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Queens Bar BulletinQueens Bar Bulletin

Queens Bar Bulletin

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

www.qcba.org

Vol. 72 / No. 6 / March 2009

BY DAVID H. ROSEN, ESQ.

This article continuesfrom Part I, which waspublished in the February2009 issue of the QueensBar Bulletin.

The two-judge dissent,while agreeing that “goodcause” is not shown heremerely by the merit of theunderlying application and lack of prejudice to theadversary, was unwilling to adopt the strict attitudeof the majority. In particular, the dissent pointed outthat the Brill and Miceli decisions simply ruled outlate summary judgment motions: the would-bemovant was not ultimately deprived of his day incourt. Here, the effect of a strict construction was todeprive the plaintiff wife of an “enormous moneyjudgment granted. . .against an opponent who hadthrown every possible obstacle in her path”.

In reversing, the Court of Appeals did not addressthe Appellate Division’s application of Brill and itsprogeny to Rule 202.48. Rather, it held the rule inap-plicable under the facts. The plaintiff wife was enti-tled to the money judgment as a result of the original1966 decision, which specifically directed the entryof a money judgment “without further order.” Thus,no settlement was required and Rule 202.48 wasinapplicable34. The point was reiterated in the 1996judgment and again in the decision on the 2000motion. There was thus no time limit on the entry ofthe money judgment, and no need for the 2000motion for leave to enter the money judgment. ThatSupreme Court had “unaccountably” added a direc-tion to “settle judgment” as a money judgment thewife was entitled to without a further order did notchange the result.

With the result reached by the AppellateDivision having been reversed, but its rationale nothaving been addressed, it remains an open questionwhether or not Rule 202.48 will remain subject tothe strict construction of time limits set forth in theoriginal Farkas decision. The prudent approach isto assume that it will be, and to take great care tosubmit or settle orders and judgments in a timelyfashion. It must not be assumed that the court willexcuse late submissions merely because there hasbeen no change in circumstances or prejudice to theadversary.

In Wilson v Galicia Contr. & Restoration Corp.,35

the Court of Appeals illustrated, yet again, that adefendant whose answer has been stricken for a will-ful failure to disclose is in the same position as if he

BY JOHN R. DIETZ, ESQ.

There is much that is new and noteworthy inGuardianship and Elder Law. The Courts,including the Court of Appeals, have renderedan array of interesting decisions. The legisla-ture has been active in making new laws. Andof course at the beginning of each new year theadministrative agencies are busy promulgatingprogram changes. What follows is a selectivesurvey of some of the recent Court decisions,new laws, and administrative changes.

Supplemental Needs Trusts: In Matter ofAbraham XX, 165, the Court of Appeals addressed thequestion as to whether the State can recover its remainderinterest in an amount equal to the total medical assistancepaid or whether the State is limited to the amount expend-ed from the trust’s effective date to the recipient’s death.Unfortunately, the Court decided the case in favor of theState.

The facts are familiar. Abraham XX suffered an injuryat birth. His institutional care was paid for by Medicaid.A personal injury suit was brought on behalf of AbrahamXX. The matter settled and the Medicaid lien at the time,$1.7 million, was paid in full. After years of litigation thesum of $2.17 million was retroactively placed into aSupplemental Needs Trust (SNT). There was an 18 monthgap, however, from the time of verdict and the date thetrust was funded. Abraham died on June 11, 2003.Medicaid sought reimbursement for payments made dur-ing the gap. Abraham’s mother argued the State was onlyentitled to recovery of Medicaid payments made after theSNT was funded. During the gap the payments were “cor-rectly paid” and not subject to recovery.

The Court rejected the mother’s argument. The Courtheld that when an SNT is established pursuant to SocialServices Law 366(2)(b)(2)(iii)(A) “the beneficiary explic-itly provides the State with a right to recover the totalMedicaid paid on behalf of the individual. There is notemporal limitation. The sole, though substantial, statedlimitation on the State’s recovery is the existence of

remaining assets in the trust upon the benefi-ciary’s death”.

Are SNT’s as valuable a planning tool nowas before the Court’s decision? There aremany advocates who contend that disabledindividuals, their families, and attorneys, mustnow give a hard critical look at the SNT,Medicaid, and other options before routinelycreating and funding this popular legal tool.

MHL §81.29: MHL §81.29 (d) has beenamended in connections with the authority ofthe Courts to vitiate wills and codicils of anIncapacitated Person. In Matter of Ruby S.,

N.Y.L.J., Feb. 11, 2002, Justice Thomas, Supreme Court,Queens County, took the then extraordinary step of void-ing the Last Will & Testament of an Incapacitated Person.The decision was both decried and hailed. The decisionseemed logical and fair. Why was it necessary to waituntil the death of the Incapacitated Person, sometimesmany years later, to challenge the validity of a will?Especially, when one considers that the IncapacitatedPerson may still be alive, the witnesses available, and theevents fresh in everyone’s minds.

On appeal Justice Thomas’ decision was left intact. TheAppellate Division deflected any decision on the groundsthat the appellant, who was the nominated executor andthe attorney drafter, lacked standing. Two months later,however, In the Matter of Lillian A., 307 A.D.2d 921, 762N.Y.S.2d 899 (2d Dept 2003), the Court stated that theSupreme Court did not have authority to revoke a last willand testament, citing to MHL § 81.29(d).

The legislature has now put the issue to rest. The Courthas no authority to invalidate a will or codicil, accordingto the amended MHL 81.29 (d). While the Supreme Courtmay amend, modify or revoke any previously executedpower of attorney, power of appointment, health careproxy, or any contract, conveyance, or disposition duringlifetime or to take effect upon death, made by the inca-pacitated person prior to the appointment of the guardianif the court finds that the person was incapacitated or if

________________________Continued On Page 14

I N S I D E T H I S I S S U EGuardian & Elder Law. . . . . . . . . . . . . . . 1CPLR Update . . . . . . . . . . . . . . . . . . . . . 1The Docket . . . . . . . . . . . . . . . . . . . . . . . 2President’s Message. . . . . . . . . . . . . . . . 3NYSBA Honors Dr. Parveen Chopra . . . . 4H-1B Visa Investigation Gets It Wrong . 4Matthew Lupoli Wins Award. . . . . . . . . . 4

New Rules of Professional Conduct. . . . 5Culture Corner. . . . . . . . . . . . . . . . . . . . . 6Pretrial Advocacy: An Ethical Checklist . 9Photo Corner . . . . . . . . . . . . . . . . . . 10-11Court Notes . . . . . . . . . . . . . . . . . . . . . . 12Marital Quiz . . . . . . . . . . . . . . . . . . . . . . 15Service Directory . . . . . . . . . . . . . . . . . 19

__________________________________Continued On Page 13

Guardian & Elder Law:New and Noteworthy

Check inside this month’s edition of the

for an update to the

2009 Queens County Bar Association Annual Directory

CPLR Update 2009

David H. Rosen, Esq.

John Dietz

THE QUEENS BAR BULLETIN – MARCH 20092

If you or someone you know is having a problem with alcohol, drugs or

gambling, we can help.

To learn more, contact QCBA LAC for a confidential conversation.

Confidentiality is privileged and assured under Section 499 of the Judiciary Laws as amended by

Chapter 327 of the laws of 1993.

Lawyers Assistance CommitteeConfidential Helpline 718 307-7828

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

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

Class of 2009Joseph F. DeFeliceGary Francis Miret

George J. Nashak, JrJerome D. PattersonNelson E. Timken

Class of 2010Gregory J. BrownJoseph Carola, IIIJohn Robert Dietz

Mona Haas

Class of 2011David L. CohenPaul E. Kerson

Timothy B. RountreeZenith T. TaylorJames J. Wrynn

2008-2009 Officers and Board of Managers

of the

Queens County Bar Association

STEVEN S. ORLOW - President

GUY R.VITACCO, JR. - President-Elect

CHANWOO LEE - Vice President

JOSEPH JOHN RISI, JR. - Secretary

RICHARD MICHAEL GUTIERREZ - Treasurer

Publisher: Long Islander Newspapers, LLC.

under the auspices of Queens County Bar Association. Queens Bar Bulletin is publishedmonthly from October to May.

All rights reserved. Material in this publication maynot be stored or reproduced inany form without permission.

©2009

The Queens County BarAssociation, Advertising Offices,

Long Islander Newspapers, 149 Main Street, Huntington,

New York (631) 427-7000

Arthur N. Terranova . . . Executive DirectorQUEENS BAR BULLETIN

EDITOR - LESLIE S. NIZINAssociate Editors - Paul E. Kerson, Michael Goldsmith & Peter Carrozzo

“Queens Bar Bulletin”(USPS Number: 0048-6302) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY 11743,under the auspices of the Queens County Bar Association.Entered as periodical postage paid at the Post Office at Jamaica,New York and additional mailing offices under the Act ofCongress. Postmaster send address changes to the QueensCounty Bar Association, 90-35 148th Street, Jamaica, NY11435.

Jeffrey Lawrence DavisManuel FabianUsman Ahmed FarooquiMark FriedmanJennifer Garcia

Chanjoo MoonHelene C. PraegerTeresa PrincipeJonathan RiceJuan San Pedro

Joseph Francis SensaleOlga Someras

George C. Godfrey, Jr.

TH E DO C K E T . . .

NE W ME M B E R S

NE C R O L O G Y

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

Jamaica, New York 11435

Editor’s Note: Articles appearing in the Queens Bar Bulletin represent the views of the respective authors and do not necessarily carry the endorsement of the

Association, the Board of Managers, or the Editorial Board of the Queens Bar Bulletin.

March 2009Wednesday, March 4 Court Evaluator TrainingThursday, March 12 How to Obtain Court AppointmentsWednesday, March 18 CPLR & Evidence UpdateMonday, March 23 Past Presidents & Golden Jubilarians Night

April 2009Wednesday, April 1 Equitable Distribution UpdateThursday, April 2 Ethics SeminarMonday, April 6 MHL Article 81 Guardianship TrainingTuesday, April 21 Judiciary NightWednesday, April 22 Selection of a JuryThursday, April 23 Basic Criminal Law Seminar – Part 1Wednesday, April 22 No Fault Arbitration 2009Thursday, April 30 Basic Criminal Law Seminar – Part 2

May 2009Thursday, May 7 Annual Dinner & Installation of OfficersThursday, May 14 Lawyers Assistance SeminarTuesday, May 19 Bankruptcy SeminarWednesday, May 20 All You Might Want to Know About LLC’sThursday, May 21 Wine & Cheese - TENTATIVE

2009 SPRING CLE Seminar & Event Listing

CLE Dates to be Announced

Elder LawJuvenile Justice LawLabor Law

Real Property LawSurrogate’s LawTaxation Law

QUEENS COUNTY BAR ASSOCIATION

SCHOLARSHIP FUND

Dear Members:

The Queens County Bar Association’s Scholarship fund was creat-ed to offer financial assistance to law students who are residents ofQueens County or attend law school in Queens County.

The recipients of the QCBA Scholarship are carefully chosen basedon academic achievement, community service and financial need.

Your tax deductible donation will help to support and recognizethose law students who provide community service to the residents ofQueens County. It also enhances the good name of our Association.

As President of the Queens County Bar Association, I urge you tosupport this valuable community-based program.

Sincerely,

STEVEN S. ORLOWPresident

A "CULTURE OF CIVILITY"

Arguably, aside from an actual battle-field, the legal field, and in particular, thecourtroom is the most inherently adver-sarial arena in our society. Would it notbehoove us, as participants in that scene,to endeavor to minimize in every waypossible contributing factors to the stressin that environment?

The courtroom and the litigationaccompanying it is, indeed, a forum thatby its very nature invites strain, tensionand even anxiety. The sources of this arealmost endless. Waiting idly for hourswhile work pressures build in youroffice, appearing before jurists who seemunreasonable in their demands (each ofhundreds of jurists setting forth differentrequirements), clerks that are convincedthat you, the attorney, are an annoyanceand the fact they assist you is a gift fromthem to you, court officers who belittle

and insult the attorneys in acourtroom by their courtroomdemeanor and, perhaps mostdistressing of all, the utterlack of consideration oftenexhibited by some attorneysfor their colleagues by thecavalier attitude they seem todemonstrate through tardyappearances and the failure toexert an effort to communi-cate.

To have the inherent stress-es of the litigation processaggravated by what amounts to extrane-ous exasperating annoyances is unneces-sary. Just as the Bar Association isendeavoring to streamline court proce-dures and bring the courthouse into the

21st century so, too, we should under-take a concerted effort to improve thecourthouse "quality of life" for the liti-gating attorney by striving to create a

"Culture of Civility" in ourcourts.

As for civility betweenattorneys, we must all con-tribute to that goal. First, actin good faith and then, makethe assumption that youropposing attorney is acting ingood faith as well. And com-municate! You will be late foran appearance, you can onlymake "second call", let theother attorneys know. Youwill appear on a discovery

motion, call your "adversary" and makean effort to work out details that may cur-tail the time necessary to be in court. Ifyou have to run to another part, leave yourcell number on the posted calendar, orwith your adversary, so both your adver-sary and the judge need not be kept wait-ing and guessing when you will return.

As the Administration of Law/Judicial

Relations Committee of the BarAssociation has endeavored in the past,with more success than not, to affect andalter the distressing proclivities of cer-tain judges that are brought to theCommittee’s attention by attorneys, sotoo this committee will endeavor to dealwith situations involving attorneys,clerks or court officers that are broughtto its attention. The committee will takeaction – but the true key is that situationsrequiring attention MUST be brought tothe Committee’s attention – and it is onlyyou that can do that! Have a judge that isa problem, tell us. A fellow attorney thatis obnoxious, let us know. A clerk orcourt officer that skipped those days inkindergarten when manners were taught,don’t keep it a secret.

There is so much we can do if we putour minds to it. Also rest assured thatyour Bar Association is both eager andready to do its part as well.

THE QUEENS BAR BULLETIN – MARCH 2009 3

PR E S I D E N T ’S ME S S A G E

Steven Orlow

The New York State Bar Association(NYSBA), with over 76,000 members, isthe largest voluntary association of attor-neys in the United States founded in 1876.This year has decided to confer Dr.Parveen Chopra with the PrestigiousHaywood Burns Memorial Award for hisoutstanding work in civil and HumanRights. Of major significance, Dr. Choprais the first South Asian honored in the his-tory of the One Hundred Thirty Three yearold organization.

The award was presented by theCommittee on Civil Rights ChairFernando Bohorquez Esq. (Baker Hostelerllp) at the New York Marriott Marquis inManhattan, as part of the Association’s132nd Annual Meeting. Every year onlyone person is chosen for this award basedon outstanding contributions of anAmerican Civil rights leader who had sig-nificantly impacted civil rights inAmerica. Previous award winners of theAward include Honorable United StatesFederal Judge Cornelius V. Blackshear;Honorable Justice Ellen M. Yacknin;Honorable Pam Badoria Jackman Brown.

Dr. Chopra has a long history of com-munity service including previously serv-ing as the first Asian Commissioner ofHuman Rights for 20 years and the firstIndian American appointed to PublicOffice on the Eastern Seaboard of theUnited States. He also served asCommissioner of Planning in NassauCounty for six years improving the qualityof life of 1.3 million Americans. He cur-rently serves on the Board of the BhartyaVidhya Bhavan, UNYFCE, and theNYCLU in Nassau. He has previouslybeen honored with Awards of distinctionfrom the One Hundred Black Men USA,Martin Luther King Jr. Award and thehighly distinguished Ellis Island Medal ofHonor a distinction he shares with formerPresidents, several noble laureates andother distinguished Americans. His contri-butions to American life have been consid-ered as outstanding and also recognized bythe US Congress and Senate. Dr. Choprahas been a life time educator and Professorin Graduate Schools of Business and holdsa PhD, MBA, LLB and 4 other Mastersdegrees.

W. Haywood Burns, was a longtimecivil rights advocate who worked with theRev. Dr. Martin Luther King Jr., He grad-uated from Harvard College with honorsand from Yale University Law School in1966. Mr. Burns joined the New York lawfirm of Paul, Weiss, Rifkind, Wharton &Garrison, and later became law clerk toJudge Constance Baker Motley of UnitedStates District Court. From there, hebecame counsel to the NAACP LegalDefense and Education Fund Inc andwhere he served as general counsel toMartin Luther King Jr.'s Poor People'sCampaign in 1968.

Five leaders who shared their views onDr. Chopra’s community activism includ-ed NYSBA Chairperson of Civil RightsMr. Fernando Bohorquez who said Dr.Chopra has a long standing in Asian com-munity and American public life in humanrights and civil rights in America. Hiswork with so many diverse organizationsin protecting the rights of common man isvery admirable. Padam Shri Dr. P.Jayaraman emphasized Dr. Chopra’s workas President of the Federation of IndianAssociations, as National Secretary ofNational Federation of IndianAssociations in organizing India DayParade, functions in various cities ofAmerica, liason with the White House andmany American leaders and particularlywith the Bhavan USA where he is a greatasset. Rev. Reginald Tuggle, a nationalAfrican American leader said that Dr.Chopra’s work for the Dr. Martin LutherKing Executive Committee where heserves as a treasurer has helped it tremen-dously in raising enormous amounts ofscholarship funds and also realizing Dr.King’s dreams in rooting out discrimina-tion through Human Rights Commission,Civil Liberties Board and several nationalorganizations. Rabbi Perl who wasCommissioner of Human Rights, NationalExecutive Director of National Coalitionfor Furtherance of Jewish Education andChhabad of Mineola, New York men-tioned in his speech that under Dr.Chopra’s leadership the Commissioninvestigated cases of discrimination andmade determinations based on race, reli-gion, sex, age, national origin, physical

handicap and helped countless people toget their jobs back or appropriate settle-ments in regards to compensation and pen-sion benefits. Under his leadership of theCommission they set up policies to fightdiscrimination in housing as well as publicconveniences. Dr. Chopra lead the team toprepare rules of procedure for discrimina-tion in housing to be followed by thejudges and also lead the team to interviewand select Housing Court Judges that willreduce discrimination even further inthese areas in the future. Mr. Giri Chhabra,President of Hindu Center in New Yorksaid his leadership to Indian-Americancommunity and particularly to HinduCenter for the last few years has beenexemplary and outstanding.

