIES

The courses comprising this series will delve into specificcases, statutes, legal papers and other writings that are signifi-cant within the given practice areas. In some instances, you willreceive actual reading material to keep and ponder at yourleisure; in some, the faculty will have done the reading for you;and in others the reading material will be examined collabora-tively in class. Despite the focus of the series, none of the class-es involve “homework” or advance preparation! You may enrollin any single class or classes or save by taking three or moreprograms or the full series.

Each Class: Location: Suffolk County BarCenter, 560 Wheeler Road, Hauppauge (LIE Exit 56; 1 mile north on the left)Time:12:30 – 2:10, with lunch and registration from noon

ATTORNEY’S FEES: The Principle of Quantum Meruit

Thursday, July 10, 2008 How to set fees and get paid for your services, including theprinciple of quantum meruit and how to apply it appropriatelyand ethically.Faculty: Harvey B. Besunder, Esq. (Past SCBA President // Islandia)MCLE: 2 Hours (1 practice management; 1 ethics) // Transitional or Non-Transitional

SURROGATE’S COURT PRACTICE:Drafting Flexible Wills and Trusts

Tuesday, July 15, 2008How to build the utmost flexibility into the wills and trusts youdraft to allow for changes in circumstances or need. Participantsin the program will receive, at no extra cost, a comprehensiveNew York State Bar Association publication, A Brave New Worldfor Drafters.Faculty: Eileen Coen Cacioppo, Esq. (Stony Brook // Academy Advisory Committee)MCLE: 2 Hours (1 ½ professional practice; ½ ethics) //Transitional or Non-Transitional

ELDER LAW PRACTICE: Facts, Fiction, & Case Law

Tuesday, July 22, 2008An examination of significant cases, statutory enactments, andeven the stories of fictional characters grappling with the issuesfacing an aging population. Gain new insights about naggingquestions and problems.Faculty: Sheryl L. Randazzo, Esq. (Randazzo & Randazzo,Huntington // SCBA First Vice President)MCLE: 2 Hours (1 ½ professional practice; ½ ethics) //Transitional or Non-Transitional

COMMERCIAL PRACTICE: Judicial Dissolution of LLCs

Thursday, July 24, 2008What to do when a member of an LLC seeks to dissolve theentity. Gain insight into how dissolution of a corporation (underthe BCL) differs from dissolution of an LLC, a process thatrelies primarily on the provisions of Section 702 of the LLC Law.Faculty: Peter A. Mahler, Esq. (Farrell Fritz, P.C.)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

PERSONAL INJURY: Summary Judgment Threshold

Motions–How to OpposeTuesday, July 29, 2008

How to use “proof” from the treating physician, how to establishthe impact of an injury and its effects on prior activities, andmuch more of practical and strategical use. Many useful formswill be distributed.Faculty: Samuel E. Felberbaum Esq. (Felberbaum, Halbridge & Wirth–Commack)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

UNCONTESTED MATRIMONIALS &QDROs:

Avoiding Errors in the Papers You SubmitWednesday, July 30, 2008

A review of common errors and practical advice for getting youruncontested matrimonials or QDROs right the first time.Faculty: Frederick J. Crockett III (Management Analyst,Supreme Court, Matrimonial Part) and Hon. John Kelly (Family Court)MCLE: 2 Hours (professional practice) // Transitional or Non-Transitional

CRIMINAL PRACTICE: Hot Topics

Thursday, July 31, 2008An examination of three areas of importance to those who han-dle criminal matters: jury trial issues; recent Court of Appealscases; ineffective assistance of counsel.Faculty: Scott Lockwood, Esq. (Deer Park) and William T.Ferris, Esq. (Bracken & Margolin)MCLE: 2 Hours (1 ½ professional practice; ½ ethics) //Transitional or Non-Transitional

FAMILY PRACTICE: Law Guardian v. Attorney for the Child

Tuesday, August 5, 2008Does a law guardian advocate for a child as he would for anadult (with all the attached obligations of confidentiality, etc.), oris the goal to protect the child’s best interests? An examinationof responsibilities that, despite rulings and writings, remainambiguous.Faculty: Joseph D. Mirabella, Esq. (Mastic)MCLE: 2 Hours (1 professional practice; 1 ethics) //Transitional or Non-Transitional

