THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION

April 2012 www.nassaubar.org Vol. 61, No. 8

By Valerie Zurblis

For the first time, the Nassau County BarAssociation hosted a distinguished panel of legaland media leaders, led by Hon. Anthony Marano,Administrator, Nassau County courts, to tackle thetough issue of “Law and the Media: Freedom ofInformation vs. Individual Privacy,” at a publicseminar held on March 19 at NCBA’s headquartersin Mineola. More than 100 lawyers, judges, reporters, public

relations professionals and members of the publicattended to hear about the responsibilities of the

See MEDIA, Page 6

UPCOMING PUBLICATIONS COMMITTEE MEETINGSThurs., April 12, 2012 l Thurs., May 10, 2012 – 12:45 at Domus

OF NOTENCBA Member Benefit – I.D. Card PhotoObtain your photo for court identificationcards at NCBA Tech Center. Cost $10. April 24, 25, & 26 • 9 a.m. – 4 p.m.

Notice of Nassau County BarAssociation Annual MeetingTuesday, May 8, 2012 at 7 p.m. at DomusProxy Statement can be found on theinsert inside this issue.

The Lawyer Assistance Program provides confidential help to lawyersand judges for alcoholism, drug abuse and mental health problems.Call 1-888-408-6222. Calls are completely confidential.

FOCUS: GENERAL/OCA ISSUE

The Higher Burden of Proof RequiredFor Mortgage Foreclosure Actions

Page 3

What are a Real Estate Broker’s Rightsto File a Lien?

Page 3

Same Difference: Punitive DamagesAgainst Nursing Homes Under Common Law and Statute

Page 5

The Truth About CPLR Article 16Page 7

Basis Overstatements Could Result in a Six Year Statute of Limitations

Page 15

The Negligence Corner The Inquisition Deposition

Page 9

A View from the BenchTrials on Steroids: Opening Statementsand Re-Direct Examinations

Page 16

WHAT’S INSIDE

Law DayTuesday EveningMay 1, 2012 at DomusSee insert

113th Annual Dinner DanceSat., May 12, 2012Long Island Marriott, UniondaleCocktails 6:30 p.m. • Dinner 7:30 p.m.

Installation of Officers and DirectorsMonday, June 4, 2012, 6 p.m. at DomusSee page 6

WE CARE Met GameFriday Evening, June 1, 2012See page 18

Domus OpenMonday, June 25, 2012Eisenhower “The Red” CourseSee insert

EVENTS

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Thrashing out the thorny topic of balancing what the media needs to cover in the courts and howattorneys protect clients’ privacy were Hon. Anthony Marano, Touro Dean Lawrence Raful, News12’s Pat Dolan and Hon. John Kase. (Photo by Hector Herrera)

Seminar Explores When the Public Needs to Know

Touro Law Claims Moot Court Crown

By Valerie Zurblis

A team of third-year law students fromTouro Law School out-argued three otherlocal law schools to take the championshiptitle at the annual Hon. Elaine Jackson StackMoot Court Competition, hosted by theNassau Academy of Law and held at theNassau County Bar Association in March.Keri Mahoney, Daniel Fischer and

Michael Nolan stood in the middle of theGreat Hall and faced a panel of five toughjudges, to win their case over the St. John’sLaw School team of Shlomo Kanner andYitzak Oppenheim. This year’s esteemedMoot Court judges included Hon. JosephBianco, Judge, US District Court, EasternDistrict NY; Hon. Arthur Diamond and Hon.Vito DeStafano, Justices, NYS SupremeCourt, Nassau County; and Hon. Stack NYSSupreme Court (ret.). Traditionally, the fifthMoot Court seat is filled by the NCBAPresident, which this year was held by Hon.Susan Katz Richman, who also serves as avillage justice in Sea Cliff. The issue argued by the law students was

complicated. Christine Quigley, who alsoserved as a judge during the competition,developed the problem on the complex issueof whether the plaintiffs have standing tochallenge the constitutionality of new legisla-tion authorizing warrantless wiretapping,and whether the legislative embodied in theSpeech or Debate Clause of the Constitutionextends to nondisclosure of discovery.