Dignitaries who attended the functionincluded Honorable Judge FrankSchellace of Supreme Court; Hon. JudgeSharon Stern Gertsman of Supreme Court,Hon. Thomas Levin, Hon. Judge ElizabethDalal Pessala from Long Island, Hon.Judge Helena Heath-Roland from AlbanyCity Court, Hon. Senator Toby Stavisky,Hon. Senator Hiram Monserrate, Hon.Assemblyman Andrew Hevesi, Hon.Assemblywoman Nettie Mayersohn, Hon.Assemblywoman Vivian Cook, Hon.Assemblyman Michael Den Dekker, Hon.Assemblyman Mark Weprin, Hon.Assemblyman Jose Peralta, Hon.Assemblywoman Meng, Hon. Councilman

and Chair of Finance David Weprin fromNew York City, Hon. Councilman JohnLiu, Hon. Councilwoman Gail Bewer,Hon. Councilman Thomas White, Hon.Councilwoman Leslie Gross from Town ofNorth Hempstead, Mr. Steven Richman –General Counsel NYC Board of Elections,Ms. Nara Rampilla – Special Counsel tothe United Nations, Hon. Padam Shree Dr.P. Jayaraman founder of Bhartiya VidyaBhavan USA, Dr. A.M. Gondane DeputyCouncil General in New York, Rev.Reginald Tuggle African American leaderof Council of Churches, Mr. Julius Pearsefounder President of Dr. Martin LutherKing Foundation, Rabbi Anchelle Perl anational Jewish leader who has his ownnational radio and television programs,Rabbi Moses Birnbaum of Kew Gardenssynagogue, Mr. Tony Patino chairperson ofCoalition of Association of HispanicAmericans, Ms. Petsy Chen President ofTaiwanese Center, Mr. Giri ChhabraPresident Hindu Center and Temple, Mr.Kailash Sharma President of Nargis DuttMemorial Foundation, Brahma KumariAnjani from Global Harmony House, Mr.Darshan Bagga chairperson of Sikh Forumand Senior representatives from theUnited States Attorney’s Office inManhattan, Queens and Kings County aswell as District Attorney’s Offices fromNew York City, Long Island, Albany,Buffalo and other cities.

New York State Bar Association Honors Dr. Parveen Chopra With The Distinguished Haywood Burns Memorial Award

Mr. Samir Chopra, Mrs. Usha Chopra, Fernando Bohroquez (NYSBA Chair of Civil

Rights), Dr. Parveen Chopra (2009 Haywood Burns Memorial Honoree)


BY ALLEN E. KAYE

The Associated Press continues to runpoorly researched pieces on H-1B visasand the Banks receiving "bailout" moneyfrom the Federal Government. The articlesleave the false impression that as the Bankswere taking bailout money, they weresimultaneously firing U.S. workers and hir-ing "cheap" foreign labor. The AP articlesare based on faulty interpretations of pub-licly available data, and totally ignore thestrong labor market protections required tobring H-1B professionals to the U.S.

The faulty and inflammatory AP articlesare now being used by Senators Sandersand Grassley to push an amendment ontothe pending economic stimulus bill thatwould bar banks and other financial insti-tutions that accept funding under the

"TARP" legislation from hir-ing a single foreign profes-sional under the H-1B pro-gram.

Let's set the record straight.The AP article refers to thenumber of "labor conditionapplications" (LCAs) filed bycertain banks over the past 5years. The LCA applicationsare a precursor to an actualpetition for an H-1B worker. MultipleLCAs are usually filed for each employeedue to heavy regulatory requirements,such as the need to file LCAs for differentgeographic locations to comply with wagerules, and many LCAs never turn intoactual petitions. The reporters neglected tounderstand, or to examine, the actual peti-tions for H-1B professionals that were

granted under the program inany given fiscal year. Had theylooked at the available data,they would have found figuresthat undercut their allegations.

It is not possible to get aclear idea of numbers of H-1Bvisas by looking at LCAs. Onemust look at petitions filedwith the U.S. Citizenship andImmigration Services, which

is what the National Foundation forAmerican Policy (NFAP) did. In fact,according to the NFAP, the largest finan-cial institution in the country, in terms ofemployees, actually received a grand totalof 155 approved petitions for new H-1Bprofessionals in 2007, out of a total work-force of 387,000! Bank of Americareceived approved petitions for 66 new H-1B professionals in a total workforce of210,000. In another recent study, theNFAP found that for every H-1B profes-sional hired, a company will increase itsoverall workforce by 5 workers.

Existing law carefully protects wages byrequiring that companies pay the higher ofthe wage paid by their competitors forcomparable positions or the wage the com-pany itself pays to other comparable work-ers. These protections are enforced by theDepartment of Labor and non-complianceincludes heavy penalties, including com-plete bars from petitioning for any foreignworker. To further show the currentstrength of the H-1B program, the monies

used to enforce these law comes from theH-1B employers, who pay governmentfees of $2,320 each time they file an H-1B,including $500 earmarked specifically forenforcement of the law!

A recent edition of the New York Timesincludes a business section article thatpoints out how foreign companies withU.S. subsidiaries and U.S. companies withinternational operations are absolutelycritical to the stimulus plan working. Asenior manager of Sanyo's solar divisionsays that America is positive about solarenergy, "but it doesn't have enough pro-duction capacity to cover its demand."These are the very companies that need tobe able to target talent in the internationalmarket to make their U.S. operations growand prosper.

U.S. economic recovery and growthdepends on the U.S. remaining competi-tive in a globalized economy with a glob-alized work force. These are the facts thatCongress needs to consider as it crafts newlegislation. What is needed is a proper,well-documented study on H-1B visanumbers and usage, and an agreement onthe appropriate amount of H-1B visasneeded to meet real and legitimate need, inthe context of employment rate rise or fall.Legislation based on faulty and inflamma-tory allegations will only cripple our econ-omy, undermine our nation's global com-petitiveness, and demagogue an issuerather than deal with real solutions thatserve the national interest.

“Investigation” of Banks’ Usage of H-1B Visas Gets It Wrong

Matthew Lupoli - 2009Sheeger Award Winner

BY MARK WELIKY*

Queens Family Court can be a diffi-cult place to carry on your law practice.At least the current courthouse (picturedabove) is a lot nicer venue since thecourt was moved from ParsonsBoulevard. The old courthouse wasoriginally the main branch of theQueensborough Public Library andshould never have been a courthouse inthe first place! Although family law canbe a challenging arena some of ourmembers still find time within theirpractice to volunteer for pro bonoassignments for these cases.

One such volunteer lawyer is MatthewM. Lupoli. Matthew has been selectedto be the recipient of the Floyd AlanSheeger Award for 2009. This awardpresented by the Queens County BarAssociation (QCBA) and the QueensVolunteer Lawyers Project (QVLP) is inrecognition of outstanding pro bonoservice by a Queens family law practi-tioner. Floyd Sheeger was himself oneof our most exceptional pro bono volun-teer lawyers in Queens Family Courtuntil his untimely death in late 2004.This award is presented to lawyers whocarry on his tradition of service to thoseleast able to cope with the serious issuesthat low-income persons may be facingwith family law situations.

Matthew, a Flushing solo practitionerwith a focus on family and elder law, isa graduate of Fordham Law School, amember of the QCBA since 1974 and amember of the QVLP pro bono panelsince its inception in 1991. He is beinghonored for his continuing service to the

pro bono program and for the numerouscases for which he has provided probono representation over these manyyears. Over the years he has served onseveral QCBA committees, includingJudiciary, Family Law, AppellatePractice and the Elderly and Disabledcommittee. He is a past president of theQueens County Columbian Lawyers anda member of the Flushing Lawyer’sAssociation and of the Long Island CityLawyers Club. Mr. Lupoli recentlyjoined with many of his QCBA col-leagues in volunteering for our newforeclosure prevention initiative. Pastrecipients of the Sheeger Award areQCBA members Michael M. Cohen andRegina Alberty. We salute Matthew andcongratulate him for this honor andthank all of our pro bono volunteers fortheir service to our association and to thecommunity of Queens County.

*Mark Weliky is the Pro BonoCoordinator of the Queens County BarAssociation.

The Queens County Family Court

Oh yeah – gotta remember –

put in my ad subscription for the

2009 QCBA Annual Dinner Journal!

(Annual Dinner is May 7th)

Allen E. Kaye

EMPLOYMENT & LABOR LAW

STEPHEN D. HANS & ASSOCIATES P.C.Counsel to the Profession

Counsel to the Profession - over three decades

Chairperson - Labor Relations Committee - Queens County Bar.

Association of the Bar - Employment Law Panel Member.

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Effective April 1, 2009, a new “Rules ofProfessional Conduct” will replace theexisting Disciplinary Rules in New York.

In February 2008, the New York StateBar Association submitted to theAdministrative Board of the Courts a five-year study that included a proposed newethics code. An internal committeeappointed by the Administrative Boardcarefully analyzed the State Bar’s pro-posed rules over a period of severalmonths before issuing its recommenda-tions to the Board. The Board in turnapproved most of the State Bar’s propos-als, though in some instances it retainedthe language of existing DisciplinaryRules in whole or in part. The Board alsoapproved the State Bar’s recommendedtransition to the ABA Model Rules for-mat. The Rules were formally reviewedand adopted by the Justices of the fourAppellate Divisions last week.

Highlights of significant ethics changescontained in the new Rules of ProfessionalConduct are set forth below:

Adoption of ABA Model Rules Format• This standardized format, used in 47

other states, is organized according to alawyer’s role as litigator, counselor, nego-tiator, etc., and will facilitate a lawyer’sability to assess specific ethical issues incontext. It has generated a national body ofethics law that will ease ethical researchand guidance by New York lawyers as wellas out-of-state lawyers seeking to researchand follow New York’s rules.

Scope of Representation and Allocationof Authority Between Client and Lawyer(Rule 1.2)

• Rule 1.2 codifies a lawyer's obligationto abide by a client’s decisions regardingthe objectives of representation, includingwhether to settle a civil matter or to enter aplea, waive a jury trial or testify in a crim-inal matter.

Fees and Division of Fees (Rule 1.5)• Rule 1.5(b) requires a lawyer to com-

municate fees and expenses to the clientbefore or within a reasonable time aftercommencement of representation, therebyextending the current letter of engagementrule (22 NYCRR 1215), without the neces-sity of a writing, to all matters currentlyexcepted under that rule.

Confidentiality of Information (Rule 1.6)and Conduct Before a Tribunal (Rule 3.3)

• Rule 1.6(a)(2) permits disclosure ofconfidential client information impliedlyauthorized to advance the client’s bestinterests when it is reasonable or custom-ary.

• Rule 1.6(b) permits a lawyer to revealor use confidential client information nec-essary to “prevent reasonably certain deathor substantial bodily harm.”

• Rule 1.6(b)(4) permits a lawyer toreveal confidential information to theextent necessary to secure legal adviceabout compliance with ethical rules orother laws.

• Rule 3.3 requires a lawyer to correct afalse statement of material fact or law pre-viously made to the tribunal by the lawyeror the client and to take necessary remedi-al measures, including disclosure of confi-dential client information.

• Rule 3.3 requires a lawyer who knowsthat a person intends to, is or has engagedin criminal or fraudulent conduct related tothe proceeding to take reasonable remedialmeasures, including disclosure of confi-dential client information.

Current Clients: Specific Conflict ofInterest Rules (Rule 1.8)

• Rule 1.8(c) prohibits a lawyer fromsoliciting any gift from a client, including atestamentary gift, for the benefit of thelawyer or a person related to the lawyer; orfrom preparing on a client’s behalf aninstrument giving a gift to the lawyer or aperson related to the lawyer, unless thelawyer or recipient of the gift is related tothe client and a reasonable lawyer wouldfind the transaction fair and reasonable.

• In a business transaction betweenlawyer and client, Rule 1.8(a) requires thelawyer to advise the client in writing toseek the advice of independent counsel andto give the client a reasonable opportunityto do so; and the client must give informedwritten consent that addresses the lawyer’srole in the transaction and whether thelawyer is representing the client in thetransaction.

Special Conflicts of Interest for Formerand Current Government Officers andEmployees (Rule 1.11)

• Rule 1.11 governs the lawyer’s obliga-tions based on conflicts presented when alawyer moves from government to privateemployment and vice versa, and providesthat such conflicts may be waived by the

government entity upon informed consent.Duties to Prospective Clients (Rule 1.18)• Rule 1.18 governs a lawyer’s duties

to a prospective client when that personand the lawyer ultimately do not forman attorney-client relationship. Itapplies the same duty of confidentialityowed to former clients. However, alawyer or law firm may nonethelessoppose a former prospective client if thelawyer’s current client and formerprospective client give informed writtenconsent, or the law firm may do so ifcertain conditions are met, includingtimely screening of the disqualifiedlawyer and prompt written notice to theformer prospective client.

• The protections of Rule 1.18 areexpressly denied to a prospective clientwho communicates with a lawyer in orderto disqualify the lawyer from handling amaterially adverse representation in thesame or a substantially related matter.

Voluntary Pro Bono Service (Rule 6.1)• Though not enforceable through the

disciplinary process, Rule 6.1 reaffirms alawyer’s responsibilities to provide at least20 hours of pro bono legal services eachyear to poor persons, and to contributefinancially to organizations that providelegal services to poor persons.

Other Noteworthy Developments• Rule1.3 (Diligence) mandates that a

lawyer "shall not neglect" a legal matterand obliges a lawyer to “act with diligenceand promptness” in representing a client.

• Rule 1.4 (Communication) codifies alawyer’s duty to communicate effectivelywith the client, including keeping the clientreasonably informed about the status of thematter promptly complying with a reason-

able request for information. • Rule 1.12 applies conflicts rules to arbi-

trators and mediators, other third-partyneutrals and law clerks.

• Rule 1.14 provides guidance to a lawyerwhose client has diminished capacity. Itallows the lawyer to take action to protectthe client from substantial physical andfinancial harm, and permits disclosure ofconfidential client information to the extentreasonably necessary to protect the client’sinterests.

• Rule 2.4 deals with lawyers serving asthird-party neutrals, such as arbitrators andmediators, and sets forth their obligationswith respect to unrepresented parties.

• Rule 3.2 prohibits a lawyer from usingmeans that have no substantial purposeother than to delay or prolong a proceedingor cause needless expense.

• Rule 3.9 requires a lawyer to alert leg-islators and administrative agencies as towhen the lawyer is speaking as a paidadvocate rather than a public citizen.

• Rule 4.3 sets forth a lawyer’s obliga-tions when dealing, on behalf of a client,with a person who is not represented bycounsel.

• Rule 6.4 sets forth a lawyer’s dutieswhen participating in law reform activitiesthat may affect the interests of the lawyer’sclients.

• Rule 8.2 expands the prohibitionagainst false statements of fact regarding“qualifications” of judges or judicial candi-dates to include false statements about“conduct or integrity.”

The new Rules of Professional Conductare available atwww.nycourts.gov/rules/jointappellate/.

New Rules of Professional Conduct


BY HOWARD L. WIEDER

THE 92ND STREET Y continues itsphenomenal Spring 2009 program. TheMET OPERA has tickets left for Cycle 1of Wagner’s RING, so please do not waitfor the last minute to order your tickets,since Cycles 2 and 3 are already sold out.Also, The Met Opera’s production of ILTROVATORE runs through mid-Maywith two all star casts. Both THE 92NDSTREET Y and the MET OPERA, evenin his hard economy, deserve and merityour patronage, since they constantlypresent programs and productions ofexcellence.

THE 92ND STREET Y PRESENTSShai Wosner will make his 92nd Street

Y debut in the final concert of the Mastersof the Keyboard series, Saturday, March14, 2009. This talented young pianist willperform Schumann’s Nachtstücke(Nightpieces) and Carnaval, as well asClaude Debussy's popular, contemplative,and adventurous Préludes, Book 1.Despite the chronological distance betweenthese two composers, Mr. Wosner drawsperceptive parallels between their pianoworks, making this performance an exam-ple of the Y’s unique ability to present con-certs that are both musically rich and intel-lectually stimulating.

Shai Wosner performs a wide-rangingrepertoire, from Mozart and Beethoven toLigeti and composers of his own genera-tion. In recent seasons, Wosner hasappeared with numerous major orchestrasin North America and Europe, includingre-engagements with the Los AngelesPhilharmonic, the Philadelphia Orchestra,the symphony orchestras of Chicago,Baltimore, San Francisco and Atlanta;Staatskapelle Berlin, the GothenburgSymphony, the Barcelona Symphony, theFrankfurt Radio Symphony, and OrchestreNational de Belgique, among others. In2006 he debuted with the ViennaPhilharmonic during the 250th anniversarycelebrations of Mozart's birth, in Salzburg.As a chamber musician, he has collaborat-ed with numerous esteemed artists includ-ing Pinchas Zukerman, Lynn Darrell,Who-Lang. Lin, and Christian Tetzlaff.

Tickets are $48/$38 ($25 for ages 35and younger) and may be purchased bycalling 212.415.5500, visitingwww.92Y.org/concerts, or at the boxoffice. The 92nd Street Y is located at1395 Lexington Avenue at 92nd Street.

The 92nd Street Y's DistinguishedArtists in Recital series continuesSunday, March 15, when violinist NIKO-LAJ ZNAIDER performs an afternoon of

chamber music with musi-cians from the New YorkPhilharmonic and his regularrecital partner, pianist SaleemAbboud Ashkar. This concertcontinues the 92nd Street Y'spartnership with the NewYork Philharmonic, whichgives audiences the opportunityto hear these preeminentorchestral players in a chambermusic setting with guestsoloists from around the world.

The program begins with FelixMendelssohn's popular Piano Trio No. 1in D minor, Op. 49, the work that prompt-ed Schumann to state that "Mendelssohn isthe Mozart of the nineteenth century, themost illuminating of musicians." The sec-ond piece, Johann Sebastian Bach'sSonata for Violin & Harpsichord No. 4in C minor, BWV 1017, which will beperformed with piano, is one of six duosonatas written with fully realized parts forboth instruments. The afternoon's finalwork, Mendelssohn's String Octet in E-flat Major, Op. 20, was written when thecomposer was only 16 years old and pre-miered at one of his family's famousSunday musicales.

Born in Denmark to Polish-Israeli par-ents, NIKOLAJ ZNAIDER studied withthe eminent Russian pedagogue BorisKushnir, and has already worked withmany of the world's top ensembles andsoloists. Drawing from an eclectic back-ground, his playing has been heralded inthe Strad as “extraordinarily intelligent,soulful and impassioned, yet without a hintof indulgence.” In January 2008, Znaidermade his recital debut at the ViennaMusikverein to much critical acclaim, andDie Presse wrote, “for many, the 32-year-old is already today the best violin-ist of the world.”