THE CPLR: Selected Articles

Wednesday, August 6, 2008Learn to use selected articles of the CPLR effectively andstrategically in this seminar featuring a law secretary and expe-rienced litigator.Faculty: James Fagan, Esq. (Law Clerk to Hon. Mark Cohen)and Wende A. Doniger (Doniger & Engstrand)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

REAL ESTATE: Reading Title Reports & Clearing Title

Thursday, August 7, 2008How to read a title report with an eye toward identifying poten-tial problems. You will also gain tips for seeing a deal through toconclusion and a clear title.Faculty: Vincent Ferro, Esq. (Counsel–First American Title)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

EVIDENCE IN MATRIMONIAL PRACTICE

Tuesday, August 12, 2008The differences between how evidentiary matters are handledin Supreme Court and how they are handled in Family Court.Gain strategies for both venues. Faculty: Jeffrey S. Horn, Esq. (Huntingron)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

EMPLOYMENT LAW: The Declining Utilities of theEmployment-at-Will Doctrine

Thursday, August 14, 2008Changes in the once well established dictum that minus anemployment or bargaining unit contract and minus a dischargebased on discriminatory reasoning, employees could be fired atthe will of the employer. Gain advice for a new playing field.Faculty: Wayne J. Schaefer, Esq. (Hauppauge)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

BANKRUPTCY PRACTICE TODAYTuesday, August 19, 2008

Basics of bankruptcy practice and the effects, three years later,of the Bankruptcy Act of 2005. Gain insights and strategies forcounseling clients in financial difficulty.Faculty: Richard Stern, Esq. and Michael Macco, Esq. (Melville)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

TRIAL PRACTICE: Voir Dire

Thursday, August 21, 2008How to talk to potential jurors and identify the ones you would

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

rather not have on the panel. Gain tips for handling voir direin both civil and criminal cases.Faculty: Jerry Garguilo, Esq. (Saint James)MCLE: 2 Hours (professional practice) //Transitional or Non-Transitional

COMPUTER TRAINING

Two limited-enrollment computer-training classes will beoffered this summer. The programs provide important skills,but do not have legal content. Hence, no MCLE credit willbe awarded.

ADVANCED WORDMondays, July 7 and 14

4:00–6:00 p.m. // ERC Room

PHOTO SHOP ELEMENTSMondays, July 21 and 28; August 44:00–5:30 p.m. // ERC Room

A DAY AT THE RACES(with CLE)

Saturday, September 27, 2008Belmont Racetrack (Private Room – Track & Field Club)8:00 a.m. through the last raceThis special day for lawyers, spouses, and friends includescontinental breakfast; a three-credit CLE program; a handi-capping program (run simultaneously with the CLE, for non-lawyers); a tram tour of the backstretch; and an elegant buf-fet luncheon. Races follow the formal program. September 27 is one ofthe best racing days in the year: five stakes races, includingthe $750,000 Jockey Club Gold Cup Invitational (a lead-into the Breeders’ Cup a few weeks later).Program Chairs: Howard A. Baker, Esq. (Academy Advisor)and Herbert (Skip) Kellner, Esq. (Academy Officer)

FALL UPDATESRegister before August 1 and take a10 percent discount on the tuitionyou pay.

PROFESSOR DAVID SIEGEL’S 2008NEW YORK CIVIL PRACTICE

UPDATEThursday, September 25.

6:30 p.m.–9:30 p.m.; sign-in and deli supper from 6:00 p.m.Hyatt Regency Wind Watch Hotel in

HauppaugeMCLE: 3 Hours (professional practice) // Transitional orNon-Transitional

CRIMINAL LAW UPDATE with Hon. Mark Cohen and Kent

MostonFriday, October 17

1:30–4:30 p.m.; sign in from 1:00 p.m. NassauSupreme Court in MineolaMCLE: 3 Hours (2 ½ professional practice; ½ ethics) //Transitional or Non-Transitional

REAL PROPERTY UPDATEwith Scott Mollen (Herrick Feinstein, LLP

NYC // NYLJ Columnist) Wednesday, October 22

6:00–9:00 p.m.; sign-in and light supper from 5:30 p.m.SCBA CenterMCLE: 3 Hours (professional practice) // Transitional orNon-Transitional

DMV UPDATE with David Mansfield (Islandia)

Thursday, November 136:00–8:30 p.m.; sign-in and light supper from 5:30 p.m.

SCBA CenterMCLE: 2 ½ Hours (professional practice) // Transitional orNon-Transitional


for their perusal and reference after theprogram.