More than 300 lawyers, judges and dignitaries packed the Nassau County BarAssoci ation headquarters in Mineola on April 3 to hear U.S. Supreme Court JusticeAntonin Scalia. The breakfast was hosted by the Long Island Chapter of the FederalistSociety for Law and Public Policy Studies. The esteemed Supreme Court Justiceshared his views on dozens of legal issues. After addressing the group, the Justicegraciously answered questions from the audience for more than 90 minutes.

See TOURO, Page 11

U.S. Supreme Court Justice Antonin ScaliaSpeaks at Nassau County Bar Association

NCBA President Susan KatzRichman (center) greets JusticeScalia with (from left) NassauCounty Clerk Maureen O’Connelland Robert A. Bruno, Justice,Supreme Court, Nassau.

Hector Herrera

Top Law, Media Leaders Make Their Cases

2 n April 2012 n Nassau Lawyer

Nassau Lawyer n April 2012 n 3

The Higher Burden of Proof Required For Mortgage Foreclosure Actions

In many industries, the ElectronicAge has replaced filing cabinets with theelectronic storage of documents, which isfrequently accompanied by the purgingof original documents. Inaddition, to this newElectronic Age manner ofstoring documents, our cur-rent mortgage crisis has cre-ated a chaotic scene of fre-quent, sloppy assignments ofmortgages, and a commontechnique of transferringmortgages upon a borrower’sdefault to permit the transfer-ee to proceed with the hasslesof foreclosure. In mortgageforeclosure actions, this hasproven to be a fatal error forthe plaintiff-mortgagee andan easy win for the defendant-mort-gagor, especially where courts haverecently increased the burden uponmortgagees to establish their prima faciecase. Indeed, some courts have

ruled that a plaintiff’s failureto demonstrate ownership of asubject mortgage through theproduction of an original noteand mortgage (which may beassigned simply by deliverywithout any written assign-ment), mandates a dismissalof the foreclosure action due tolack of standing. Althoughsome courts have acceptedvalid written assignments inlieu of original loan documentsto establish standing, mort-gagees must hurdle a heavy burden toprove the enforceability of such assign-ments, including proper endorsementsand the assignor’s authority to effect anassignment.1 This was an infrequent

problem for plaintiffs pre-ElectronicAge – before original loan documentswere electronically stored and beforemortgages were assigned and re-

assigned in bulk by the click ofa button. In the very recent case of

Bank of New York v.Silverberg, the New YorkAppellate Division for theSecond Department dismisseda foreclosure complaint due toplaintiff’s lack of standingunder CPLR 3211(a)(3), wherethe plaintiff did not possess thepromissory note. The court fur-ther ruled that plaintiff’sassignment of the mortgagewas a nullity, because theassignor, Mortgage Electronic

Registra tion Systems, Inc. (“MERS”),was never the lawful holder of the noteand was without authority to assign thepower to foreclose to plaintiff.2

The Second Departmentdevoted a substantial part ofthe Bank of New York decisionto define “MERS,” i.e., a sys-tem used to track ownershipinterests in residential mort-gages and to streamline themortgage process by usingelectronic commerce to elimi-nate paper. Lenders who aremembers of MERS identifyMERS as nominee and mort-gagee for lenders’ successorsand assigns; thus, while theoriginal mortgage is filed andindexed in the county clerk’s

office, assignments and transfers thereofare not, and are only tracked withinMERS’s private system. Clearly, the Bank of New York v.