A keen recitalist and chamber musician,Znaider has shared the stage with today'sforemost artists, including DanielBarenboim, Leif Ove Andsnes, YuriBashmet, Yefim Bronfman, Lynn Darrell,Lang Lang, and Pinchas Zukerman. Alsopassionate about musical education,Znaider is Founder and Artistic Directorof the Nordic Music Academy, an annualsummer school that aims to foster con-scious and focused musical developmentbased on quality and commitment. Znaideris an exclusive RCA RED SEAL/BMGSONY MASTERWORKS recordingartist, and his most recent project, arecording of the complete Mozart PianoTrios with Barenboim and KyrilZlotnikov, has just been released on EMIClassics.

Tickets are $48/$38 (ages 35and younger, $25) and may bepurchased by calling212.415.5500, visitingwww.92Y.org/concerts, or atthe box office. The 92nd StreetY is located at 1395 LexingtonAvenue at 92nd Street.

The ZukermanChamberPlayers' final 92ndStreet Y concert of the season,on Sunday, March 22, wel-comes world-renowned pianist

YEFIM BRONFMAN, a long-time friendof both Pinchas Zukerman and the Y.Joined by double bassist JoelQuarrington, the ensemble's performancefeatures an up-close and personal look atthe two electrifying chamber works fea-tured on the May 2008 Sony Classicalrecording by the ZukermanChamberPlayers and Bronfman: Mozart'sQuartet for Piano and Strings in E-flatMajor, K. 493, and Schubert's popular"Trout" Quintet.

A prodigious talent recognized world-wide for his artistry, PINCHAS ZUK-ERMAN has been an inspiration toyoung musicians throughout his adultlife. In a continuing effort to motivatefuture generations of musicians througheducation and outreach, the renownedartist teamed up with four protégés toform the Zukerman ChamberPlayersduring the 2002–03 season.

Yefim Bronfman was born in Tashkentin the Soviet Union in 1958. After immi-grating to Israel with his family in 1973,he made his international debut two yearslater with Zubin Mehta and the MontrealSymphony. He made his New YorkPhilharmonic debut in May 1978, hisWashington recital debut in March 1981 atthe Kennedy Center, and his New Yorkrecital debut in January 1982 at the92nd Street Y. In addition to acclaimedsolo, orchestral, and recording careers,Bronfman is a devoted chamber music per-former who has collaborated with theEmerson, Cleveland, Guarneri, andJuilliard String Quartets, as well as theChamber Music Society of LincolnCenter. He has also played chamber musicwith Yo-Yo Ma, Joshua Bell, LynnDarrell, Shlomo Mintz, Jean-PierreRampal, Pinchas Zukerman, and manyother artists.

Tickets may be purchased by calling212.415.5500, visiting www.92Y.org/con-certs, or at the box office. The 92nd StreetY is located at 1395 Lexington Avenue at92nd Street.

Musica Sacra, one of New York’s mostdistinguished professional choruses,

presents the final concert of their season onMarch 20, 2009 in the Rose Theater,Home of Jazz at Lincoln Center. Underthe leadership of music director KentTritle, the evening’s program celebratesthe confluence of well-established artistsand the next generation of musical talent.Highly-regarded pianist Margo Garrettpairs with the Sorel Organization’sMedallion in Collaborative Piano winnerSunglee Victoria Choi to accompany thechorus in performing Brahms’s rarelyheard piano four-hands version of EinDeutsches Requiem, featuring sopranoLeslie Fagan and Lindemann Young Artistbaritone John Michael Moore. Ms.Garrett and Ms. Choi will also collaboratein Schubert’s Fantasia in F minor, whileMs. Choi will accompany Mr. Moore forMahler’s Lieder eines fahrenden Gesellen.

Founded in 1964, Musica Sacra is thelongest continuously performing profes-sional chorus in New York City. In a cityrich with cultural life and activity, MusicaSacra stands out as one of the few out-standing presenters of choral music dedi-cated to communicating art through theprofound human experience and connect-edness of ensemble singing. In addition toits acknowledged affinity for Baroquemusic, Musica Sacra has performed in allstyles, from the chant of Hildegard to com-missioned works and first performances ofleading contemporary composers, such asDiamond, Britten, Khatchaturian, Convery,and Rorem. They have recorded on RCA,BMG, and Deutsche Grammophon.

Tickets are $25-$110 and are availableat www.MusicaSacraNY.com/tickets orby calling CenterCharge at 212-721-6500(TTY 212-957-1709).

The 92nd Street Y's Art of the Guitarseries celebrates the 50th anniversary ofLos Romero, “the royal family of theguitar.” The group marking this amazingmilestone with an entire year of concertsacross the globe, and will make its onlyNew York appearance of the season atthe Y on Saturday, March 21, 2009.

These three generations of master gui-tarists are a musical phenomenon, knownfor taking audiences on journeys exploringthe genre’s most beautiful, challengingand thrilling works. At the Y, Pepe, Celin,Celino, and Lito will celebrate the ensem-ble's 50th anniversary, and have chosenhighlights of its career: Tomás Bretón'sPrelude to La Verbena de la Paloma,Gaspar Sanz's Suite española, JoaquínRodrigo's Tonadilla, JeronímoGiménez's La boda de Luís Alonso,Georges Bizet's Carmen Suite, Selections

Howard L. Wieder

TH E CU LT U R E CO R N E R

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from Heitor Villa-Lobos's Five Preludesfor Guitar, selections from EnriqueGranados Danza españolas, FranciscoTárrega's Jota aragonesa, and two worksby Pepe Romero: Farrucas de Sabicasand De Cádiz a la Habana. The concert ispreceded by a 7 pm talk with Art of theGuitar's artistic director Benjamin Verdery.

In addition, on Sunday, March 22 at11:30am, as part of the 92nd Street Y'sGuitar Institute, Los Romero will offer aguitar master class.

Grandfather Celedonio Romero origi-nally founded Los Romero with his sonsCelin, Pepe, and Angel. Celedonio beganhis solo career in Franco's Spain, and aseach of his sons reached the age of two orthree they began guitar lessons with theirfather. All three made their debuts in Spainby the age of seven. In 1957, while the boyswere still in their teens, the family emigrat-ed to the United States and "The Romeros"entered the world's stage as its first guitarquartet. The ensemble added its third gener-ation when Celin's son, Celino, replacedAngel in 1990. Angel's son Lito joined thequartet upon the death of his grandfather in1996.

Spanish composer Joaquín Rodrigo says:"The Romeros have developed the tech-nique of the guitar by turning what is dif-ficult into something easy. They are,without a doubt, the grand masters of theguitar."

Los Romero has performed hundreds ofconcerts all over the world, inspiring enthu-siastic praise from both critics and audi-ences. The ensemble has also worked toenrich the guitar quartet repertoire, premier-ing works by distinguished composersincluding Joaquín Rodrigo, FedericoMoreno Torroba, Morton Gould, Franciscode Madina, Lorenzo Palomo and others.Los Romero has appeared on numerous tel-evision programs including the Today andTonight shows, as well as numerous PBSspecials, including Evening at Pops.

Tickets are $48/$38 (Ages 35 andyounger, $25) and may be purchased bycalling 212.415.5500, visitingwww.92Y.org/concerts, or at the box office.The 92nd Street Y is located at 1395Lexington Avenue at 92nd Street.

With the Great Ensembles series, the92nd Street Y continues its tradition of giv-ing international ensembles the opportunityto perform for New York audiences. Theseries' next concert, on March 28, 2009,features the Nash Ensemble of London,recognized as one of the UK's most talentedand adventurous chamber ensembles.Following its critically acclaimed New

York debut at the 92nd Street Y in 2007,the Nash Ensemble was promptly re-invitedback to give New York audiences anothertaste of its electrifying music making.

The first work of the Nash Ensemble'sMarch program, Wolfgang AmadeusMozart's Trio for Piano, Clarinet &Viola, K. 498, is rumored to have beenwritten while the composer was participat-ing in a game of skittles (a type of bowling).The next piece, the Quintet for Clarinet,Horn, Piano & Strings, is an early workby one of Britain's most popular andaccomplished composers, Ralph VaughanWilliams. The third work, the Suite fromL'histoire du Soldat for Clarinet, Violin &Piano, was arranged by Igor Stravinskybased on his popular theatrical work abouta soldier who trades his fiddle to the devilfor a book that predicts the economy'sfuture. The Nash completes the programwith the second of Antonín Dvorák's twopiano quartets, the Quartet for Piano andSt rings in E-flat Major, Op. 87.

Presenting works ranging from Haydn tothe avant-garde, the Nash Ensemble isacclaimed for its bold programming andvirtuosic performances. It is a major con-tributor towards the recognition and promo-tion of contemporary composers: by theend of this season the group will haveperformed over 260 premieres, of which145 have been specially commissioned.The Nash has received many accolades,including two Royal Philharmonic SocietyAwards in the chamber music category. Animpressive collection of recordings illus-trates the same varied and colorful com-bination of classical masterpieces, little-known and neglected gems, and impor-tant contemporary works. TheEnsemble's British Composers series forHyperion Records has received muchacclaim: the recent CD of chamber worksby Coleridge-Taylor was nominated for aBBC Music Magazine Award and wasEditor's Choice in the November '07 editionof Gramophone. The Ensemble's mostrecent CD releases include Beethoven'sstring quintets, Mozart's piano quartets,Brahms's string sextets and Piano QuartetsNos. 1 and 3, and chamber works by Saint-Saëns. Future recordings will includeMozart's string quintets, Brahms's PianoQuartet No. 2 and Clarinet Trio, and cham-ber works by David Matthews.

Tickets are $48/$38 (Ages 35 andyounger, $25) and may be purchased bycalling 212.415.5500, visitingwww.92Y.org/concerts, or at the box office.The 92nd Street Y is located at 1395Lexington Avenue at 92nd Street.

On April 4, 2009, pianist TaniaStavreva will make her New York Recital

Debut in Carnegie’s Weill Recital Hall, aperformance highlighted by the UnitedStates Premiere of Israeli composer GilShohat’s Sparks from the Beyond. Theafternoon’s program will showcase Ms.Stavreva’s specialization in 20th- and 21st-century music through a diverse selectionof composers, including AlbertoGinastera, Alexander Scriabin, CarlVine, Claude Debussy, and AlexanderVladigerov. Ms. Stavreva is the recent win-ner of Artists International Presentationsannual performance competition, whichawards its recipients with a New York Cityrecital debut.

Bulgarian-born pianist Tania Stavrevahas established herself as a gifted youngartist in the standard repertoire, as well as adevoted student of 20th- and 21st-centuryworks. Ms. Stavreva is a graduate ofBulgaria's "Dobrin Petkov" School for gift-ed young musicians, where she studied withrenowned pedagogue Rositsa Ivancheva forthirteen years. She went on to earn herBachelor's Degree from BostonConservatory, where she was a student ofMichael Lewin and the winner of the 2005Chamber Music Honors Competition, the2006 Lee Piano Scholarship and the 2007Piano Honors Competition. She is one ofthe first pianists of her generation to per-form contemporary classical music at suchrock venues as Webster Hall in New Yorkand Paradise Rock Club in Boston. Ms.Stavreva has appeared with the BostonConservatory Symphony Orchestra andSinfonia Perugina under conductors BruceHangen and Enrico Marconi. She is a regu-lar participant at numerous summer festi-vals, including Boston’s New MusicFestival, Pianofest in the Hamptons, MusicFest Perugia and Varna SummerInternational Music Festival in Bulgaria.

Central to Tania Stavreva’s recital is theUnited States Premiere of Israeli composerGil Shohat’s Sparks from the Beyond,which won Mr. Shohat the 1997 ArthurRubinstein Composition Competition.Both at home and abroad, Gil Shohat is oneof the most important and influential per-sonalities of Israeli classical music. He isthe composer of nine large-scale sym-phonies, ten concertos for various instru-ments, three operas, various oratorios, can-tatas, solo vocal pieces, and dozens ofchamber and piano pieces, as well as theperformer of more than 80 concerts a yearworldwide, both as a conductor and pianist.Divided into seven short movements,Sparks from the Beyond is inspired by thephilosophies and symbolism ofKabbalah, the mystical teachings ofJudaism. In the same way that Kabbalahseeks to explain the relationship between an

infinite and eternal Creator with the mortaluniverse, each ‘spark’ aims to illustrate thenature of some of life’s most universal andesoteric concepts in an attempt to achievespiritual realization: Infinity, Existence,Motion, Material, Faith, Beauty, and Love.

In addition to presenting the US Premiereof Sparks from the Beyond, Ms. Stavrevawill perform a variety of fundamental 20th-and 21st-century repertoire: AlbertoGinastera's Piano Sonata No. 1, Op. 22,Alexander Scriabin’s Vers la Flamme,Australian composer Carl Vine’s SonataNo. 1, a selection from both the first andsecond books of Claude Debussy’sPréludes, individual masterpieces that rep-resent the pinnacle of Debussy's keyboardart; and Alexander Vladigerov’sVariations on a Bulgarian Folk Song“Dilmano Dilbero.”

Tickets are $25 General Admission, and$20 for students and senior citizens withvalid identification. Tickets are on sale atWeill Recital Hall (57th Street & 7thAvenue)

MET OPERA’S RING CYCLEDon’t miss your final opportunity to see

Otto Schenk’s landmark production of theworld’s greatest theatrical journey,Wagner’s Ring cycle, Cycles 2 and 3 aresold out, but tickets are still available forCycle 1; this Saturday matinee series, fea-turing James Morris, Johan Botha,Waltraud Meier, and Christine Brewer, isconducted by James Levine. Seewww.metopera.com.Performance datesfor Cycle 1:

March 28 - - DAS RHEINGOLD(Saturday, 1:00 P.M.)April 11 - - DIEWALKÜRE (Saturday, 12:00 P.M.)April 18- - SIEGFRIED (Saturday, 12:00P.M.)April 25 - - GÖTTERDÄMMERUNG(Saturday, 12:00 P.M.)

THE MET OPERA’S New Productionof Verdi’s Il Trovatore,with two all-starcasts, runs through May 8

A cast of internationally most acclaimedVerdi singers is showcased in the Met’snew production of the Italian master’smelodic tour de force, IL TROVATORE,opened February 16. Renowned directorDavid McVicar makes his Met debut, andGianandrea Noseda conducts a cast thatincludes Marcelo Álvarez in his first Metperformances of the heroic title role, andthree singers who are celebrated inter-preters of their parts: SondraRadvanovsky as Leonora, Dolora Zajickas Azucena, and Dmitri Hvorostovsky asCount di Luna. Kwangchul Youn makeshis Met role debut as Ferrando. In later per-

Continued From Page 6 _________________

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formances, Marco Berti is Manrico;Hasmik Papian is Leonora; LucianaD’Intino is Azucena, Zeljko Lucic is diLuna, and Burak Bilgili is Ferrando, con-ducted by Riccardo Frizza. Performancesrun through May 8.

When this staging premiered in Chicago,The Globe and Mail said it was “packedwith drama-ripping good theater.”McVicar’s new production, featuring setsby Charles Edwards and costumes byBrigitte Reiffenstuel in their Met debuts, isinspired by the work of Francisco Goya –particularly his famous prints “TheDisasters of War,” with their hauntingdepictions of that time, and his nightmarish“Black Paintings.” The sets are designed ona turntable to minimize scene changebreaks. Jennifer Tipton returns to the Met tocreate the lighting design. This Il Trovatoreis a co-production with the San FranciscoOpera, where it will open in September, andthe Lyric Opera of Chicago.

In addition to repertory from his nativeRussia, the exceptionally gifted, charismat-ic, and handsome DMITRI HVOROS-TOVSKY, playing the evil and vindictiveCount di Luna, has made a specialty ofVerdi’s lyric baritone roles, with his Metrepertoire including Renato in Un Ballo inMaschera, which he sang last season,Germont in La Traviata, and Rodrigo inDon Carlo. He made his Met debut in TheQueen of Spades, in 1995, and has also per-formed the Russian parts of AndreiBolkonsky in the Met premiere of War andPeace, and the title role of Eugene Onegin,which was transmitted as part of The Met:Live in HD in 2007. He has also sung thetitle role of Mozart’s Don Giovanni,Belcore in L’Elisir d’Amore, and Valentinin Faust at the Met, as well as the songcycles, Mahler’s Lieder eines fahrendenGesellen and Ravel’s Don Quichotte àDulcinée with the MET Orchestra, conduct-ed by James Levine. This season he appearsin Simon Boccanegra at the San FranciscoOpera and in Il Trovatore at the RoyalOpera House, Covent Garden, and in con-certs worldwide, including a tour withpianist Evgeny Kissin.

Tenor MARCELO ÁLVAREZ makeshis Met role debut as Manrico in the new IlTrovatore. Next season, he adds the role ofCavaradossi to his company repertoire,when he sings in the new production pre-miere of Tosca on Opening Night, oppositeKarita Mattila in the title role. Manrico isthe Argentinean tenor’s third major Verdirole at the Met; he made his debut asAlfredo in Franco Zeffirelli’s new produc-tion of La Traviata in 1998 and has alsosung the Duke in Rigoletto. His diverse Metrepertoire also includes Don José inCarmen, which he performed last season,Edgardo in Lucia di Lammermoor, DesGrieux in Manon, Rodolfo in La Bohème,and the Italian Singer in Der Rosenkavalier.He has sung Don José with many compa-nies, including the Royal Opera, CoventGarden, and the Théâtre du Capitole inToulouse; Alfredo at the Zurich Opera, andCavaradossi in Tosca at the Royal OperaHouse, Covent Garden. Later this season hesings Maurizio in Adriana Lecouvreur atTurin’s Teatro Regio.

SONDRA RADVANOVSKY has sungsome of Verdi’s most demanding sopranoroles at the Met, including Elvira in Ernani,Elena in I Vespri Siciliani, Elisabeth inDon Carlo, the title role in Luisa Miller,and Leonora in Il Trovatore, which shefirst sang here in 1999. Radvanovksy is agraduate of the Met’s Lindemann YoungArtist Development Program, and her

repertoire with the company also includesMusetta in La Bohème, Donna Anna inDon Giovanni, and Roxane in Alfano’sCyrano de Bergerac, a role she sang in thework’s United States premiere in 2005.Though she focuses on Verdi, this seasonthe American soprano earned raves for herperformance in the title role of Puccini’sSuor Angelica at the Los Angeles Operaand for her Washington National Operadebut in the title role of Donizetti’sLucrezia Borgia.