On Tuesday, July 22, Sheryl Randazzo,an experienced elder law lawyer and theSCBA’s First Vice President, will explore“Elder Law Practice: Fact, Fiction, andCase Law.” As the title implies, a varietyof materials will be utilized, from actualcases and statutory law through fictionalcharacters grappling with the exigencies ofpreparing for their later years.

On Thursday, July 24, an experiencedcommercial lawyer, Peter A. Mahler ofFarrell Fritz, will examine “JudicialDissolution of LLCs.” Mr. Mahler, whohas written extensively on the topic, willexamine the key differences between dis-solving a limited liability company anddissolving a corporation. For starters, thesecond situation, covered by the BCL, hasprecedent and clear rulings to guide theprocess. Dissolution of LLCs, however,rely on the provisions of Section 702 of theLLC law, which is perhaps more notablefor what it does not say about dissolutionthan for what it does. To take some of theconfusion out of what to do and what cri-teria apply when a member wishes to dis-solve an LLC, take this important, infor-mation-packed class.

Personal Injury Practice – in particu-lar “Summary Judgment ThresholdMotions and How to Oppose Them” –will be covered, on Tuesday, July 29, bythe always well-received presenter on neg-ligence law, Samuel Felberbaum. Mr.Felberbaum will look at the issues thatcome into play – from obtaining “proof”from the treating physician, through estab-lishing the impact of an injury on prioractivities – and provide forms and samplesyou will find useful references for thefuture.

Entitled “Uncontested Matrimonials& QDROs: Avoiding Errors in thePapers You Submit,” the Wednesday,July 30, program will help you to steerclear of the kinds of preventable mistakesthat lead to the frustrating rejection ofpapers. The presenter, Frederick J.Crockett III, management analyst for theSupreme Court Matrimonial Part, has seenthe bad, the good, and the ugly in submit-ted papers. His advice will prove invalu-able! Hon. John Kelly, the Associate Deanof the Academy, will serve as moderator.

Two experienced criminal practicelawyers, Scott Lockwood and William T.Ferris, constitute the faculty for theThursday, July 31, seminar, “Hot Topicsin Criminal Practice.” This eminent fac-ulty will have done the reading for you andwill share information you will not want to

miss, even if you handle only the occa-sional criminal matter. Mr. Lockwoodwill discuss “Issues in Jury Trials.” Mr.Ferris will review “Recent Court ofAppeals Cases” and, an issue that canstrike fear into any criminal lawyer’sheart, “Ineffective Assistance of Counsel.”

A Family Practice topic that is compli-cated and confusing for those who dealwith children’s issues will be covered inthe Tuesday, August 5, program, “LawGuardian v. Attorney for the Child.”Experienced family law practitioner JosephD. Mirabella will look at the problems andquestions that linger, despite rulings byauthorities as eminent as the HonorableJudith Kaye: Is the lawyer to advocate forthe child as he would for an adult (with allthe implied limits, restrictions, and ethicalobligations)? Or is the goal to protect thechild’s “best interests”? Can the lawguardian become a “witness” in the litiga-tion? How do confidentiality requirementsapply? If you handle family court matters,you will want to join in what should be avigorous discussion of the topic.

For civil litigators what could be moreimportant than the CPLR? Selected arti-cles will be discussed by the series chairWende Doniger and James Fagan, lawclerk to Hon. Mark Cohen, with an eyetoward providing practical, concreteadvice. The date is Wednesday, August 6.All who handle civil matters will gaininvaluable tips for handling a matter fromintake through settlement or trial.

On Thursday, August 7, an always pop-ular presenter, Vincent Ferro, counsel forFirst American Title, returns to theAcademy’s CLE stage for an in-depthreview of “How to Read a Title Report.”Mr. Ferro will provide wise counsel onhow to spot problems and how to see adeal through to a clear title. Of coursewithout title, there is no deal. Hence, theimportance of this program to all who han-dle residential real estate.

Evidence in Matrimonial Practice willbe explored by Jeffrey S. Horn onTuesday, August 12. Mr. Horn will look atan issues that confounds many who handlematrimonial matters: the differencesbetween how evidentiary matters are han-dled in Supreme Court and how they arehandled in Family Court. This must-attendseminar will provide advocacy strategiesfor both venues.