Silverberg decision, proclaiming that

MERS (which holds approximately 60million mortgage loans and is involved inthe origination of approximately 60 per-cent of all mortgage loans in the UnitedStates) is not a lawful holder or assigneeof promissory notes, will have wide-spread implications. Indeed, the SecondDepartment has essentially ruled thatassignees, who purchased what theybelieved to be legal and enforceablenotes from MERS, actually purchasednothing of value.3Currently, the issue of standing is an

affirmative defense, which the defendantmust timely raise in an answer or pre-answer motion to dismiss. If a defendantfails to raise the defense timely, thedefense is deemed waived, and a trialcourt commits reversible error if it raisesthe issue of standing sua sponte.4However, Bill No. A629-B/S697-A – a

proposed amendment of Real PropertyActions and Proceedings Law § 1302 –

places a higher burden upon a plaintiff-mortgagee to establish a prima facie casein a foreclosure action. Most notably, theamendment would permit a defendant toraise the defense of standing at any timethroughout the foreclosure process, andwould affirmatively require the plaintiff,or its agents, to plead that the originalnote and mortgage are in its possessionand control. The bill additionally pro-vides that only the owner and holder of amortgage and note – or its agent – shallhave standing to commence a mortgageforeclosure action (residential or com-mercial); requires the plaintiff to affirmthat it is the holder and owner, or itsagent, of the subject mortgage and note;and requires that the complaint includea copy of the original mortgage and note.Similarly, CPLR 3408(e) states that theplaintiff should arrive at the mandatory

See FORECLOSURE, Page 19

JosephCapobianco

What are a Real Estate Broker’s Rights to File a Lien?It is evident that real estate brokers do not have ade-

quate protections and need to lobby their New YorkState legislators to give them treatment on par with thetreatment and protections given to the likes of aplumber or an electrician. Brokers need further protec-tion in situations involving services rendered to marketand sell units in new developments, where unpaid com-missions can become a significantly large receivable.Inevitably, brokers agree to reduce their commissionsbut will be expected to expend large sums of money anddevote much time to market a new development.Brokers should have adequate protections to file liensto enforce their priorities over even a mortgagee.It may be wishful thinking, but an overlooked and

useful tool may exist to protect brokers who are savvyto include in their exclusive agreement an express pro-vision for a notice of pendency to protect them from

developers who refuse to pay a commission. This situa-tion could arise due to the developer directly hiringaway a disloyal and defecting broker, originallyassigned to the project by the listing or exclusive bro-kerage firm. This situation could also ariseafter a developer terminates the broker’sagreement and prohibits the brokers fromreturning to the job site for less than honor-able motives. By the time a litigation windsits way through the court system, the last ofthe units in a new development will havelikely been sold, leaving the broker withoutany remedy to collect a money judgment,unless it can prove grounds to pierce the cor-porate veil.

Lis Pendens/Notice of PendencyThe protection afforded by a lis pen-

dens or notice of pendency of an actionbetween the property owner and thevendor is generally that it places the outside worldon actual and constructive notice that if they buythe property or loan money and take a mortgage,that they may be doing so subject to the lien. Ajudgment or notice of pendency of an action offersstrong leverage over the owner to pay his billbecause he will be unable to give clear title so longas the lien remains on the property. The ownerwould be forced to pay the broker or he may haveto escrow money to secure the lien to proceed withthe transaction.To survive a motion to dismiss or vacate a

notice of pendency filed by a party claiming to be enti-tled to one, the broker must be able to allege and provethat the “action … would affect the title to, or the pos-session, use or enjoyment of the real property …” owned

by the developer. See CPRL 6501. Generally, the courts have held that a real

estate broker’s commissions are in the natureof monies earned or due under contract andnot deserving of the right to file a notice ofpendency. See Homespring, LLC v. HyungYoung Lee, 55 A.D.3d 541, 866 N.Y.S.2d 212(2nd Dept. 2008); Topper v. Kane, 138N.Y.S.2d 323 (Sup. Ct. Nassau County 1955).A commission agreement does not normallymake the real estate broker a party to or apartner in the underlying transaction. One case, however, has held that “unless

otherwise specifically agreed between theparties, a real estate broker’s commissionsare in the nature of monies earned or due

under contract.” Coast to Coast Properties, Inc. v. Vella,2007 WL 4144252, 2007 N.Y. Slip Op. 33689(U) (N.Y.Sup. Ct. Nov. 2, 2007). While this isolated caseaddressed a broker’s unpaid commission for the sale ofreal estate, (not the commercial rental of same), thecourt found the language “unless otherwise specificallyagreed between the parties” in the Lien Law. WhileCoast to Coast is not a mechanic’s lien case, it borrowedthe language giving broker’s certain rights when theyearned a commission for a commercial rental in excessof three years in duration.