As Azucena, DOLORA ZAJICK “ruledthe stage more like a force of nature than amezzo-soprano playing a part,” theChicago Tribune critic wrote in 2006. TheAmerican singer has a large repertoire, andis especially renowned for the dramaticVerdi parts. Azucena was the role of herMet debut in 1988; she last sang it here in2001. She is equally well-known asAmneris in Aida (a role she has sung anastonishing 62 times at the Met and whichshe returns to sing next season), Eboli inDon Carlo, and Ulrica in Un Ballo inMaschera. Last season, she returned to therole of Adalgisa in Norma, which she hadsung at the production’s premiere in 2001.Zajick appeared in the Met premiere ofRusalka (1993) and the world premiere ofAn American Tragedy (2005). Among herperformances elsewhere this season wereDon Carlo at La Scala’s opening night andCavalleria Rusticana at the Houston GrandOpera and Chicago’s Lyric Opera.

KWANGCHUL YOUN makes his roledebut as Ferrando, capping a busy season atthe Met, where he has already appeared asthe Commendatore in Don Giovanni andKing Marke in Tristan und Isolde. TheKorean bass made his Met debut in 2004 asSarastro in Die Zauberflöte and has alsosung Ramfis in Aida, Hermann inTannhäuser, and the Old Hebrew in Samsonet Dalila with the company. Earlier this sea-son he sang Méphistophélès in a new pro-duction of Faust at the Vienna State Opera.

Conductor GIANANDREA NOSEDAmade his Met debut in 2002 conductingProkofiev’s War and Peace and returned tolead Verdi’s La Forza del Destino in 2006and Un Ballo in Maschera last season. TheItalian conductor holds the titles of musicdirector of Turin’s Teatro Regio, chief con-ductor of the BBC Philharmonic, and artis-tic director of the Stresa Festival on LakeMaggiore . After winning Spain’sCadaqués Orchestra InternationalConducting Competition in 1994, hebecame the orchestra’s principal conduc-tor. Three years later, he became the firstforeigner to be named principal guest con-ductor of the Mariinsky Theatre (KirovOpera) in St. Petersburg, where he has led,among many other operas, the company’sfirst-ever performance of La Sonnambula.This season the maestro conducts Thaïsand The Queen of Spades at the TeatroRegio and later this year will lead perform-ances with the Israel Philharmonic, theSwedish Radio Orchestra, and the FinnishRadio Symphony Orchestra.

Italian tenor MARCO BERTI makeshis Met role debut as Manrico, followinghis appearances last season in anotherVerdi role, Radamès in Aida. He made hiscompany debut in 2004 as Pinkerton andlater sang Don José in Carmen. Elsewherethis season, his schedule includesCavaradossi in Tosca and Riccardo in UnBallo in Maschera at the Vienna StateOpera, Don José at the Bavarian StateOpera and Bilbao Opera, and DickJohnson in La Fanciulla del West inSeville . In September, Berti opens the SanFrancisco Opera season in this productionof Il Trovatore.

HASMIK PAPIAN adds the role ofLeonora in Il Trovatore to her Met reper-toire this season. She made her companydebut in 1999 in the title role of Aida, a roleshe repeats in the 2009-10 season, and lastseason sang two of the most challengingroles in the soprano repertory: the title roleof Bellini’s Norma and Lady Macbeth inVerdi’s Macbeth. This season she stars inLa Forza del Destino at the Vienna StateOpera, sings Norma with the Monte CarloOpera, and in her debut at the Dallas Operatakes on the bel canto role of Elizabeth inRoberto Devereux.

“It was hard to resist such robust and dra-matic singing,” The New York Times criticwrote in 2005, when Italian mezzo-sopranoLUCIANA D’INTINO made her Metdebut as Eboli in Don Carlo. WithAzucena, she adds a third Verdi role to herMet repertoire, which also includesAmneris in Aida. D’Intino has appearedwith such major companies as the RoyalOpera, Covent Garden, and Parma ’s TeatroRegio. This season both La Scala and theVienna State Opera hear her Amneris, andshe also brings her Azucena to the ZurichOpera.

When _ELJKO LU_I_ played the titlerole in last season’s new production ofMacbeth, which was transmitted worldwideas part of The Met: Live in HD, the NewYork Times praised his “affecting perform-ance of an intimidating role,” as well as his“elegant legato and burnished sound.” TheSerbian-born baritone adds the role ofCount di Luna to his Met repertory this sea-son, and next season returns for his first per-formances with the company of Michele inPuccini’s Il Tabarro. He made his Metdebut in 2006 as Barnaba in La Gioconda.Elsewhere this season, he appears inMacbeth, La Traviata, and Luisa Millerwith the Bavarian State Opera; Don Carloat the Frankfurt Opera, and Rigoletto atMadrid’s Teatro Real.

BURAK BILGILI made his Met debutin 2004 as Leporello in Don Giovanni. Theyoung Turkish bass made his professionaloperatic debut at La Scala as Alfonso inDonizetti’s Lucrezia Borgia in the 2002-03season. He has since sung with leadingopera companies in Europe and America.

Conductor RICCARDO FRIZZA madehis Met debut last month with Rigoletto,winning praise from The New York Timesfor the “lively and full-bodied” perform-ance he drew from the orchestra. Afteradding Il Trovatore to his Met repertorywith this production, he returns next seasonto conduct the new production of Rossini’srarely performed Armida, starring RenéeFleming in the title role.

DAVID MCVICAR makes hisMetropolitan Opera debut directing IlTrovatore. Last month, he staged Siegfriedat the Opéra du Rhin in Strasbourg, thethird production in a projected full cycle ofDer Ring des Nibelungen there. Among hisnumerous acclaimed opera productions areRigoletto (Olivier Award nomination), LeNozze di Figaro, Faust, and DieZauberflöte at Covent Garden (all tele-vised); The Rape of Lucretia (OlivierAward nomination) with the AldeburghFestival; La Clemenza di Tito (OlivierAward Nominations), and Tosca withEnglish National Opera. McVicar won theSouth Bank Show Award for his productionof Giulio Cesare at the GlyndebourneFestival in 2005. Known for his innovativeand sometimes controversial style, he hasstaged opera throughout the world.

IL TROVATORE is being heard by mil-lions of people around the world this seasonon the radio and via the internet, throughdistribution platforms the Met has estab-

lished with various media partners. TheMetropolitan Opera Radio on SIRIUSchannel 78 and XM Radio channel 79 isbroadcasting performances on March 16and the final live broadcast of the season,May 8. The February 16 premiere will alsobe available via RealNetworks internetstreaming at the Met’s web site, www.met-opera.org.

Under the leadership of GeneralManager Peter Gelb and MUSICDIRECTOR JAMES LEVINE, the Methas a series of bold initiatives underwaythat are designed to broaden its audienceand revitalize the company’s repertory. TheMet has made a commitment to presentingmodern masterpieces alongside the classicrepertory, with highly theatrical produc-tions featuring the greatest opera stars in theworld.

Building on its 77-year-old radio broad-cast history – currently heard over the TollBrothers-Metropolitan Opera InternationalRadio Network – the Met now usesadvanced media distribution platforms andstate-of-the-art technology to attract newaudiences and reach millions of opera fansaround the world.

The Emmy Award-winning The Met:Live in HD series reached more than935,000 people in the 2007-08 season,more than the number of people who sawperformances in the opera house. Theseperformances began airing on PBS inMarch 2008, and nine of these HD per-formances are now available on DVD.

Live in HD in Schools, the Met’s newprogram offering free opera transmissionsto New York City schools in partnershipwith the New York City Department ofEducation and the Metropolitan OperaGuild, reached more than 7,000 publicschool students and teachers during the2007-08 season. This season, Live in HD inSchools expands to reach schools in 18cities and communities nationwide.

Continuing its innovative use of elec-tronic media to reach a global audience,the Metropolitan Opera introduces MetPlayer, a new subscription service thatwill make its extensive video and audiocatalog of full-length performances avail-able to the public for the first time online,and in exceptional, state-of-the-art quality.The new service currently offers almost200 historic audio recordings and 50 full-length opera videos will be available,including over a dozen of the company’sacclaimed The Met: Live in HD transmis-sions, known for their extraordinary soundand picture quality. New content, includ-ing HD productions and archival broad-casts, will be added monthly.

Metropolitan Opera Radio on SIR-IUS XM Radio is a subscription-basedaudio entertainment service broadcastingboth an unprecedented number of live per-formances each week throughout theMet’s entire season, as well as rare histor-ical performances, newly restored andremastered, spanning the Met’s 77-yearbroadcast history.

In addition to providing audio recordingsthrough the new Met on Rhapsody on-demand service, the Met also presents freelive audio streaming of performances on itswebsite once every week during the operaseason with support from RealNetworks®.

HOWARD L. WIEDER is the writer ofboth "THE CULTURE CORNER" and the"BOOKS AT THE BAR" columns, appearingregularly in THE QUEENS BAR BUL-LETIN, and is JUSTICE CHARLES J.MARKEY’s Principal Law Clerk in IAS Part32 of Supreme Court, Civil Term, in LongIsland City, Queens County, New York.


The Culture Corner


Pretrial Advocacy: An Ethical ChecklistBY GERALD LEBOVITSAND JOSEPH CAPASSO*

This article continues from Part I, whichwas published in the February 2009 issueof the Queens Bar Bulletin.

C. Ethical Considerations During theDiscovery Stage of Litigation.

Ethical situations arise during discov-ery. Although attorneys have numerousprocedural tools to aid in gathering infor-mation, attorneys must be vigilant not toabuse these tools. An ethical checklistreminds attorneys of their duty to supple-ment or correct information provided dur-ing discovery and to refrain from tacticsdesigned to delay litigation or harassopposing litigants or third parties.

Attorneys must not abuse procedural tools.The use of interrogatories during discov-

ery presents attorneys with ethical ques-tions. C.P.L.R. 3132 and F.R.C.P. Rule33(a) dictate that only a party to a civilaction may promulgate an interrogatory toanother party to that same action. To getinformation from a non-party, the attorneymust use other discovery tools. These rulesinfluence plaintiff’s counsel to determinewho should be named as defendants.

ABA Model Rule 3.1 dictates that attor-neys must refrain from naming a person asa defendant merely to benefit from discov-ery procedural tools. Comment 1 to ABAModel Rule 3.1 provides that “[t]he advo-cate has a duty to use legal procedure forthe fullest benefit of the client’s cause, butalso a duty not to abuse legal procedure.”Naming a person as a defendant to gaininformation about the case through inter-rogatories is one example of an abusiveuse of legal procedure. Although theModel Rules note that the law establishesthe limits within which an advocate mayproceed, the law is often unclear. To deter-mine the proper scope of advocacy, attor-neys must be wary of the potential forabuse. A related idea is the use of a lawsuitto obtain information for non-litigationpurposes. The attorney has an ethical dutyto refrain from such conduct, as directedby ABA Model Rule 3.1.

Attorneys must supplement or correctinformation provided during discovery.

Attorneys engaged in civil discoverymust be familiar with F.R.C.P. Rule 26(e)and C.P.L.R. 3101(h), which require attor-neys to supplement discovery documentsand disclosure when they learn new infor-mation. A party is required to supplementor correct a Rule 26(a) disclosure toinclude information acquired after the dis-closure was made if the court so orders itor “if the party learns that in some materi-al respect the information disclosed isincomplete or incorrect and if the addition-al or corrective information has not other-wise been made known to the other partiesduring the discovery process or in writ-ing.”32 In New York, C.P.L.R. 3101(h)requires a party to “amend or supplement”information provided through disclosureafter “obtaining information that theresponse was incorrect or incompletewhen made, or that the response, thoughcorrect and complete when made, nolonger is correct and complete, and the cir-cumstances are such that a failure toamend or supplement the response wouldbe materially misleading.”

Attorneys must also be familiar withF.R.C.P. Rule 26(g)(1). This Rule pro-vides that an attorney’s signature on a Rule

26(a) disclosure certifies that the disclo-sure is “complete and correct as of the timeit is made.”33 Rule 26(g)(2)(A) providesthat an attorney’s signature on a discoveryrequest, response, or objection certifiesthat the discovery document is “consistentwith these rules and warranted by existinglaw or a good faith argument for the exten-sion, modification, or reversal of existinglaw.”34 The requirements Rule 26(g)imposes on discovery papers parallel theRule 11 requirements imposed on plead-ings, motions, and other papers.

N.Y. Rule of Professional Conduct3.3(a)(3) addresses the situation in which

an attorney learns that a client has materi-ally misled a party or the court by offeringfalse evidence. The Rule provides that alawyer shall not knowingly “offer or useevidence that the lawyer knows to be false.If a lawyer, the lawyer’s client, or a wit-ness called by the lawyer has offered mate-rial evidence and the lawyer comes toknow of its falsity, the lawyer shall takereasonable remedial measures, including,if necessary, disclosure to the tribunal.”35

ABA Model Rule 3.3(a)(3) adds that a“lawyer may refuse to offer evidence . . .that the lawyer reasonably believes isfalse.”

If an attorney has offered material evi-dence believing it was true but later learns

Gerald Lebovits Joseph Capasso

____________________Continued On Page 17

9


PH O T O CO R N E R

Solo and Small Firm Practitioners MeetingMonday, February 23, 2009

Hon. Rudolph Greco, Moderator for the program. Program Committee Chair, Joseph Carola QCBA President, Steven Orlow

Barbara Zahler-Gringer, Assistant Counsel to Hon.

Ann Pfau.

David Cohen giving his view on an issue. Ed Rosenthal making a point regarding the discus-

sion.

Hon. Jeremy Weinstein, Administrative Judge,

Queens County.

Barbara Zahler-Gringer giving feedback to an

attendee.

Richard Lazarus giving his thoughts on the topic at

hand.

Jeff Boyar stating a point. Jim Pieret at open forum presenting suggestions

from the audience.

Kenneth Kanfer responding to a question from the

audience.

Photos by Walter Karling


PH O T O CO R N E R

Solo and Small Firm Practitioners MeetingMonday, February 23, 2009

Hon. Jeremy Weinstein, Kenneth Kanfer and Arthur Terranova. Howard Angione, Karina Alomar, Angelo Picerno, Hon. Carmen

Velasquez and Gary Miret

Kenneth Kanfer, partner in the law firm of Snitow,

Kanfer, Holtzer & Millus, LLP.

Steven Orlow, Hon. Jeremy Weinstein and Hon.

Seymour Boyers

Wally Leinheardt, Tracy Catapano-Fox and Hon.

Allen Beldock

Zenith Taylor, Joseph Ledwidge and Michael

Davidov

Robert Ostertag, partner in the firm Ostertag,

O'Leary & Barrett and Past President of the NYSBA.

Robert Ostertag giving his opinion of an inquiry.

Jeff Boyar, Barry Seidel, George Nicholas and

Richard Lazarus

Hon. Bernice Siegal, Hamid Siddiqui and Joe

Carola

Photos by Walter Karling

Annamare Policriti, Cathy Lomuscio and Agnes

Kirschner


The Following Attorneys WereDisbarred By Order Of TheAppellate Division, SecondJudicial Department:

Donahue G. George (December 16, 2008)

The respondent was found guilty, ondefault, of failing to cooperate with threeinvestigations into allegations of profes-sional misconduct.

David A. Gross (December 16, 2008)

On July 13, 2007, the respondent plead-ed guilty in the United States DistrictCourt for the Eastern District of New Yorkto conspiracy to commit money launder-ing, a Federal felony.

Inasmuch as the Federal felony of con-spiracy to commit money laundering is“essentially similar” to the New Yorkfelony of conspiracy to commit moneylaundering in the second degree, therespondent ceased to be an attorney andcounselor-at law upon his conviction, pur-suant to Judiciary §90.

Laurence S. Jurman (December 16, 2008)

On February 5, 2008, the respondententered a plea of guilty in Supreme Court,Suffolk County (Doyle, J.) to possessionof a forged instrument in the seconddegree, a class D felony. Pursuant toJudiciary Law §90, the respondent ceasedto be an attorney upon his felony convic-tion.

Michael S. Feit, admitted as MichaelScott Feit (December 23, 2008)

On February 27, 2006, the respondentpleaded guilty in Supreme Court, KingsCounty (Walsh, J.) to grand larceny in thesecond degree, a class C felony; falsifyingbusiness records in the first degree, a classE felony; and attempted grand larceny inthe second degree, a class D felony. Byvirtue of his felony convictions, therespondent ceased to be an attorney pur-suant to Judiciary Law §90.

Dorothy Baratta (December 30, 2008)The respondent tendered a resignation

wherein she acknowledged that she couldnot successfully defend herself on the mer-its against allegations that, in the course ofa real estate transaction, she used moniesentrusted to her as escrow agent withoutpermission or authority.

Mayank V. Munsiff (December 30, 2008)

After a disciplinary hearing, the respon-dent was found guilty of converting to his

own use and benefit fundsbelonging to the Estate ofAnibal Tellez and commin-gling funds belonging to theEstate with his own funds. TheAppellate Division noted,“Throughout the proceedingthe respondent…evinced aninability to grasp the conceptthat his actions, albeit not venalin nature, [were] in direct con-travention of the DisciplinaryRules…”

Devon F. Clarke, admitted as DevonFitzgerald Clarke (January 13, 2009)

The respondent tendered a resignationwherein he acknowledged that he couldnot successfully defend himself on themerits against allegations of irregularitiesinvolving his attorney escrow accountarising from a dishonored check report.

Edwin E. Drakes, admitted as EdwinEustace Drakes, a suspended attorney (January 13, 2009)

After a disciplinary hearing, the respon-dent was found guilty of improperly con-verting funds entrusted to him as a fiduci-ary; engaging in the unauthorized practiceof law following his suspension as anattorney; improperly using his attorneyescrow account following his suspensionas an attorney; making materially falsestatements on an application to renew hisreal estate broker license; and failing tocomply with lawful orders of the UnitedStates Bankruptcy Court for the EasternDistrict of New York.

Stephen Lawrence Brotmann (January 20, 2009)

The respondent tendered a resignationwherein he acknowledged that he couldnot successfully defend himself on themerits against allegations that he violatedDisciplinary 9-102 of the Lawyers Code ofProfessional Responsibility [22 NYCRR1200.46].

Joseph R. Maddalone, Jr. (January 20, 2009)

On April 15, 2008, the respondententered a plea of guilty to one count ofgrand larceny in the second degree, afelony, in the County Court, SuffolkCounty (Doyle, J.) Pursuant to JudiciaryLaw §90, the respondent ceased to be anattorney upon his felony conviction.