A current issue in Employment Lawwill be covered on Thursday, August 14,by Wayne J. Schaefer, an experiencedemployment law attorney, the co-chair ofthe SCBA’s Labor and EmploymentCommittee, and an Officer of the

Academy of Law. Mr. Shaefer’s presenta-tion entitled, “The Declining Utilities ofthe Employment-at-Will Doctrine,” willlook at what the current climate means forthose handling termination disputes. Boththose representing management and thoserepresenting employees must consider thechanges in the once well established dic-tum that minus an employment or bargain-ing unit contract and minus a discharge fordiscriminatory reasons, the employer (likethe employee) could terminate the rela-tionship with impunity.

“Bankruptcy Practice Today” is thetitle of the Tuesday, August 19, seminar tobe presented by the always popularRichard Stern and Michael Macco ofMacco & Stern, the Melville firm that hasconcentrated in bankruptcy practice for agood many years. Messrs. Stern andMacco will look at the effects of theBankruptcy Act of 2005 three years later.Their advice on consumer bankruptcy –covering Chapter 7 and Chapter 13 “con-versions,” with all the papers, tests, andprocesses involved – will prove invalu-able to any attorney counseling clients infinancial difficulty. (And in today’s eco-nomic climate, attorneys in virtually anypractice area may find themselves dealingwith bankruptcy questions.)

Last, but certainly not least, the SummerReading series features experienced litiga-tor Jerry Garguilo in a seminar on TrialPractice, focusing on Voir Dire. OnThursday, August 21, Mr. Garguilo willprovide strategic tips for talking to andassessing prospective jurors in both crimi-nal and civil cases. Any lawyer who picksa jury will want to attend.

The Summer Reading series is intendedfor both the experienced lawyer and thenewly admitted. The seasoned practitionerwill find an opportunity to look at limitedtopics in greater depth than most programsafford. New lawyers will gain knowledgeon issues that are critical to practice in thegiven areas.

Each seminar provides two MCLE cred-its. (See the Academy’s Summer Catalogor the CLE Spread in this publication forthe exact breakdown.) Tuition for a singleprogram is $50 for SCBA members, with asavings resulting from enrollment in mul-tiple programs: i.e., three programs for$125 or all fourteen (28 credits) for $500.

For more information or to register forprograms, lawyers may call the Academyat 631-234-5588.

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

Fall Dates To SaveProfessor Siegel’s New York Practice Update Thursday, September 25

Hyatt Regency Wind Watch Hotel

Day at the Races Saturday, September 27Belmont Racetrack

Criminal Law Update (Mark Cohen & Kent Moston) Friday, October 17Nassau Supreme Court

Real Property Update (Scott Mollen) Wednesday, October 22SCBA Center

DMV Update (David Mansfield) Thursday, November 13SCBA Center

Summertime and the Reading Is Easy (Continued from page 28)

Five New Officers Join theAcademy Board (Continued from page 28)

voluntary capacity, are selected on thebasis of the valuable services they haveprovided: among other things, helping toplan and implement CLE programs, serv-ing as lecturers, and participating inAcademy meetings. New officers servein one-year terms, after which theybecome eligible for election to three-yearterms. This year’s new officers join 15others who, along with the Dean, com-prise the 21-member Academy board:Gail Blasie, Michael S. Brady, Nancy E.Ellis, D. Daniel Engstrand, Jr., Diane K.Farrell, Richard L. Filiberto, Robert K.Howard, Hon. John Kelly, Cheryl F.Mintz, Richard V. Rappaport, Wayne J.Schaefer, Allison C. Shields, Felix

Wienclaw, Robert G. Wilk, and John C.Zaher.

Meetings of Academy Officers andVolunteers are held, generally, on thefirst Friday of each month, at 7:30 a.m.(In January 2009, the meeting will be onthe second Friday.) Meetings are open,and all SCBA members are cordiallyinvited to attend. New ideas, as theAcademy goes about its business of plan-ning educational programs, are most wel-come. A delicious – and complimentary –breakfast buffet is served. The next regu-lar meeting, after a summer hiatus, isscheduled for September 5.

— D. Ceparano

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Visitors at the trade show buffet

Steve Biegelsen (left) with Arthur

Shulman, a member of the SCBA

Executive Committee

A full-house at Marian Rice’s seminar.

SCBA member Joe O’Connor, a happy

trade show visitor

Marion Baumer and Jane LaCova distrib-

uting SCBA membership literature

Photos by Barry Sm

olowitz

make these peoples amenable to fair deal-ing with the Khan.