The Following Attorneys WereSuspended From The PracticeOf Law By Order Of TheAppellate Division, Second

Judicial Department:

Barry L. Goldstein(December 30, 2008)

After a disciplinary hearing,the respondent was foundguilty of engaging in conductadversely reflecting on his fit-ness to practice law by con-verting funds and/or failing tomaintain a duly constitutedescrow account in breach of hisfiduciary duty; failing to obtainescrow checks bearing the title

“Attorney Escrow Account”, “AttorneySpecial Account” or “Attorney TrustAccount;” engaging in conduct adverselyreflecting on his fitness to practice law byfailing to comply with a lawful request ofthe Grievance Committee; failing to main-tain required records for his attorneyescrow account; engaging in conductadversely reflecting on his fitness to prac-tice law by failing to account to theGrievance Committee as to the source offunds deposited in, the purpose of fundsdisbursed from, and the names of all per-sons for whom funds were held in, escrow;engaging in conduct involving dishonesty,fraud, deceit or misrepresentation by mak-ing dishonest, false or misleading state-ments in an article regarding a child cus-tody matter in which the he represented themother; engaging in conduct that adverse-ly reflects on his fitness to practice law byreason of the foregoing; engaging in con-duct involving dishonesty, fraud, deceit ormisrepresentation by preparing and filinga petition for a writ of habeas corpus and apetition in a proceeding pursuant to CPLRarticle 78, which contained sworn state-ments which were dishonest, false or mis-leading; engaging in conduct involvingdishonesty, fraud, deceit or misrepresenta-tion by preparing and filing an affirmationin which he wrongfully accused a judge of“initially refusing to provide” a contemptorder and having “delayed presenting anorder;” engaging in conduct adverselyreflecting on his fitness to practice law byreason of the foregoing; engaging in con-duct involving dishonesty, fraud, deceit ormisrepresentation based upon false asser-tions against a court-appointed visitationsupervisor; engaging in conduct reflectingadversely on his fitness to practice to lawby reason of the foregoing; engaging inconduct prejudicial to the administrationof justice by failing to abide by one ormore court directives; engaging in conductprejudicial to the administration of justiceby entering into a retainer agreement thatfailed to comply with the requirements setforth in 22 NYCRR §1400; and engagingin conduct prejudicial to the administra-tion of justice and/or conduct reflectingadversely on his fitness to practice law, bysubmitting a motion to a court containingunsupported statements made without rea-sonable inquiry into the accuracy of thosestatements. He was suspended from thepractice of law for a period of five years,commencing January 30, 2009, and con-tinuing until further order of the Court.

Edward A. Christensen (January 15, 2009)

The respondent was immediately sus-pended from the practice of law, pendingfurther proceedings, based upon his failureto comply with lawful demands of theGrievance Committee for the TenthJudicial District and other uncontrovertedevidence of professional misconduct. In

addition, Robert Guido, Esq., was appoint-ed as inventory attorney, to take custody ofand inventory the respondent’s files andreturn them to his former clients; take cus-tody of and safeguard the records of anybusiness, escrow, trust or specialaccount(s) of the respondent; receive,open, and read mail addressed to therespondent at the respondent’s formerplace of business; and take “such furtheraction as is deemed proper and advisableto protect the interests of the respondent’sformer clients in discharging the aforesaidduties, and secondarily, the interests of therespondent attorney..”

Ihab Hussam Tartir (January 15, 2009)On October 14, 2008, the respondent

was convicted, after a jury trial in theUnited States District Court for theSouthern District of New York, of onecount of aiding and abetting marriagefraud and two counts of conspiracy tocommit that crime, all Federal felonies. Onthe Appellate Division’s own motion, therespondent was immediately suspendedfrom the practice of law, pending furtherproceedings, as a result of his convictionof a “serious crime” pursuant to JudiciaryLaw §90.

Lisa L. Cox (January 16, 2009)The respondent was immediately sus-

pended from the practice of law, pendingfurther proceedings, based upon her failureto cooperate with the GrievanceCommittee, substantial admissions underoath and other uncontroverted evidence ofprofessional misconduct.

The Following Attorney WasPublicly Censured By Order OfThe Appellate Division, SecondJudicial Department:

Donald J. Neidhardt (December 23, 2008)

The respondent was publicly censuredby order of the Supreme Court of Montanadated July 19, 2006. Upon the GrievanceCommittee’s motion for reciprocal disci-pline pursuant to 22 NYCRR §691.3, hewas publicly censured in New York.

The Following Suspended OrDisbarred Attorneys WereReinstated To The Practice OfLaw By Order Of The AppellateDivision, Second JudicialDepartment:

John C. Lopes, a disbarred attorney(December 16, 2008)

Daivery Taylor, admitted as DaiveryGerard Taylor, a disbarred attorney(December 16, 2008)

David C. Kobrin, admitted as DavidCulman Kobrin, a disbarred attorney(January 13, 2009)Scott F. Saidel, a suspended attorney (January 13, 2009)

Diana J. Szochet, Assistant Counsel tothe State of New York GrievanceCommittee for the Second, Eleventh andThirteenth Judicial Districts and Presidentof the Brooklyn Bar Association, compiledthis edition of Court Notes. This materialis reprinted with permission of theBrooklyn Bar Association.

CO U RT NO T E S

Diana J. Szochet

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the court determines that there has been abreach of fiduciary duty by the previouslyappointed agent. “The court shall not,however, invalidate or revoke a will or acodicil of an incapacitated person duringthe lifetime of such person.”

MHL §81.44: Speaking of the death ofan Incapacitated Person there is a newsection of the Mental Hygiene Law. MHL81.44, effective January 3, 2009, makescertain requirements of the MHL 81Guardian on the death of the IncapacitatedPerson.

Within 20 days of the date of death ofthe Incapacitated Person the Guardianmust serve a copy of the “statement ofdeath” upon the court examiner, the per-sonal representative of the decedent'sestate, or, if no person representative hasbeen appointed, then upon the personalrepresentative named in the decedent'swill or any trust instrument, if known, andupon the public administrator of the chieffiscal officer of the county in which theguardian was appointed, and file the orig-inal statement of death together with proofof service upon the personal representa-tive and or public administrator or chieffiscal officer, as the case may be, with thecourt which issued letters of guardianship.

The statement of death is defined in thelaw as a statement, in writing andacknowledged, containing the caption andindex number of the guardianship pro-ceeding, and the name and address of thelast residence of the deceased incapacitat-ed person, the date and place of death, andthe names and last known addresses of allpersons entitled to notice of furtherguardianship proceedings pursuant toparagraph three of subdivision (c) ofMHL §81.16, including the nominatedand/or appointed personal representative,if any, of the deceased incapacitated per-son's estate.

Within 150 days of the death of theIncapacitated person, the guardian shallserve upon the personal representative ofthe decedent's estate or where there is nopersonal representative, upon the publicadministrator or chief fiscal officer, astatement of assets and notice of claim,and, except for property retained to secureany known claim, lien or administrativecosts of the guardianship pursuant to sub-division (e) of this section, shall deliverall guardianship property to:

1. the duly appointed personal represen-tative of the deceased incapacitatedperson's estate, or

2. the public administrator or chief fis-cal officer given notice of the filing ofthe statement of death, where there isno personal representative.

3. any dispute as to the size of the prop-erty retained shall be determined bythe surrogate court having jurisdic-tion of the estate.

Within one hundred fifty days of theincapacitated person's death, the guardianmust also file the Final Account ofGuardian with the clerk of the court of thecounty in which annual reports are filed,and seek judicial approval and settlementupon such notice as required by MHL§81.33, including notice to the person orentity to whom the guardianship propertywas delivered.

In connection with the Final Accountthe Guardian may continue to hold assetsof the Incapacitated Person in an amountequal in value to the claim for administra-tive costs, statutory commissions, attor-

neys’ fees, liens and other debts.MHL 81 Guardian & Gifts: In Matter

of Mildred A., NYLJ, Page 27, Column 3,two daughters

bought financial assistance from theirmother, an Incapacitated Person.Daughter A sought a loan in the amount of$150,000.00 from the guardianship estate.Daughter B sought permission to invadetwo custodial accounts set up by the inca-pacitated person for the benefit of hergrandchildren. And both daughters soughtgifts in the amount of the annual exclusionfrom the guardianship. Justice Asarch,Supreme Court, Nassau County, deniedthe loan. Since most of the incapacitatedperson’s assets were in IRA’s, the loanwould result in both a loss of principal andincome tax consequences to the incapaci-tated person. He also declined to invadethe custodial accounts. The Court wasdeeply concerned with the potential situa-tion of the infant children supporting theirmother.

The Court approved the annual exclu-sion gifts. Still, the Court expressed con-cerns about the effect of the gifts onprospective Medicaid eligibility under theDeficit Reduction Act of 2005, and thefinancial impact of gifts in general. Thedecision seems to stand as a reminder thatthere are limits, practical and legal, to theCourt’s application of the gifting power ofGuardian’s under the substitution of judg-ment doctrine.

Power of Attorney: The legislature hasonce again amended the Statutory ShortForm Power of Attorney. On January 27,2009, Governor Patterson signed into lawChapter 644 of the New York State Lawsof 2008. The law creates a new StatutoryShort Form Power of Attorney. On March1, 2009, the Governor signed legislationextending the effective date of the newlaw until September 1, 2009. The newlaw, including the new form, can bereviewed at www.nysba.org/POALeg.

The new law provides definitions andgeneral requirements for the validity ofpowers of attorney, describes the dutiesand responsibilities of the agent, liabilitiesof the agent and third parties, requires theagent to sign the power of attorney form,provides procedures for the revocation ofthe power of attorney, provides for civilproceedings with respect to the power ofattorney, and furnishes a new power ofattorney form. Below is a description ofthe new form.

The new form consists of 15 sections(§a-m) and a new optional “Power ofAttorney New York Statutory Major GiftsRider”.

The form starts with a new plain lan-guage warning (§a). The principal is cau-tioned that the power of attorney is animportant document; that the appointedagent has “authority to spend your moneyand sell or dispose of your property” and“without telling you”. The principal is toldthat the agent must act according to theprincipal’s instructions, or in the absenceof instructions in the “best interest” of theprincipal and in accord with the duties andresponsibilities enumerated later on in theform (§n). The principal is reminded thatthe power of attorney is revocable at anytime and for any reason. Principals whowant more information about the law aretold that the law is available at a lawlibrary or online at www.senate.state.ny.usor www.assembly.state.ny.us. The warn-ing makes it clear that making health caredecisions is the province of a health careproxy, not an agent.

The next four sections (§b-e) includedesignation of the Agent and SuccessorAgent(s), a statement that the power ofattorney shall not be affected by the sub-sequent disability of the principal (dura-bility), unless modified, and a statementthat the power of attorney revokes any andall power prior powers of attorney, unlessmodified. Modifications are be made insubsequent §g, Modifications: Optional.

The subjects of the authority of theagent are listed in §(f). The Principalselects the authority to be given to theagent by either placing his initial in thebracket next to each power, or writing ortyping the letters for each authority onthe blank line (P). This is the same pro-cedure utilized in the current power ofattorney form. The authority to be givento the agent includes some old standbys:real estate transactions, chattel and goodstransactions, banking, business, insur-ance and estate transactions, claims andlitigation, and some new subjects: per-sonal and family maintenance, and healthcare billing, payment, records, reportsand statements. There is no giftingauthority of any kind, including makinguse of the annual exclusion. Gifting isreserved to the new optional “Power ofAttorney New York Statutory MajorGifts Rider”.

In the next section (§h) the principalexpresses his desire to make “major gifts”and other “transfers of property”. Theprincipal must initial the statement in §hand at the same time execute the“Statutory Major Gifts Rider”. The formsuggests that the preparation of theStatutory Major Gifts Rider should besupervised by a lawyer.

The new form includes the designationof a Monitor (§I). The monitor is a newterm. The monitor is a third party. Themonitor is further protection for the prin-cipal and check on the agent. The Monitoris statutorily defined (GOL 5-1501(8) as aperson appointed in the power of attorneywho has the authority to request receive,and seek to compel the agent to provide arecord of all receipts, disbursements, andtransactions entered into by the agent ofbehalf of the principal.

The Principal may provide for compen-sation to the agent for services rendered.The new form §(j) specifically providesthat the agent is entitled to be reimbursedfrom the principal’s assets for reasonableexpenses, and may be entitled to reason-able compensation if the principal soelects. The principal can define reason-able compensation and include that in theModification section (§g).

Third parties acting and relying on thepower of attorney are afforded protectionin §k. The new form, mirroring the currentform, provides for indemnification ofthird parties by the principal for all claimsagainst the third party.

The Power of Attorney continues untilrevocation or death, §l.

The principal signs and acknowledgesthe document at §m. The new formrequires that the agent also sign andacknowledge the power of attorney. Beforesigning, however, the Agent is reminded ofhis duties, responsibilities, and liabilities in§n “Important Information For TheAgent.” This is a brand-new section. Theagent is reminded that he must act in accor-dance with the instructions of the principal.That he is a fiduciary and as such mustavoid conflicts of interest, keep the princi-pal’s property separate and apart fromone’s own assets, keep records, and not

personally benefit from the principal’sassets. The agent is warned that if it isfound that he has violated the law or actedoutside the authority granted, he may beliable under the law for such violation.

The Principal may authorize an agentto make gifts, but only by making use ofthe optional “New York State StatutoryGifts Rider”. The new law provides asample rider. The rider provides for lim-ited gifts to the principal’s spouse, chil-dren, and more remote descendants, andparents, not to exceed, for each, theannual federal gift tax exclusion amount.If the principal wants to make gifts inexcess of the annual exclusion there is amodification section. The principal mayalso authorize the agent to make selfgifts. The rider must be signed andacknowledged by the principal, andsigned by two witnesses.

Medicaid 2009 Regional Rates: TheNew York State Department of Health hasissued the new 2009 Medicaid regionalrates. The regional rates are used to deter-mine a transfer of assets penalty period.Based on the average cost of a nursinghome in different parts of the state, thenew rates are as follows:

Central $ 6.938.00Long Island $10,852.00New York City $ 9,838.00Northeastern $ 7,766.00Northern Metro $ 9,439.00Rochester $ 8,720.00Western $ 7,418.00

Medicaid 2009 Income & ResourceLevels: The New York State Departmentof Health has issued the new 2009Medicaid income and resource levels. Thenew income and resource will apply tobudgets with a “from date” effectiveJanuary 1, 2009.

Single Individual Exempt Resources $ 13,800.00Community Spouse Resource Allowance $109,560.00Minimum Monthly Need Allowanc $ 2,739.00Single Individual Monthly Income $ 767.00

Medicare 2009 Deductibles and Co-Insurance: The Centers for Medicare &Medicaid Services has issued the new2009 Medicare premiums anddeductibles.

The Medicare Part A premiums anddeductibles are as follows:

Hospital Deductible $1,068.00Hospital Co-Insurance $267.00 per

day for days 61-90, $534.00 per day forlifetime reserve days.

Skilled Nursing Facility$133.50 dayfor days 21-100

The Medicare Part B premiums are asfollows:

Annual Deductible $ 135.00Monthly Premium $ 96.40

Higher income beneficiaries pay higher

Summary: The above is only a selectivesurvey of some of which is new and note-worthy in Guardianship and Elder Law.The Elderly & Disabled Committee of theQueens County Bar Association will bemeeting each month, April through June,to discuss these and other issues affectingattorneys and their clients. Practitionersare invited to attend the monthly commit-tee meetings.

This article is written by John R. Dietz,Esq., Chair of the Elderly & DisabledCommittee and Past President of theQueens County Bar Association.

Guardian & Elder Law: New and NoteworthyContinued From Page 1 _________________


had not appeared, and will not be allowed topresent evidence as to liability, and will notbe heard to complain of fraud when evidenceturns up which might have exculpated it.Another issue related to the sufficiency ofproof on the motion for default judgment.

The case involved a 16-year-old plaintiff,who claimed to have been struck by a pieceof metal that supposedly fell into his eyewhile he walked under a scaffold assembledby the defendant Safway Steel Products. Thepiece of metal was surgically removed, andleft damage to his retina. Safway was one ofseveral defendants. After failure to complywith a preliminary conference order andplaintiff’s demands, the trial court issued aself-executing conditional order directing thatSafway’s answer would be stricken unless itcomplied by July 1, 2002. Since Safway stillfailed to comply, its answer was stricken as ofthat date. The effect of the answer beingstricken was that Safway was now unable tocontest plaintiff’s allegation that his injurywas due to a dangerous condition on its prem-ises. After its answer had been stricken, inAugust of 2002, and pursuant to the demandof another defendant, plaintiff produced thepiece of metal that had been removed fromhis eye for expert examination.

The co-defendant’s expert offered theopinion that the metal piece was in fact an air-gun pellet that had been fired into plaintiff’seye by an air-gun. Plaintiff thereupon discon-tinued the action against the remaining defen-dants.

In June of 2003 plaintiff’s motion for aninquest against Safway was granted, andSafway’s motion to dismiss was denied.Safway made three attempts to vacate thestriking of its answer and the order directingan inquest. A motion based upon a claim of“justifiable excuse” was denied, with theAppellate Division affirming on the groundsof the lack of an acceptable reason for anextended pattern of non-compliance withdemands, orders and the conditional order.The second attempt was based on the argu-ment that plaintiff’s claim had been shown tobe fraudulent. The trial court denied thismotion, since the striking of Safway’s answerand the order directing an inquest was unre-lated to the claim of fraud, but was entirelythe result of Safway’s own conduct in the lit-igation. The third motion was due to a claimof a stay relating to another action, which thetrial court denied as well on the grounds thatthe stay did not apply to this action. After theinquest and subsequent judgment, theAppellate Division affirmed the liability find-ing (although it reduced the amount of dam-ages).

The Court of Appeals stated that Safway’sdefault in complying with the conditionalorder resulted in its answer properly beingregarded as stricken, and it was thereforeproperly deemed to have admitted all the tra-versable allegations of the complaint, includ-ing the allegation of liability, and to havebeen precluded from introducing evidence todefeat plaintiff’s claim.

In the Court of Appeals, Safway attemptedto argue that the plaintiff’s proof on themotion for inquest was insufficient pursuantto CPLR 3215(f), and that the entire judg-ment was therefore a nullity. The Courtrejected the argument, on the grounds that ithad not been raised in any of the priormotions, and was therefore unpreserved. Asthe Court noted,” the requirement of preser-vation is not simply a meaningless technicalbarrier to review.” Had it been raised timely,the plaintiff might easily have cured any defi-ciency in his papers on the motion. 36 Thefailure to raise an objection until this late date,

long after the plaintiff has discontinued theaction as to the co-defendants, would make itprejudicial to reverse the judgment.

The fact that the Court was willing to viewthe argument as unpreserved bears on anunresolved question as to the validity ofdefault judgments. As has been noted in thisUpdate in previous years, the cases are inconflict as to whether the entry of a defaultjudgment on insufficient proof (typically byway of an attorney–verified complaint) is a“nullity,” 37or merely a procedural irregular-ity not affecting the validity of the judgment.In Woodson v Mendon Leasing, 100 N.Y.2d62; 760 N.Y.S.2d 727 [2003], 38 the Courtexpressly did not reach the issue of whethernon–compliance with that section would ren-der a default judgment a “nullity,” leaving thequestion unresolved. A necessary conse-quence of a judgment being a “nullity,” how-ever, is that it is void for all purposes and atall times, and an objection to it does not needto be preserved.

There was a dissent by Judge Pigott, whowas concerned that the judgment might havebeen procured by fraud. He recognized thatSafway had not even argued the fraud issue inthe Court of Appeals. He wanted to reach itanyway, on the grounds that “courts have afundamental duty to ensure that judgmentsare not procured by fraud.” The majoritydeclined this invitation to do the “lawyering”on behalf of the defendant. Its view was thatthe integrity of the judicial process and theobjective of prevention of fraud are bestserved by the parties’ compliance with courtorders during the entirety of the litigation,especially when both parties are representedby counsel whose purpose is to zealously rep-resent them.

In Boudreaux v State of La., Dept. ofTransp., 39 the Court of Appeals held that sis-ter-state judgments which are unenforceablein the state of origin are equally unenforce-able here, even under the Full Faith andCredit Clause of the US Constitution and thedoctrine of comity. Or, to put it more baldly,if the State of Louisiana can simply refuse topay a judgment entered against it by its owncourts, the plaintiff can not do an end runaround the refusal and enforce the judgmentagainst Louisiana’s assets in New York.

The class action in Louisiana found thestate liable for flood damage in 1983 due tonegligent construction of a bridge. After theLouisiana exhausted its appeals, the judg-ment was for over $91 million. Plaintiffsdocketed the judgment in 18 Louisianaparishes, but were unable to collect, sinceunder Louisiana law the judgment is notpayable against the state, until (and unless)the Louisiana legislature appropriates thefunds. The Louisiana Legislature has, so far,failed to do so.

Plaintiffs attempted to docket the judgmentwith the Supreme Court in New YorkCounty, but the clerk refused to accept it, dueto technical defect. A motion for leave to cor-rect the defects was denied, and the plaintiffsappealed. The Appellate Division affirmed,on the grounds that the judgment was asunenforceable here as it was in Louisiana, asa matter of comity.

The Court of Appeals upheld the AppellateDivision and refused to allow execution inNew York. Louisiana’s waiver of sovereignimmunity is limited by the provisions of itsConstitution and statutes which provide that ajudgment against it in its state courts are notto be “exigible, payable, or paid” until fundsfor the payment are appropriated by the legis-lature. The Supreme Court of Louisiana hasrecognized that the rule effectively providesthe plaintiff with a right but not a remedy, butviewed itself as constrained by the state

Constitution and statutes.The Full Faith and Credit Clause does not

make the sister state judgment a judgment ofthe State of New York. To create a New Yorkjudgment requires a New York action. In theabsence of a New York judgment, theLouisiana judgment has the same “credit,validity and effect” here as it has inLouisiana. Neither CPLR Article 54 nor theFull Faith and Credit Clause require that NewYork give the judgment greater effect than ithas in Louisiana.

Comity does not require enforcement here.To the contrary, comity is a voluntary deci-sion to defer to the policy of another state,and here requires deference to the laws of theoriginal forum. New York has no interest inproviding redress here. The flood, the dam-age and the resulting litigation all occurred inLouisiana. The wiser course is to defer toLouisiana’s limits on its own liability.

Byblos Bank Europe, S.A. v SekerbankTurk Anonym Syrketi, 40 involved conflictingjudgments of other states, and the Court ofAppeals declined to enforce the most recentjudgment. The underlying matter involved afraudulent loan obtained by an employee ofthe defendant Sekerbank, a Turkish bank,from the plaintiff Byblos, a Belgian bank.The Sekerbank employee apparently embez-zled the proceeds of the loan.

Byblos commenced proceedings againstSekerbank in Belgium, Turkey andGermany. The Turkish court dismissed theproceeding on the merits in 1992, a decisionwhich was upheld on appeal in Turkey in1994. Sekerbank then pursued recognition ofthe Turkish dismissal in the German andBelgian courts where the related proceedingswere pending. In 1996, the German courtgranted recognition of the Turkish judgment,which was upheld on appeal in Germany.

Later in 1996, the Belgian court of firstinstance dismissed on res judicata grounds.However, the Belgian intermediate appellatecourt reversed, refusing to grant the Turkishjudgment res judicata effect, relying on a pro-vision of Belgian law (since repealed) thatrequired an on-themerits review of a foreignjudgment. The intermediate Belgian court,conducting its own review

of the merits pursuant to that law, found theTurkish judgment a product of substantialerror, and entered judgment in favor ofByblos. This judgment was upheld by theBelgian High Court in September, 2005.

Byblos now sought to enforce this Belgianjudgment in New York, seeking an order ofattachment and summary judgment in lieu ofcomplaint. Sekerbank cross-moved to vacatethe attachment. Byblos relied on the last-in-time rule applicable to conflicting judgmentsof sister states: the last judgment will gener-ally be considered controlling. Sekerbankargued that this rule need not be applied incases of foreign country judgments, and thatthe Belgian judgment should not be givenrecognition as conflicting with the Turkishjudgment. Supreme Court denied the motionto confirm the attachment, declining to rec-ognize the attachment under CPLR5304(b)(5) due to the conflicting judgment.41

The Appellate Division went further, dis-missing the action on the motion for summa-ry judgment in lieu of complaint, and other-wise affirmed. It held that the last-in-time rulewas not required where the last foreign judg-ment was rendered with the adverse partybeing denied any opportunity to assert thatthe earlier judgment should be binding.Further, Sekerbank was entitled to non-enforcement of the Belgian judgment underCPLR 5304(b)(5), since it was itself issued inviolation of principles of comity, pursuant toa statute that has since been repealed and

replaced by a statute holding to the contrary.The Court of Appeals affirmed. New Yorkrecognizes foreign judgments under princi-ples of comity, by which foreign judgmentswill be accorded recognition absent a show-ing of fraud, or that recognition would violatea strong public policy of this state. Comityrefers to a spirit of cooperation between tri-bunals of this state an other sovereign states.As stated by the US Supreme Court, “‘Comity’ in the legal sense, is neither a mat-ter of absolute obligation, on the one hand,nor of mere courtesy and good will, upon theother. But it is the recognition which onenation allows within its territory to the leg-islative, executive or judicial acts of anothernation, having due regard both to internation-al duty and convenience, and to the rights ofits own citizens, or of other persons who areunder the protection of its laws.”42

CPLR Article 53 is the Uniform ForeignCountry Money-Judgment Recognition Act,which gives recognition to a foreign judg-ment which is “final, conclusive and enforce-able where rendered.” A foreign judgment isnot viewed as conclusive, and hence not enti-tled to 43recognition, where the foreign tribu-nal is not impartial or fails to accord dueprocess, or where the tribunal lacked person-al jurisdiction over the defendant. Among thediscretionary grounds listed in CPLR 5304(b)for refusing to give a foreign judgment recog-nition is that it conflicts with another judg-ment which is final and conclusive. TheBelgian judgment which plaintiff sought toenforce conflicts with the original Turkishjudgment, and with the German judgmentwhich recognized it. Thus, CPLR 5304(b)allows the court to refuse to recognize one orboth of the conflicting judgments. The Courtnoted that under 5304 the New York courtsmay recognize the earlier judgment, the later,or neither. The last-in-time rule need not beapplied to conflicting foreign court judg-ments. These rules are applied here by deny-ing recognition to the Belgian judgment,which itself failed to apply res judicata or toobserve comity by permitting the plaintiff torelitigate the merits of the underlying contro-versy and failed to recognize the Turkishjudgment. A sheriff (or as here a marshal)who serves an execution on a judgment, butfails to actually collect anything, may still beentitled to poundage where the judgmentdebtor has affirmatively interfered with thecollection process. The question presented inSolow Mgt. Corp. v Tanger 44was whetherthe filing of an appeal bond constitutes suchaffirmative 45 interference. The Court ofAppeals held that it did not. The action grewout of a 1991 rent strike. A final judgmentwas entered in 2004, attorneys fees againstthe defendants of $655,241.10. Plaintiffbegan enforcement proceedings, whichincluded the service of an execution onMerrill Lynch against the defendants’accounts, on August 17, 2004. The day afterthe service of the execution, defendants filedan appeal bond with the Supreme Court, stay-ing all collection proceedings. The judgmentwas eventually reversed, and in July of 2005the restraint on defendants’ accounts was lift-ed and the marshal released the assets, exceptfor $32,912.55 in poundage and otherclaimed fees.

The Supreme Court held in favor of themarshal, accepting the argument that theappeal bond constituted affirmative interfer-ence. The Appellate Division reversed, andthe Court of Appeals affirmed. The posting ofan appeal bond cannot be viewed as affirma-tive interference. The appeal bond does notrequire the vacatur of the levy, but staysenforcement of it until the determination on


CPLR Update 2009

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the appeal. If the appeal is unsuccessful, thelevy remains in place and the marshal is freeto collect. A contrary holding would “dis-courage” aggrieved litigants from pursuingan appeal lest they add poundage fees to theunderlying judgment amount.

Judgment debtors whose income is exemptfrom execution, because it is derived fromSocial Security, disability, pensions, publicassistance, child support, or veteran's bene-fits, may nonetheless find their exempt fundsfrozen due to restraining notices if the fundshave been deposited in bank accounts. TheLegislature has added numerous provisionsto CPLR 5205, 5222, added a new 5222-a,and amended 5230, 5231 and 5232 to providefor meaningful exemption of these funds. Itestablishes a procedure for claiming exemp-tion of certain income 46 from levy of execu-tion by judgment debtors; provides that cer-tain accounts shall be exempt from execution.

CPLR 8012 has been amended, to the cir-cumstances and amount of poundage due toa sheriff where the parties have reached asettlement after the execution of a judgment.Poundage fees 47 are due on the judgmentamount or settlement amount, whichever isless. Additionally, this legislation clarifiesthat if the parties settle the judgment afterthe Sheriff serves an execution, the Sheriff isstill due the poundage fees on the settlementamount.

Jurisdiction - Subject MatterFinancial Indus. Regulatory Auth., Inc. v

Fiero 48 went all the way to the Court ofAppeals without anyone questioning whetherthe state courts had subject matter jurisdictionto collect penalties imposed under theSecurities Exchange Act. They don’t, and theCourt dismissed the action without consider-ing the merits.

Defendants Johm Fiero and his firm weremembers of the National Association ofSecurities Dealers (NASD, now known as“Financial Industry Regulatory Authority,” or“FINRA”). NASD and FINRA are self-regula-tory organizations, that is, quasi-governmentalorganizations with regulatory functions underthe Securities Exchange Act, and are regulatedby the Securities Exchange Commission. Thecase involved fines and costs of over a milliondollars imposed upon the defendants by a hear-ing panel of NASD, due to securities violationsunder the Securities Exchange Act, implement-ing regulations, and violations of NASD rules.Defendants pursued an internal appeal to theNASD National Adjudicatory Council, whichaffirmed. Under applicable Federal law, thedefendants could have sought review ofNASD’s determination by the Securities andExchange Commission, (and from there, to theUS Court of Appeals) but they did not do so.The SEC could have brought an action in fed-eral court to enforce the NASD sanctions, butthat also was not done. Rather, NASD sued inSupreme Court to recover the fine and costs,plus interest.

Defendants moved to dismiss, on thegrounds that the fine and costs had not beenaffirmed by the SEC or converted into a judg-ment. Supreme Court denied the motion,finding that the matter was grounded in con-tract law. It viewed NASD as a private mem-bership organization, with the right to imposefines on its members as authorized by statute,charter or by-laws, and further as a self-regu-latory organization operating under federallaw to regulate and discipline its members.The NASD rules authorize the impositionand collection of the fines.

Defendants then moved for summary judg-ment on limitations grounds, viewing thefines as arbitration awards and therefore

barred by the one-year limitations period on aproceeding to confirm an arbitration award.Supreme Court denied the motion, since thedisciplinary proceeding was not an arbitra-tion.

Next up was NASD’s motion for summa-ry judgment, which was granted. It viewedthe action as a collection case, to recover thefines and costs imposed in the disciplinaryproceeding.

The Appellate Division affirmed.The Court of Appeals, however, noted that

the Securities Exchange Act gives theFederal District Courts exclusive jurisdictionover violations of the Act, rules and regula-tions promulgated under it, and all suits inlaw or equity to enforce liabilities and dutiescreated under them. NASD’s suit originatedin violations of the Exchange Act, and thedisciplinary proceedings and penalties wereprovided for by the Exhange Act and rulescreated under its authority.

Even though the issue was not raised in theSupreme Court or the Appellate Division, thelack of subject matter jurisdiction is not waiv-able and may be raised at any time. A court,upon recognizing that it lacks subject matterjurisdiction, may refuse to proceed furtherand dismiss the action, and that is what theCourt did.

Jurisdiction - In Personam - Basis -Long-Arm - “Libel Tourism”

The Legislature has acted to allow forlong-arm jurisdiction over a non-residentwho has\ obtained a “libel tourism” judgmentin a foreign country, and also to preventenforcement of such judgments in NewYork.49 The Legislature was reacting to oneof the most interesting cases of 2007,Ehrenfeld v bin Mahfouz, 9 N.Y.3d 501, 851N.Y.S.2d 381[2007], in which the Court ofAppeals addressed the issue of when a partywho has never set foot in New York maynonetheless be said to have “transacted busi-ness” here for purposes of assertion of long-arm jurisdiction under CPLR 302(a)(1).

In order to understand the Legislature’sactions, it is necessary to review theEhrenfeld facts.

The complaint in Ehrenfeld sought toaddress the hot topic of “libel tourism,” inwhich a defamation plaintiff finds a claimant-friendly jurisdiction, where neither he nor thewriter have any substantial ties, presence orresources, and uses the resulting judgment tochill the writer’s free speech. The actual issuebefore the Court, however, was the much lessjuicy consideration of jurisdictional basis:whether the libel claimant’s communicationswith the writer in New York are sufficient“transaction of business” to justify long-armjurisdiction when the writer institutes anaction to enjoin enforcement of the foreignjudgment here. The “libel tourism” issue wasactually not before the Court.

The case was a prime example of the limi-tations on New York’s long-arm jurisdiction,compared to the maximum permissible juris-diction under Federal law. Ehrenfeld is anauthor, who wrote a book which, in part,accused bin Mahfouz, a Saudi national, andhis family of providing funding to al Qaedaand other Islamist terror groups. The book,Funding Evil, was published in the UnitedStates. It was available in the UnitedKingdom through the Internet, and 23 copieswere apparently sold in that manner. A chap-ter of the book was also available in theUnited Kingdom through the Internet. Theconnection to the United Kingdom was thustenuous, at best. Ehrenfeld’s connection tothe United Kingdom was essentially nonex-istent. Bin Mahfouz, asserting the falsity ofplaintiff’s claims, nevertheless turned to theEnglish courts and their libel laws, notorious-

ly favorable to defamation plaintiffs on issuesprocedural and substantive.

The communications to Ehrenfeld in NewYork, on which she sought to rely for juris-dictional purposes, were all made in further-ance of the suit in the English court. BinMahfouz’ English counsel wrote to her andasked her to make certain assurances, specif-ically: (I) to promise the "High Court inEngland" that she would refrain from repeat-ing similar allegations, (ii) to destroy or deliv-er to him all copies of Funding Evil, (iii) issuea letter of apology (to be published at plain-tiff's expense), (iv) make a charitable dona-tion and (v) pay his legal costs in exchangefor defendant's agreement to not bring adefamation action against her. This demandprocedure is apparently a predicate to suitunder English law.

When Ehrenfeld refused to accede to thesedemands, bin Mahfouz commenced suit inEngland, in the High Court of Justice,Queens Bench Division. Papers were servedupon her at her New York City residence onfour occasions between October, 2004 andMay, 2005. She claimed that on at least oneof these occasions, March 3, 2005, she was

threatened by the process server, who said:"You had better respond, Sheikh binMahfouz is a very important person, and youought to take very good care of yourself."(The process server denied making any suchstatements or threats.) Bin Mahfouz’ Englishcounsel also contacted Ehrenfeld at her homein New York by mail and email, providingher with the claim, statements of witnesses,and court orders, including an injunctiondirecting her to prevent copies of FundingEvil from entering England and Wales andthat a failure to do so could lead to her beingheld in contempt.

Ehrenfeld did not appear in the Englishaction, due to the expense, the difficultiesdefending a libel case under English law, andher belief that the bin Mahfouz was attempt-ing to chill her rights of speech in New Yorkby litigating in a jurisdiction to which shelacked any real connection. The English courtentered a judgment by default againstEhrenfeld and her publisher, providing fordamages and an injunction against any fur-ther publication of the allegations in England


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CPLR Update 2009

BY GEORGE J. NASHAK JR.*

Question #1 - DRL §250 provides for athree year statute of limitations of prenup-tial agreements that is tolled until a matri-monial action is filed or the death of one ofthe parties. This law became effective July3, 2007. Does the tolling extend to agree-ments barred by the six-year statute of lim-itations on or before July 3, 2007?Your answer -

Question #2 - Can the non payment ofchild support be a crime?Your answer -

Question #3 - Does the Child SupportCollection Unit charge a fee for its services?Your answer -

Question #4 - What must be shown in orderto modify a maintenance award containedin a stipulation of settlement incorporatedbut not merged in a judgment of divorce?Your answer -

Question #5 - In a stipulation of settle-ment, if you intend the alternate payee toshare in the New York City PoliceDepartment pension benefits of his or herspouse whether those benefits are based ona service retirement benefit or a disabilitybenefit, is it necessary to include both anordinary disability pension and accidentdisability retirement benefit? Your answer -

Question # 6 - Can maintenance be award-ed after a divorce, when the divorce judg-ment makes no provision for mainte-nance?Your answer -

Question #7 - In astipulation of settle-ment, which wasincorporated into ajudgment ofdivorce, but notmerged therein, thefather agreed to pay100% of the children’s college education.The father sought to allocate the collegecosts based upon his reduced income andthe mother’s increased income. The childsupport provision in the agreement providedfor reallocation. The College provision wasseparate and apart from the child supportprovision and did not provide for such real-location. Should the father’s obligation topay 100% of the children’s college educa-tion costs be reallocated?Your answer -

Questions #8 - If a non-custodial parentpresents insufficient and incredible evi-dence to establish his or her income, howis the court to fix child support?Your answer -

Question #9 - Does a parties’ lack of con-tribution to the marriage effect the per-centage of the marital assets that partyreceives in equitable distribution?Your answer -

Question #10 - Lower court permittedcounsel to withdraw as defendant’s attor-ney for the defendant’s failure to providefinancial information. Was it error for thelower court to refuse to adjourn the trial togive the defendant the opportunity toretain new counsel?Your answer -

*Editor’s Note: Mr. Nashak is a PastPresident of our Association and Vice-Chairof our Family Law Committee. He is a part-ner in the firm of Ramo Nashak & Brown.