Thus Cathay, his home base, was but oneland that Polo wrote of. He reported as wellon other lands, lands that no European, sofar as all records show, had ever penetrated,lands unknown to the West-at-large: Lesserand Greater India and their various islands(collectively, “The Indies”); Ceylon;Sumatra; Malaya; Java; Japan; and Russia.While in Russia, Polo observed the abun-dance of “costly furs” (those borne byermine, black fox, and sable) but he feltconstrained to insert a cautionary noteregarding the potential severity of their costto those Westerners who would dare huntin so deadly a climate.

“...the cold is more intense than any-where else in the world – so intense thatmen can scarcely survive it. Indeed, were itnot for the many stove-houses that existthere, the inhabitants could not avoid dyingof cold...Sometimes such fierce cold pre-vails that men who are going about thecountry...are very nearly frozen after leav-ing one stove-house and before reachingthe next, although they are so close togeth-er that the distance from one to another isonly about sixty paces. Even so, when aman departs warmed through from onestove-house, he is frozen before he gets tothe next.”

The reader is here reminded ofChurchill’s summation of Hitler’s ill-fatedinvasion of Russia, to the effect that, hadHitler read History, he would have bene-fited from the lesson of Napoleon’s disas-trous Russian campaign. For his part,Napoleon either didn’t read, or didn’theed, Polo’s words on the Russian winter,

words indicative of a man who was astute-ly observant, altogether prescient. (Todrop another name, Harry Truman had itright: The only thing that’s new is the his-tory you haven’t read.) At all events, con-trast the hubris-cum-cowardice of thosetwo invaders who controlled mightyarmies – in inverse order, one who gaveorders from a safe distance, the other whoabandoned the battlefield – with the hero-ism-cum-humility of the solitary, indepen-dent, unsurpassingly adventurous Polo,who nonetheless recognized a powergreater than himself when, in accord withWestern custom of the time, he ended hisbook with Deo gratias. Amen.

For 20 years, then, he traveled. Heobserved the East’s wealth of naturalresources – its minerals, its preciousstones and sampled its delightful spices –ginger, saffron, and white pepper – and itssweet and tart citrus fruits. He witnessedthe fabrication of its silk and cloth-of-gold, noted all of its exotic flora andfauna, paid respect to its various religiousbeliefs, its various social mores – the mar-riage customs, the familial structures.

All of these observations would proba-bly never have been memorialized, hadPolo not suffered his second misfortune.Years after his service with the GreatKhan, Polo, while commanding aVenetian galley in 1298, was captured bythe Genoese during the battle of Curzola,one of many battles of the wars of theItalian city-states. He thereafter spent ayear in a Genoese prison, where he metRustichello of Pisa, a popular romancewriter of the time. Anticipating thatWestern readers would be fascinated by

Polo’s experiences, Rustichello urged hiscellmate to send to Venice for his notes,and a successful collaboration began.Shortly after his release, Polo saw hisbook become immensely popular; in theevent, The Travels would impel theWest’s leading nations to extend theiroverland trade routes into the Far East andto undertake their sea-passages of explo-ration and discovery, ultimately bringingabout Europe’s attainment of wealth.

Polo was an able reporter: He observed,and then he retailed even-handedly hisobservations, in the main forswearing con-clusive language, avoiding editorial com-ments. In those passages where his report-ing was now and again tinged with the edi-torial, it was largely of the benign sort, dis-playing for the most part a bias toward, anadmiration of, those societies he observed.

Never one to condescend or glibly char-acterize, Polo would, were he alive today,seven centuries after his travels, likely bemystified by the current Western usage, insome quarters, of the term “third-worldcountries.” Himself a Westerner, henonetheless understood that, in his Easterntravels, he wasn’t observing a “secondworld,” an inferior one. He was, rather,observing another world. The nations hevisited weren’t, as contrasted with Europe,“second-world countries,” but were – withtheir own cultures, customs, traditions,and values – simply, and complexly, othercountries. Something our contemporaryWest continues to learn.

World-renowned cellist Yo-Yo Marecently wrote of the Silk World Project,promoter of multicultural artisticexchanges: “When we broaden our lens on

the world,” he asserted, “we better under-stand ourselves, our own lives and culture.We share more in common with the farreaches of our small planet than we real-ize...A thriving cultural engine can help usfigure out how groups can peacefullymeld, without sacrificing individualityand identity. This is not about politicalcorrectness. It’s about acknowledgingwhat is precious to someone, and the giftsthat every culture has given to the world.”