ANSWERS APPEAR ON PAGE 18

Marital Quiz

George Nashak


and Wales, and a second order declaring thestatements to be false, fixing damages to binMahfouz and his sons in the amount of £10,000 each, requiring Ehrenfeld and herpublisher to publish an apology, continuingthe earlier injunction, and awarding binMahfouz his costs of litigation.

The lawsuit at issue here was commencedby Ehrenfeld against bin Mahfouz in the USDistrict Court for the Southern District ofNew York, seeking a declaration that thestatements in the book are not libelous undereither federal or New York law, and that theEnglish judgment is not enforceable in theUS generally or New York specifically. BinMahfouz moved to dismiss for lack of subjectmatter and personal jurisdiction. The DistrictCourt dismissed, on the grounds of lack ofpersonal jurisdiction, holding that the com-munications to Ehrenfeld in New York, how-ever objectionable they might have been, didnot support a business objective. Ehrenfeldappealed, and the Second Circuit certified tothe Court of Appeals the question of whetheror not the transactions described would besufficient to confer jurisdiction over thedefendant under CPLR 302(a)(1).50 TheCourt of Appeals was careful to restrict itsopinion to the certified question of jurisdic-tion, offering no opinion on English law andits differences from American and specifical-ly New York law, and rejecting the invitationfrom Ehrenfeld to discuss the issue of “libeltourism.”

Ehrenfeld’s claim of jurisdiction rested onthe notion that bin Mahfouz purposefullycommunicated with her in the state in orderto conduct a “foreign litigation scheme”intended to chill her free speech. BinMahfouz responded that the communica-tions were mere incidents to the foreign liti-gation, and that he did not transact any busi-ness here. The Court looked to the basic cri-terion for “transacting business”: whether ornot the defendant did some act to purpose-fully avail himself of the privilege of con-ducting activities in New York. If his actshave invoked the benefits of our laws, juris-diction is proper here and can reasonablyexpect to defend his actions here. None ofthe bin Mahfouz’ actions, however, met thisstandard. Rather than invoking New York’slaws, his acts furthered his litigation inEngland.

The communications were all apparentlyrequired under English law, and did not tendto further New York transactions or invokeNew York laws or procedures.

Plaintiff asked the Court to endorse theholding of a Ninth Circuit case, Yahoo! v LaLigne Contre Le Racisme. There, applyingCalifornia law, the court held that personal 51

jurisdiction was properly asserted overFrench citizens who had obtained Frenchcourt order requiring the California-basedplaintiff to alter its practices so as to preventusers of its French website from accessingNazi-related web pages. Yahoo! sued in fed-eral court in California, demanding a declara-tory judgment that the French orders were notenforceable in the US as interfering withYahoo!’s First Amendment rights.

Our Court of Appeals, however, viewedthe case as demonstrating why jurisdiction inNew York was not proper. California’s long-arm statute is designed to be as broad as pos-sible, to the limits of jurisdiction allowedunder the US Constitution. The NinthCircuit, applying California’s broad statute,held that jurisdiction was proper since theFrench citizens had “(1) committed an inten-tional act, (2) expressly aimed at the forumstate, (3) causing harm that the defendantknows is likely to be suffered in the forum

state.” In New York, however, the analogousstatute is CPLR 302(a)(3), which requires ademonstration not merely of an intentionalact, but a tortious act, and not merely of harmhere, but of “injury to person or property.” Ineffect, allowing jurisdiction under the testemployed in Yahoo! would superimposeCPLR 302(a)(3) onto (a)(1), which is adetermination for the Legislature. As it was,the New York Legislature had conferredjurisdiction over non-residents in a limitedset of cases, and Ehrenfeld was is not one ofthem.

The Court, therefore, was simply applyingwell-established jurisdictional law, observing\the limits on New York’s long-arm jurisdic-tion as established by the Legislature. TheLegislature has acted to expand our long-armjurisdiction, by adding a new subdivision (d)to CPLR 302, specifically aimed at foreigndefamation judgments. It allows for personaljurisdiction over any person obtaining adefamation judgment outside the US for thepurpose of rendering declaratory relief on aclaim that the foreign should be deemed non-recognizable under New York law.

Getting past the cause célèbre which gaverise to the amendment, the most importantthing to notice is that it expands long-armjurisdiction only in a specific case.Notwithstanding the clause in the new subdi-vision that it is intended to expand NewYork’s long-arm jurisdiction “to the fullestextent permitted by the United States consti-tution,” it does so only in these “libeltourism” cases. Our law still stops short of thefull jurisdiction allowed under theConstitution.

Plaintiffs entitled to invoke jurisdiction area New York resident or a person amenable tojurisdiction in New York who has assets inNew York or who may have to take actionsin New York to comply with the foreignjudgment.

At first blush, it would seem that this intro-ductory language allows jurisdiction in favorof any New York resident, or any non-resi-dent who may have assets here or who wouldhave to take action here to satisfy the foreignjudgment. That is not so, since the provisoswhich follow make it clear that even a NewYork resident must either have assets herewhich may be used to satisfy the judgment ormay be required to take actions here to satis-fy the judgment.

As to non-residents, it is not clear what thephrase “amenable to jurisdiction in NewYork” may mean in this context. The lan-guage of the new subdivision makes it possi-ble for a non-New Yorker, burdened with aforeign defamation judgment, to place assetsinto New York and declare himself willing tosubmit to New York’s jurisdiction solely toinvoke the right to challenge the enforece-ability of the foreign judgment in our courts.The clause concerning taking actions in NewYork to comply with the foreign judgmentseems to have been inspired by the CaliforniaYahoo! case, where the French judgmentwould have required Yahoo! to take action inCalifornia by altering its servers, which werephysically located there. It is an open ques-tion whether, put to the decision, the Court ofAppeals would agree with the Ninth Circuitthat the mere existence of such a foreignjudgment, without any attempt having beenmade to enforce it, would be sufficient to sus-tain constitutional due process.

Similarly open is whether the actionsrequired of Ehrenfeld which might be done inNew York, the issuance of an apology andensuring that copies of the book did not reachEnglish jurisdiction, would be sufficient. Thecease-and-desist portions of the English judg-ment would not seem to be sufficient for anon-New Yorker to invoke jurisdiction here,

since they forbid the United States resident todo something in England and Wales, but donot compel him to do anything in New York.

The foreign judgments involved are, ofcourse, limited to those of foreign countries,not of sister states, since those judgments areentitled to full faith and credit under the fed-eral Constitution.

The subdivision also carries the provisothat the publication as issue was published inNew York, disallowing jurisdiction in favorof an otherwise eligible plaintiff who pub-lished elsewhere. The subdivision then addsthe provisos noted above, that the resident ornon-resident amenable to jurisdiction musthave assets here which might be used to sat-isfy the judgment, or might have to takeactions here to satisfy it. This would seem tohave the effect of disallowing jurisdiction toa New York resident whose only assets areexempt from enforcement procedures underCPLR Article 52. Even if there are New Yorkassets which might be subject to enforcementof a money judgment, it is an open questionwhether that fact alone, without any attempthaving been made to enforce the judgment,would be sufficient.

In addition to CPLR 302, the Legislatureadded a new paragraph (8) to CPLR 5304,which deals with non-recognition of foreigncountry judgments. That paragraph allowsfor nonrecognition “unless the court beforewhich the matter is brought sitting in thisstate first determines that the defamation lawapplied in the foreign court's adjudicationprovided at least as much protection for free-dom of speech and press in that case as wouldbe provided by both the United States andNew York constitutions.”

It is entirely an open question as to how thecourt is to make this determination. It is anopen question whether or not there are anyjurisdictions, anywhere, which would satisfythis standard.

Moreover, one of the fundamental issuesconcerning the English judgment inEhrenfeld was not the substantive law ofdefamation, but the procedural law whichallowed the case to be heard at all. In theEhrenfeld case itself, the underlying determi-nation in the English court was made onEhrenfeld’s default. If the positions had beenreversed, a New York court might well havedenied a judgment, despite the default, upondetermining that it did not have personaljurisdiction over the defendant. What is to bedone in cases where the substantive law ofthe foreign jurisdiction is as protective of therights of speech and press as New York, butthe procedural law is as liberal as England’s?

Finally, and undoubtedly of lesser signifi-cance, the legislation in no way addresses oneof the fundamental issues of the Ehrenfeldcase, which is that bin Mahfouz himself hadno connection to England. It was that fact,after all, which put the “tourism” in the “libeltourism” label. Had American proceduralstandards been applied, Ehrenfeld might havehad a strong argument for dismissal of forumnon conveniens grounds.

Jurisdiction - In Personam - ServiceOutside the State

CPLR 313 allows service of process,including a summons and complaint, to beserved beyond New York’s borders in thesame manner as service is made within thestate. The requirements are that the personserved be a New York domiciliary or subjectto jurisdiction here, that service is made in thesame manner as it would be within the state,and that the process server be any of: (a) aNew York resident authorized to make serv-ice, (b) a person authorized to make serviceby the laws of the place where service ismade, or (c) an attorney, solicitor, barrister or

equivalent in that jurisdiction.In Morgenthau v Avion Resources Ltd. 52

the Court of Appeals considered whetherthere were additional requirements, arisingout of comity or treaty, which prevented serv-ice from being made in Brazil according tothe CPLR and not by letters rogatory. TheCourt concluded that there were none, andsustained service.

This action involves the alleged fruits of acriminal international money transfer schemeoriginating in Brazil. The matter was firstprosecuted by Federal authorities, who seizedover $21 million in assets deposited by thedefendants and their associates in a NewYork bank. After the United States DistrictCourt held that the government had notshown entitlement to the funds, the Federalauthorities sought the involvement of theplaintiff, the New York County DistrictAttorney, who commenced this civil forfei-ture action pursuant to CPLR Article 13-A. 53

The defendants included 14 individualsand five corporations who were served withthe summons and complaint in Brazil.Certain of the defendants were served byexpedient service on their attorneys, author-ized by an order of Supreme court. Otherswere served by personal delivery in Brazil byBrazilian law enforcement officials.54

Supreme Court dismissed the complaint,finding that the service of process in Brazilfailed to comply with either the Inter-American Convention on Letters Rogatory orwith service requirements under Brazilianlaw, and violated principles of comity. TheAppellate Division affirmed, finding that theservice of process violated Brazilian law,failed to defer to international comity, andalso failed to comply with the Mutual LegalAssistance Treaty on Criminal Matters.

The DA argued that no treaty or interna-tional agreement applied to supersede serviceprocedures under the CPLR, and that theprinciples of comity do not compel deferenceto another country’s rules for service ofprocess.

Looking at the plain words of CPLR 313,the Court noted that it contains no require-ment to serve a defendant according to thelaws of the place where he is found. The prin-ciple is well established in New York law thatservice may be made outside the state in thesame manner as service within the state. Thestatute thus has the purpose and effect ofremoving state lines as a consideration indetermining the manner of service. A plain-tiff may use any of the various methodsallowed under the CPLR to serve an out-of-state defendant.

The Court then looked to the issue of comi-ty, and found no reason why comity shouldinterfere with service of process. Comity is amatter of cooperation with the laws and inter-ests of other states, and is applied as a matterof the court’s sound discretion. The doctrineusually arise in the context of enforcement offoreign-country judgments, but has neverbeen applied so as to make foreign laws con-trolling in a New York lawsuit. The NewYork plaintiff was therefore not required, as amatter of comity, to comply with Brazilianlaw requiring service by way of letters rogato-ry. Comity, a discretionary principle, shouldbe distinguished from treaty law. A treaty isthe supreme law of the land, and would super-sede the CPLR if applicable. The Court foundthat there was no treaty applicable to the cir-cumstances which would have required a dif-ferent procedure. The Hague Convention isnot controlling, since Brazil is not a signatoryto it. Both the US and Brazil are signatories tothe Inter-American Convention on LettersRogatory, but it is well established that thetreaty does not limit the means of service to

Continued From Page 15 ________________

CPLR Update 2009



that the evidence was false, the attorneymust correct the situation. If the attorneyknows of false statements made by a clientduring a deposition (called an “examina-tion before trial” in New York), the attor-ney must act immediately. Comment 10 toABA Rule 3.3 provides that the “advo-cate’s proper course is to remonstrate withthe client confidentially, advise the clientof the lawyer’s duty of candor to the tribu-nal and seek the client’s cooperation withrespect to the withdrawal or correction ofthe false statements or evidence.” If thatfails, then the attorney must withdrawfrom the representation, if the court per-mits. If withdrawal is not an option or willnot undo the effect of the false evidence,“the advocate must make such disclosureto the tribunal as is reasonably necessaryto remedy the situation, even if doing sorequires the lawyer to reveal informationthat otherwise would be protected by[ABA Model Rule 1.6, Confidentiality ofInformation].”36

Attorneys may not use discovery tacticsto delay litigation or force settlement.

Discovery abuse is a persistent problemin the legal profession. Legal commenta-tors continue to call for reform, while crit-icizing the effectiveness of “moralistic ser-mons about the breakdown of civility inthe legal profession and nostalgic yearningfor the good old days when lawyers actedlike gentlemen.”37 In SCM SocietaCommerciale S.P.A. v. Industrial &Commercial Research Corp., one of manycases on the subject, the court wrote aftera year-and-a-half battle between the par-ties over discovery motions that “the onlythings accomplished in this time span arethe production of incomplete answers toPlaintiff’s first set of interrogatories, theimpregnation of my file cabinets, the gen-eration of legal fees and the fact that I haveaged a year. Or is it ten?”38 The courtnoted that many defendants instruct theirattorneys to delay litigation to make theplaintiff lose money and interest in thelawsuit. Although this practice detersfuture litigation and is desirable from adefense standpoint, it is “indefensibleunder the Federal Rules of CivilProcedure”39 and potentially sanctionableunder Rule 37.

The ABA Model Rules impose an ethicalduty to avoid using discovery delay tactics.Canon 31 of the ABA Canons of ProfessionalEthics, a predecessor to the Model Rules,provided that “[t]he responsibility for advis-ing as to questionable transactions, for bring-ing questionable suits, for urging question-able defenses, is the lawyer’s responsibility.He cannot escape it by urging as an excusethat he is only following his client’s instruc-tions.”40 ABA Model Rule 3.4 provides thatan attorney shall not, “in pretrial procedure,make a frivolous discovery request or fail tomake reasonably diligent effort to complywith a legally proper discovery request by anopposing party.” N.Y. Rule of ProfessionalConduct 3.2 similarly prohibits an attorneyfrom using means “that have no substantialpurpose other than to delay or prolong theproceeding.” N.Y. Standard of Civility VI(A)advises attorneys to avoid discovery proce-dures designed to place an undue burden orexpense on a party. Attorneys should adviseclients that they will not use delay tactics.

D. Ethical Considerations During theMotion Stage of Litigation.

In contemplating responses to anotherparty’s motion or application, attorneys

should consider not only tactical but alsoethical and professionalism issues amotion or application might present. Whenanother attorney requests additional timeto respond to a motion or meet a deadline,opposing attorneys should recall that atsome later point in the litigation theymight be in the same position.

Attorneys must treat other attorneys withrespect and grant their reasonablerequests.

The court in Regional TransportationAuthority v. Grumman Flexible Corp.addressed the issue of how attorneys treattheir fellow attorneys, noting that “[i]t is atruism that a commission and a uniformmay make someone an officer, but not anofficer and a gentleman. Apparently thesame may be said of a license to practicelaw.”41 In that case the defendant’s replybrief was due on a Friday, immediately fol-lowing an immobilizing snowstorm inWashington, D. C., where defendant’slocal counsel’s offices were located. Theattorney was unable to travel to his officeto complete the brief for a timely filing.The attorney telephoned plaintiff’s counselto ask whether he would agree to a four-day extension. The plaintiff’s attorneytwice refused, forcing defendant’s Chicagocounsel to serve a notice of motion andappear in court for an extension. The plain-tiff’s attorney did not appear at the motioncall. In granting the extension, the courtnoted that because the brief was the finalbrief on the motion, there was no reason forthe plaintiff’s attorney not to have acqui-esced to the requested extension.42

The court criticized the plaintiff’s attor-ney’s behavior. The court wrote that plain-tiff’s attorney “continued to show the samemyopic view of the matter that caused theneedless effort in the first place” and thathe continued to “characteriz[e] the issue aswhether anyone may be forced to stipulateto an extension.”43 The court explainedthat the plaintiff’s attorney was missing thepoint and that “[w]hat is rather involved isthe responsibility of a lawyer in dealingwith his fellow lawyer.”44 The court thensummarized “what every lawyer is expect-ed to know and live by”45: lawyers shallseek their clients’ lawful objectivesthrough reasonably available lawful meansunder the disciplinary rules but that “rea-sonably available means” do not includerefusing to accede to an opposing counsel’sreasonable requests that do not prejudicethe client’s rights. Attorneys should becourteous to opposing counsel and consentto reasonable requests about court proceed-ings, settings, continuances, waiving ofprocedural formalities, and similar mattersthat do not prejudice client rights.

When the plaintiff’s attorney appearedin court on the motion to tax fees, hisexplanation was that he did not agree tothe extension because his client did not. Inresponse, the court stated that “the thrustof the [Model] Code [of ProfessionalResponsibility] is that such a decision–cer-tainly in the circumstances here–is for thelawyer and not for the client at all.”46 Thecourt was also alarmed that the attorney’sargument in response to the motion forfees, after having had the Code provisionscalled to his attention, remained the same,namely that his conduct was justified. Thecourt reprimanded the attorney to “relievethe defendant of a burden in unjustly-caused attorneys' fees and expenses that itshould not have been required to incur andshould not be required to bear.”47 Thecourt wrote that the attorney had multi-plied the proceedings in the case “unrea-

sonably and vexatiously” and ordered himto pay the defendant’s attorney’s fees.48

The N.Y. Standards of Civility address-es attorneys’ interactions with other attor-neys.49 Attorneys should respect theschedule and commitments of opposingcounsel while protecting their client’sinterests. Attorneys should agree to rea-sonable requests for extensions of time,consult with other attorneys to avoidscheduling conflicts, and promptly notifyopposing attorneys and the court whenthey must cancel or postpone hearings,examinations before trial, meetings, orconferences. As the Preamble to theStandards notes, the civil-litigationprocess cannot work unless attorneys treateach other with civility and respect.