By easy inference, the reader of TheTravels realizes that Polo, in the 13th cen-tury, was virtually stating what Yo-Yo Mahas just stated in our own century. WhenPolo essentially informed the West of “thegifts that every culture has given to theworld,” he revealed himself to be, likeKubilai Khan, a fore thinker, a visionary.Marco Polo traveled with an open eye, anopen mind, an open heart.

It seems fit to signal this review’s con-clusion not with the banal “30” (telegra-phy’s “end of message”) but with words –words that have a sonorous, more distant,echo. Those words that Polo used inrecognition of his deity, I use in tribute tothe man who first disabused the West ofits mindless categorization of the East as abenighted region, a man who, despite hisachievements, remained humble:

Deo gratias. Amen.

Note: The author is a member of theSCBA, lives in Sayville, and practicesCriminal Law and Family Law. His writ-ten work has appeared in the QuinnipiacLaw Review, The ABA Journal, The NewYork Law Journal, and The New YorkTimes.


Some Notes From A Genoese Jail (Continued from page 16)

The Long Island Legal Trade Show: Well Attended and Well Received$10,000 sponsorship fee from the bank.

The Suffolk Bar is grateful to StateBank for organizing the trade show andfor providing Long Island lawyers with aforum in which to learn about a variety of

law-related goods and services. Specialthanks go to Glenn Crisafi, who heads thebank’s Professional Services Group, toFirst Vice President Steve Biegelsen, andto the members of the bank’s marketingdepartment, all of whom dedicated count-less hours and energies to making the daya meaningful and memorable experiencefor all.

— DPC


Robert Guido (center) speaking with audience members

after his seminar.Academy staffers Joy Ferrari and Laura Latman at the CLE

registration desk.

SCBA Vice President

Sheryl Randazzo enjoying

the trade show lunch

Glenn Crisafi raffling off

one of the many prizes

distributed by State Bank


Sidney Siben’s Among UsAssociation of Legal Administrators’(ALA) National Conference in Seattle,Washington titled: “CLM PreparationIdea Exchange.”

On May 29, 2008, Michael J. Hellerof Lamb & Barnosky, LLP was one ofthe presenters at a seminar entitled

“Commercial Real Estate: RepresentingBuyers, Sellers and Lenders” conductedby the First American Title InsuranceCompany of New York at The GardenCity Hotel in Garden City.

Mara N. Harvey of Lamb &Barnosky, LLP was inducted to the

Board of Directors as an AuditCommittee Member in the NationalAssociation of Women Business Ownerson June 9, 2008.

Sharon N. Berlin of Lamb &Barnosky, LLP was installed as a mem-ber of the Executive Committee of the

National Association of WomenBusiness Owners, Long Island Chapter,in the position of Secretary on June 9,2008. She was also recently appointed asco-chair of the Suffolk County BarAssociation’s Labor and EmploymentLaw Committee. Ms. Berlin will be pre-sented an Employment Law Update forSterling Education Services at theHuntington Hilton on July 9, 2008.

Eugene R. Barnosky and Mara N.Harvey of Lamb & Barnosky, LLP willbe giving a presentation on June 11, 2008at C.W. Post College on legal issues inthe operation of school facilities.

Gregory J. Guercio, a Partner in theFarmingdale law firm of Guercio &Guercio, LLP, has been elected as amember of the Board of Directors of theNational Counsel of School Attorneys.He also presented “Administrators andTeachers - the Legal Role ofAdministrators and How to AvoidLiability Claims” on May 21, 2008 atStony Brook University; and on May 28,2008 presented “Administrators and theLaw” for Stony Brook University, atCarle Place High School, and presentedon June 8, 2008 at The Sagamore onLake George, regarding “E-Discovery”.

Patrice Dowd Shenn of Lamb &Barnosky, LLP will be a panelist at theBank Compliance Seminar “A Market InTurmoil” on June 11, 2008 at the NewYork City College of Technology’sAtrium Amphitheater, 300 Jay Street,NYC.

Lisa A. Azzato of Lamb & Barnosky,LLP will be appointed to sit on the Boardof Trustees of The Leukemia andLymphoma Society’s Long IslandChapter on June 25, 2008.

Condolences….To SCBA member Marcy Finkelstein

upon the passing of her father Bernard“Buck” Finkelstein on April 1, 2008.

To William P. Griffin, III, upon thepassing of his wife, Patricia. Donationsmay be made to Hospice Care Network,99 Sunnyside Blvd., Woodbury, N. Y.11797.

To Rochelle Strauss and her family onthe passing of her husband Stephen N.Strauss, long time honorary trial lawyerand former village justice of Belle Terre.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Linda Agnew, Nicole M.Cardiello, Lara Chwat, MichaelFitzpatrick, William Grausso, Joseph A.Greco, Christin Harris, Caryn Harsche,Jeffrey D. Herbst, Philip Kusnetz, JamesH. Lavin, Michael Patrick Malone,Linda Markowsky, Robert Ira Miller,George M. Nolan, Lillian Ortiz,Christopher D. Palmieri, Thomas J.Sinnickson, Miriam Beth Solon-Weintraub, Maria G. Stavrakis, DawnWalsh, Hale Yazicioglu and Lee Zeldin.

The SCBA also welcomes its neweststudent member and wishes them successin their progress towards a career in theLaw: Dr. Roy Aranda, WendyLattibeaudiere and Nancy Neumann.



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_________________________

By Dorothy Paine Ceparano

From beach books to preparatory must-reads before a new academic year, theterm “summer reading” takes on differentconnotations for different people. Thisyear, the phrase was Curriculum ChairWende Doniger’s concept for theAcademy’s July–August syllabus. Theidea was to build summer classes around

pieces of reading material – from bookson legal topics through significant deci-sions, legislative enactments, and evenmodel forms or documents.

Planning sessions evoked an assort-ment of images, from summer school ses-sions for advancement or remediationthrough scholarly discussion groupsunder leafy trees. As it finally developed,the series – entitled, aptly, “Summer

Reading” – takes on a variety of charac-teristics associated with warm weathercontemplation of written works. Classeswill be relaxed; they will be focused;some will be practical and skill-oriented;some will explore serious matters indepth; some will address controversialissues; all will leave the registrantinformed, enlightened, and professionallyrenewed. And, in a departure from theusual summer reading assignment, noneinvolve homework or advance prepara-tion!

Some of the 14 seminars that comprisethe “Summer Reading” series will pro-vide the attendee with actual books orother reading material to be used as afuture reference; some will involve read-ing material together in class; and, insome, the faculty will have done the read-ing for the attendees. All of the programsare lunch ‘n learns, running from 12:30 to2:10 p.m., with lunch and sign-in fromnoon.

The first session in “Summer Reading2008,” scheduled for Thursday, July 10,focuses on a topic of concern to all prac-titioners: “Attorney Fees.” In this class,

Harvey Besunder, a past president of theSCBA, will look at the principle of quan-tum meruit and lead a discussion on,among other things, what attorneys canand should do when, for any number ofreasons, a matter has not been seenthrough to its conclusion. Both case lawand relevant aspects of the Code ofProfessional Ethics will constitute thereading material for this class.

The second class, on Tuesday, July 15,is devoted to Surrogate’s CourtPractice – with a twist. The emphasishere will be on flexible wills and trusts –i.e., documents that have a built in capac-ity to “change” with changing need or cir-cumstances. The presenter, Eileen CoenCacioppo, the former treasurer of theAcademy and a member of its AdvisoryCommittee, will draw upon her own con-siderable experience, as well as researchshe has completed in preparation for theprogram. The reading material – a com-prehensive treatise from the New YorkState Bar Association entitled A BraveNew World for Drafters – will be distrib-uted to participants, at no extra charge,

Midway through the Academy’s lastmeeting, Dean Patricia Meisenheimer(far right) called for a pause in thebusiness of the day so that SCBAPresident James Winkler (far left)could conduct what has become anannual rite at the June meeting: instal-lation of the newest Academy officers.

Pictured, moments after they weresworn in, are: Herbert (Skip) Kellner,Marilyn Lord-James, Lynn Poster-Zimmerman, and Stephen Ukeiley. Afifth new Academy officer, George R.Tilschner, is not pictured.

Academy officers, who serve in a

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 Centerfoldfor course descriptions and registration details. For information, call 631-234-5588.

July7 Monday Computer Training: Advanced Word. Session 1 of 2.

4:00–6:00 p.m. (ERC Room)10 Thursday Academy Budget & Finance Committee Meeting. 7:30 a.m.10 Thursday Summer Reading. Attorney Fees: Quantum Meruit.