Attorneys must reveal to the court bind-ing, adverse authority.

Attorneys must act professionally whenthey communicate with the court. The focusin written motion papers should be on themajor points on which the motion turns.Attorneys should always address andattempt to rebut their opponent’s arguments.Ignoring opposing counsel’s difficult issueswill not make them disappear. Attorneysshould file motions only if they haveanswers to their opponent’s arguments.

Attorneys have an ethical duty to call tothe court’s attention directly adverse andcontrolling legal authority in the applicablejurisdiction. N.Y. Rule of ProfessionalConduct 3.3(a)(2) provides that an attorneyshall not knowingly “fail to disclose to thetribunal controlling legal authority knownto the lawyer to be directly adverse to theposition of the client and not disclosed byopposing counsel.” Federal and New Yorkcourts have disciplined attorneys for failingto do so.50 The attorney is always free,however, to argue that the cited authority isnot sound or that the court should not fol-low it. Comment 4 to ABA Model Rule 3.3adds that “[t]he underlying concept is thatlegal argument is a discussion seeking todetermine the legal premises properlyapplicable to the case.”

E. Ethical Considerations DuringPretrial Negotiations.

Negotiation ethics have received muchattention in recent years. The AmericanBar Association Litigation Section hasadopted guidelines on the ethics of settle-ment negotiation.51 Ethical boundariesplay an important role in negotiationsbecause of the conflicting duties that arise.Although the attorney’s primary duty is tothe client, ethical proscriptions imposeduties on attorneys in their dealings withother attorneys and parties.

Clients come first in the negotiation.No matter the stage of litigation, the

attorney always owes the client a duty toprovide competent representation. N.Y.Rule of Professional Conduct 1.1 providesthat “a lawyer should provide competentrepresentation to a client. Competent rep-resentation requires the legal knowledge,skill, thoroughness and preparation rea-sonably necessary for the representation.”Negotiations outside the courtroom callfor the same degree of preparation andcompetence that the attorney must exhibitinside the courtroom in the presence of ajudge and the public. Attorneys placeclient interests ahead of (1) the attorney’spersonal interests; (2) the desires of otherattorneys in the firm; (3) third parties; and(4) the judge’s desires.

Negotiations present unique challenges.When a third party has an interest in the

outcome of the negotiation, the attorneymust remember who the client is. N.Y.Rule of Professional Conduct 1.8(f) pro-hibits an attorney from accepting compen-sation for representing a client “from oneother than the client unless: (1) the clientgives informed consent; (2) there is nointerference with the lawyer’s independentprofessional judgment or with the client-lawyer relationship; and (3) the client’sconfidential information is protected asrequired by Rule 1.6.” Attorneys shouldrely on the N.Y. Rules of ProfessionalConduct and the Model Rules to structuretheir negotiations.

The attorney must relay to the client alllegitimate settlement offers for approval orrejection.52 It is good practice when possi-ble to relay all offers to the client in writ-ing, unless the offer is not serious. A writ-ten offer serves many purposes: (1) it helpsavoid later confusion concerning the exactterms of the offer; (2) it documents theexact terms presented to the client; and (3)it enables the attorney to comply with theN.Y. Rule of Professional Conduct 1.4(b)requirement to explain a matter to theextent reasonably necessary to permit theclient to make an informed decision.53 Theclient should counter-sign and date a copyof the letter if the settlement is acceptable.

A settlement for multiple clients requireseach client’s informed consent.

N.Y. Rule of Professional Conduct 1.7permits attorneys to represent multipleclients in civil cases if they can adequatelyrepresent the interests of each and if theclients give informed consent to the multi-ple representation. Attorneys who representmultiple clients have additional duties whentheir clients receive a settlement offer. N.Y.Rule 1.8(g) provides that “a lawyer whorepresents two or more clients shall not par-ticipate in making an aggregate settlementof the claims of or against the clients . . .unless each client gives informed consent,in a writing signed by the client.” The Ruleadds that “[t]he lawyer’s disclosure shallinclude the existence and nature of all theclaims . . . involved and of the participationof each person in the settlement.”54 Clientsmust consent to the individual settlementoffers made to each client in a joint repre-sentation.

Attorneys must not make false represen-tations during negotiations.

Ethical constraints limit attorneys’attempts to negotiate favorable settlements.N.Y. Rule of Professional Conduct 4.1 pro-vides that “[i]n the course of representing aclient, a lawyer shall not knowingly make afalse statement of fact or law to a third per-son.” This Rule can conflict with an attor-ney’s “puffing” tactics during negotiations.Puffing is not unethical; it is a commonnegotiation tactic. Comment 2 to ABAModel Rule 4.1 addresses puffing: “Undergenerally accepted conventions in negotia-tion, certain types of statements ordinarilyare not taken as statements of material fact.Estimates of price or value . . . and theparty’s intentions as to an acceptable settle-ment of a claim are ordinarily in this cate-gory . . . .” The attorney must draw a lineseparating ethically acceptable estimatesand intentions from unethical misrepresen-tations of material fact.

One helpful technique to conform withthe N.Y. Rules of Professional Conductand the ABA Model Rules is to separatestatements concerning the negotiationitself (“He won’t take a penny less!”) from

Pretrial Advocacy: An Ethical Checklist - Part II



letters rogatory. Rather, relevant Federal caselaw establishes that the treaty controls themechanism for transmittal and 56 delivery ofletters rogatory among signatory states, anddoes not preclude service by other means.

The remaining question was whether serv-ice had indeed been effected pursuant to theCPLR in Brazil, and the Court concluded thatthey had, except for four served by substituteservice or nail-and-mail.

The Court therefore reversed so much ofthe Appellate Division’s decision as dis-missed for lack of jurisdiction.

FOOTNOTES34. The Court cited Funk v. Barry, 89 N.Y.2d 364,

653 N.Y.S.2d 247 [1996] as establishing that the rule isinvoked only where there is an explicit direction to sub-mit or settle an order or judgment.

35. Wilson v Galicia Contr. & Restoration Corp., 10N.Y.3d 827, 860 N.Y.S.2d 417 [2008]

36. Plaintiff submitted neither a verified complaint oran affidavit of merit on the motion, or for that matter atthe inquest, and Safway never objected.

37.Goodyear v. Weinstein, 224 AD2d 387, 638N.Y.S.2d 108; Zelnik v. Bidermann Industries U.S.A.,Inc., 242 A.D.2d 227, 662 N.Y.S.2d 19; Wolf v. 3540Rochambeau Associates, 234 A.D.2d 6, 650 N.Y.S.2d161; Feffer v. Malpeso, 210 A.D.2d 60, 61, 619N.Y.S.2d 46; Mullins v. DiLorenzo, 199 A.D.2d 218,219, 606 N.Y.S.2d 161; Income Property ConsultantsInc. v. Lumat Realty Corp., 88 AD2d 582, 449 N.Y.S.2d799; Georgia Pacific Corp. v. Bailey, 77 A.D.2d 682,429 N.Y.S.2d 787; Union Nat. Bank v. Davis, 67 A.D.2d1034, 413 N.Y.S.2d 489; Red Creek Nat. Bank v. BlueStar Ranch, 58 A.D.2d 983, 396 N.Y.S.2d 936

38.Bass v. Wexler, 277 A.D.2d 266, 715 N.Y.S.2d873 [stating that cases to the contrary are no longer to befollowed]; Roberts v Jacob, 278 A.D.2d 297, 718N.Y.S.2d 201

39. Boudreaux v State of La., Dept. of Transp., 11N.Y.3d 321, ___ NYS2d ___ [2008]

40. Byblos Bank Europe, S.A. v Sekerbank TurkAnonym Syrketi, 10 N.Y.3d 243, 855 N.Y.S.2d 427

[2008]41. CPLR 5304(b)(5) states, relevant part: “[a] foreign

country judgment need not be recognized if . . . the judg-ment conflicts with another final and conclusive judg-ment.”

42. Hilton v Guyot, 159 US 113, 163-164 [1895]43. CPLR 530244. Campbell v Cothran, 56 NY 279, 285 (1874)45. Solow Mgt. Corp. v Tanger, 10 N.Y.3d 326, 858

N.Y.S.2d 63 [2008]46. L. 2005 ch. 57547. L. 2008, ch. 44348. Financial Indus. Regulatory Auth., Inc. v Fiero,

10 N.Y.3d 12, 853 N.Y.S.2d 267 [2008]49. L. 2008, ch. 66, effective April 28, 200850. Plaintiff also attempted to justify jurisdiction

under the “tortious act” provisions of CPLR302(a)(3),but the federal courts did not need input from the NewYork courts to hold that, however defendant’s acts maybe characterized, they were not “tortious” within themeaning of that statute.

51. Yahoo! v La Ligue Contre Le Racisme etL'Antisemitisme, 433 F3d 1199 [2006] [en banc]

Interestingly, Yahoo! wound up dismissed. Threejudges on the eleven-judge en banc panel found that

there was no jurisdiction, three others found the case notripe for determination. The six votes were combined, andthe result was a dismissal.

52. Morgenthau v Avion Resources Ltd., 11 N.Y.3d383, ___ NYS2d ___, 2008 NY Slip Op 09006 [2008]

53. After the determination that Federal authoritieswere not entitled to the funds, they were initially trans-ferred into the DA’s custody. The DA sought severalorders of attachment, which did not go smoothly for rea-sons not germane to the appeal here. Eventually, themoney was returned to Federal control, by reason of arequest from the Brazilian government and an order ofthe US District Court for the District of Columbia. As theCourt of Appeals noted, the attachment issues were thusrendered moot, leaving the service issues as the onlyones in the

case.54. The Court noted that attempts were made to serve

four of the defendants in Brazil bysubstituted service pursuant to CPLR 308(2) or “nail-

and-mail” pursuant to CPLR 308(4), but that service wasnot completed.

55. Dobkin v Chapman, 21 NY2d 490, 501 [1968]56. Kreimerman v Casa Veerkamp S.A. de C.V., 22

F3d 634, 640 [5th Cir 1994]

Continued From Page 17 ________________

CPLR Update 2009THE QUEENS BAR BULLETIN – MARCH 200918

ANSWERS TO MARITAL QUIZ ON PAGE 15Question #1 - DRL §250 provides for athree year statute of limitations of prenup-tial agreements, that is tolled until a matri-monial action is filed or the death of one ofthe parties. This law became effective July3, 2007. Does the tolling extend to agree-ments barred by the six-year statute of lim-itations on or before July 3, 2007?

Answer: Yes, provided a court did notpreviously bar an action relating to thatagreement because it violated the six-yearstatute of limitations. Amendment to DRL§250 enacted May 21, 2008.

Question #2 - Can the non payment ofchild support be a crime?

Answer: Yes, New York Penal Law§260.05(2) became effective November 1,2008. If a parent, guardian or other personobligated to make child support paymentsby an order of a court of competent juris-diction, for a child under the age of 18,knowingly fails or refuses, without lawfulexcuse, fails to provide such support whenhe or she is able to do so or becomesunable to do so, when though employablehe or she voluntarily terminates employ-ment, voluntarily reduces his or her earn-ing capacity or fails to diligently seekemployment, said person is committing aClass A misdemeanor.

Question #3 - Does the Child SupportCollection Unit charge a fee for its servic-

es?

Answer: Yes, beginning with federal fis-cal year October 1, 2008 to September 30,2009, and then each year thereafter, whenthey collect in excess of $500.00 duringthe fiscal year, an annual service charge of$25.00 will be deducted from the childsupport collected. A fee may not becharged to anyone who has ever receivedcash assistance from the federal Title IV-Aprogram.

Question #4 - What must be shown inorder to modify a maintenance award con-tained in a stipulation of settlement incor-porated but not merged in a judgment ofdivorce?

Answer: Extreme hardship. DiVito v.DiVito 56 A.D.3d 601; 867 N.Y.S.2d 334(2nd Dept. 2008)

Question #5 - In a stipulation of settle-ment, if you intend the alternate payee toshare in the New York City PoliceDepartment pension benefits of his or herspouse whether those benefits are based ona service retirement benefit or a disabilitybenefit, is it necessary to include both anordinary disability pension and accidentdisability retirement benefit?

Answer: Yes. Berardi v. Berardi 54A.D.3d 982; 865 N.Y.S.2d 245 (2nd Dept.2008)

Practice Note - Remember if you excludedisability benefits, the alternate payee willlose his or her share of VariableSupplement Benefits. The recipient of adisability pension receives 25% higherpension benefit, but is not entitled toreceive any Variable Supplement Benefits.

Question # 6 - Can maintenance be award-ed after a divorce, when the divorce judg-ment makes no provision for mainte-nance?

Answer: Yes, Wilson v. Pennington 301A.D.2d 445; 752 N.Y.S.2d 887 (1st Dept.2003).

Question #7 - In a stipulation of settle-ment, which was incorporated into a judg-ment of divorce, but not merged therein,the father agreed to pay 100% of the chil-dren’s college education. The fathersought to allocate the college costs basedupon his reduced income and the mother’sincreased income. The child support provi-sion in the agreement provided for reallo-cation. The College provision was sepa-rate and apart from the child support pro-vision and did not provide for such reallo-cation. Should the father’s obligation topay 100% of the children’s college educa-tion costs be reallocated?

Answer: No, Colucci v. Colucci 54A.D.3d 710; 864 N.Y.S.2d 67 (2nd Dept.2008).

Questions #8 - If a non-custodial parentpresents insufficient and incredible evi-dence to establish his or her income, howis the court to fix child support?

Answer: Award child support based onthe needs of the child. Evans v. Evans 870N.Y.S.2d 394 (2nd Dept. 2008)

Question #9 - Does a parties’ lack of con-tribution to the marriage effect the per-centage of the marital assets that partyreceives in equitable distribution?

Answer: Yes, in Evans v. Evans 870N.Y.S.2d 394 (2nd Dept. 2008), theAppellate Division affirmed the trialcourt’s award of 15% of the value of themarital assets and 10% of the pension.

Question #10 - Lower court permittedcounsel to withdraw as defendant’s attor-ney for the defendant’s failure to providefinancial information. Was it error for thelower court to refuse to adjourn the trial togive the defendant the opportunity toretain new counsel?

Answer: No, generally CPLR §321(c)requires that there be a 30-day stay of pro-ceedings after counsel is permitted to with-draw. An exception is when the attorney’swithdrawal is caused by a voluntary act ofthe client. Sarlo-Pinzur v. Pinzur 2009 NYSlip Op 01207 (2nd Dept. 2009)

statements concerning objective facts out-side the context of the negotiation (“Hepaid $16,000 for the car in 2005”).Statements about the negotiation are morelikely to be estimates or intentions that fallwithin Comment 2 protection, while ABAModel Rule 4.1 prohibits misrepresentingobjective facts. Another helpful techniqueis for attorneys to put themselves into theopposing attorney’s shoes to assesswhether a negotiation statement is abusiveor misleading.55

F. Conclusion.

Professional aviators from Orville andWilbur Wright to Chuck Yeager havealways counseled student pilots to main-tain checklist discipline. Checklists savelives. Just as the most competent commer-cial aviator can forget to deploy the land-ing gear, attorneys engaged in pretrial liti-gation can forget that cases are fraughtwith potential ethical quagmires. Ethicalchecklists save careers, protect the public,and promote the good administration ofjustice.

FOOTNOTES

32 Fed. R. Civ. P. 26(e)(1). Rule 26(e)(1) furtherdefines the duty to supplement Rule 26(a)(2)(B)expert- witness disclosures. This duty “extends bothto information contained in the [expert’s] report andto information provided through a deposition of theexpert.” Fed. R. Civ. P. 26(e)(2).

33 Fed. R. Civ. P. 26(g)(1).34 Fed. R. Civ. P. 26(g)(2)(A).

35 22 N.Y.C.R.R. 1200, Rule 3.3(a)(3).36 Model Rules of Prof’l Conduct R. 3.3 cmt. 10.37 Charles Yabon, Stupid Lawyer Tricks: An

Essay on Discovery Abuse, 96 Colum. L. Rev. 1618,1619 (1996) (proposing that the best solution forlawyer misconduct in discovery proceedings is thesame one parents use when their kids act up on longcar trips—tell them to “shut up and knock it off”).

38 72 F.R.D. 110, 112 (D.C. Tex. 1976). 39 Id.40 Code of Prof’l Ethics Canon 31, available at

http://www.abanet.org/cpr/1908-code.pdf.41 532 F. Supp. 665, 668 (N.D. Ill. 1982).42 Id. at 667.43 Id.44 Id.45 Id.46 Id.47 Id. at 668.48 Id.49 See Standards of Civility, supra note 2, at III.50 See, e.g., Jorgenson v. Volusia County, 846 F.2d

1350, 1352 (11th Cir. 1988) (imposing Rule 11 sanc-tions on attorney for failing to cite adverse authority);Nachbaur v. Am. Transit Ins. Co., 300 A.D.2d 74, 75-76, 752 N.Y.S.2d 605, 607-08 (1st Dep’t 2002)

(imposing sanctions and awarding attorneys fees for,among other indiscretions, plaintiff’s attorney’sfailure to cite adverse authority).

51 See American Bar Association, Section ofLitigation, Ethical Guidelines for SettlementNegotiations (2002).

52 Model Rules of Prof’l Conduct R. 1.2 cmt. 1.53 Dessem, supra note 9, at 585.54 22 N.Y.C.R.R. Part 1200, R. 1.8(g).55 Dessem, supra note 9, at 587.

*Gerald Lebovits is a judge of the New York CityCivil Court, Housing Part, in Manhattan and anadjunct professor at St. John’s University School ofLaw in Queens, New York, where he teaches trialand appellate advocacy. Joseph Capasso, J.D.(expected 2009), St. John’s University School ofLaw. Mr. Capasso, who graduated from the U.S. AirForce Academy in 1996 and served as a U.S. AirForce pilot for 10 years, won first-place honors inthe 2007 St. John’s Tinnelly Moot CourtCompetition and in the 2008 St. John’s ReardonMoot Court Competition and was a member of theSt. John’s team that received the 2008 Best BriefAward at the National Moot Court Competition NewYork City Regional Rounds.

PretrialAdvocacy: AnEthical Checklist Continued From Page 17 ________________


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