12:30–2:10 p.m. Sign-in and lunch from noon.14 Monday Computer Training: Advanced Word. Session 2. 4:00–6:00 p.m.

(ERC Room)15 Tuesday Academy Officers’ Annual Budget Meeting. 8:00 a.m.15 Tuesday Summer Reading. Surrogates Court Practice: Flexible Wills.

12:30–2:10 p.m. Sign-in and lunch from noon.21 Monday Computer Training: Photo Shop Elements. Session 1 of 3.

4:00–5:30 p.m. (ERC Room)22 Tuesday Summer Reading. Elder Law: Facts, Fiction & Case Law.

12:30–2:10 p.m. Sign-in and lunch from noon.24 Thursday Summer Reading. Commercial Practice: Dissolution of LLCs.

12:30–2:10 p.m. Sign-in and lunch from noon.28 Monday Computer Training: Photo Shop Elements. Session 2.

4:00–5:30 p.m. (ERC Room)29 Tuesday Summer Reading. Personal Injury–Opposing Summary

Judgment Threshold Motions. 12:30–2:10 p.m. Sign-in and lunch from noon.

30 Wednesday Summer Reading. Matrimonial: Avoiding Errors in Uncontested Divorce & QDRO Papers. 12:30–2:10 p.m. Sign-in and lunch from noon.

31 Thursday Summer Reading. Criminal Practice: Hot Topics. 12:30–2:10 p.m. Sign-in and lunch from noon.

August4 Monday Computer Training: Photo Shop Elements. Session 3.

4:00–5:30 p.m. (ERC Room)5 Tuesday Summer Reading. Family Court Practice: Law Guardians v.

Attorneys for Children. 12:30–2:10 p.m. Sign-in and lunch from noon.6 Wednesday Summer Reading. The CPLR: Selected Articles.

12:30–2:10 p.m. Sign-in and lunch from noon.7 Thursday Summer Reading. Real Estate: Reading Title Reports.

12:30–2:10 p.m. Sign-in and lunch from noon.12 Tuesday Summer Reading. Matrimonial: Evidence. 12:30–2:10 p.m.

Sign-in and lunch from noon.14 Thursday Summer Reading. Employment Law: Employment-at-Will

Doctrine. 12:30–2:10 p.m. Sign-in and lunch from noon.19 Tuesday Summer Reading. Bankruptcy Law: Effects of the New Act

Three Years Later. 12:30–2:10 p.m. Sign-in and lunch from noon.

21 Thursday Summer Reading. Trial Practice: Voir Dire (Criminal & Civil). 12:30–2:10 p.m. Sign-in and lunch from noon.

September5 Friday Academy Meeting of Officers and Volunteers. All invited.

7:30 a.m. Complimentary breakfast served.22 Monday One Client, Three Courts. La Bella Palermo (Babylon).

6:00 p.m. Sign-in from 5:30. Dinner. 24 Wednesday Social Security/Disability. 6:00–8:00 p.m. Sign-in and light

supper from 5:30.25 Thursday Professor David Siegel’s CPLR Update. Hyatt Wind Watch

Hotel. 6:30–9:30 p.m. Sign-in and deli buffet from 6:00 p.m.27 Saturday Day at the Races. Belmont Racetrack. 8 a.m. CLE Seminar;

Handicapping Seminar. Continental Breakfast; Lunch Buffet in Field & Turf Club. Tour. Five Stakes Races.

Summertime and the Reading Is Easy

ACADEMY OF LAW OFFICERS

Robert K. HowardHon. John KellyCheryl F. MintzFelix WienclawGail BlasieMichael S. BradyD. Daniel Engstrand, Jr.

Richard V. RappaportWayne J. SchaeferRobert G. WilkNancy E. EllisDiane K. FarrellRichard L. Filiberto

Allison C. ShieldsJohn C. ZaherHerbert KellnerMarilyn Lord-JamesLynn Poster-ZimmermanGeorge R. TilschnerStephen Ukeiley

DEANPatricia M. Meisenheimer

Executive DirectorDorothy Paine Ceparano

Five New Officers Join

the Academy Board

More Academy Newson pages 24;

CLE Course Listings on pages 22-23



Documents

LI Life Calendar - SCBA · 2008-07-09 · 2 THE SUFFOLK LAWYER — JUNE 2008 SCBA OF MEETINGS AND EVENTS All meetings are held at the Suffolk County Bar Association Bar Center, unless