See LIEN, Page 19

Gabrielle R.Schaich-Fardella

Henry E.Rakowski

4 n April 2012 n Nassau Lawyer

As President, I am often asked to promote the NassauCounty Bar Association by publicizing the benefits of member-ship. Indeed, there are countless, ever increasing diverse oppor-tunities for our members to the point that it has been suggest-ed to me that we adopt the motto, “No Lawyer Left Behind!”How appropriate, since the real benefit is belonging. We have our magnificent home, Domus, a fantastic, historical

building with true character, where we gather to break bread,conduct business and meetings, and learn. However, you knowwhat they say, “it’s not just the _____ and ______, it’s the com-radery and the collegiality that’s housed inside.” (Yes, that was atest!) We have 60-plus active committees practically encompassing

every area and aspect of law, and our new NCBA Career Center– Long Island’s First Online Job Board for the Legal Profession,plus networking galore. Our “Call-A-Colleague”Program provides experienced attorneys withexpertise in designated subjects to share informa-tion and informal advice with fellow NCBA mem-bers free of charge. Nexus is another perk throughwhich NCBA members can connect with other attor-neys seeking to share office space or support servic-es, relocate, or form partnerships.Our Nassau Academy of Law (NAL) is second to

none in offering a plethora of programs to keep ourpractitioners current on the law and their CLErequirements. Upcoming Dean’s Hours span thegamut from “The Processing of Medical MalpracticeCases in Nassau County,” featuring AdministrativeJudge Anthony Marano and Statewide Coordinatorfor Medical Malpractice Matters Judge Ann Pfaudiscussing recent system changes, dedicated Partsand early settlement, on Monday, April 16, 2012from 12:30 pm-2:00 pm, to “Objection!” with JudgesStack and Engel on Tuesday, April 17th – sametime and place, “Pet Custody Issues in Divorces and Non-Marital Break-Ups” from 12:30-2:00 pm on Thursday, April 19,2012, and the Second Annual Forum on International Law:“TheImpact of the Hague Convention on Intercountry Adoption”addressed by U.S. State Department and Citizenship &Immigration Services representatives and others, joined byguest high-level officials from Foreign Consulates, on Thursday,May 10, 2012, 12:30 pm-2:00 pm. Of course, mention must bemade of our NAL Domus Scholar Circle, through which NCBAmembers can get all of their CLE for only $189 (see back pagefor details). Armed with the requisite knowledge, NCBA members can

further benefit from our Lawyer Referral Information Service(LRIS). Just one case through LRIS covers the annual fee tojoin. Our Referral Service is advertised to the general public inneed of counsel online and in the court system, generating manycalls which will certainly increase given the recent addition ofspecialized notices being distributed throughout our courts dur-ing every stage of criminal and matrimonial proceedings to anyand all pro se litigants. Pro Bono and Community Service opportunities also

abound with NCBA membership. Our Mortgage ForeclosureProject, Senior Citizen Consultation Clinics, and Volunteer

Lawyers Project have helped thousands of families and indi-viduals facing the loss of their homes and other pressinglegal issues and needs. Newly established Veteran/MilitaryPersonnel and Domestic Violence Victim Programs providedesperately needed legal guidance on civil law issues, suchas, rights and entitlements, housing, immigration, and mat-rimonial and child custody matters. Our CommunityRelations & Public Education Committee coordinates theNCBA’s Speakers Bureau, Lawyers in the Classroom, MockTrial Tournament, Student Mentoring and BOLD (BridgeOver Language Divides) project – our Foreign LanguageCommunity Outreach. By no means exhaustive, each andevery one of these educational and law-related services areprovided free of charge only through the dedication and vol-untary participation of NCBA members – and that makes all

of us proud!NCBA membership also comes with corporate

partnership discounts on a variety of goods, servicesand activities including: Davis Optical, BrooksBrothers, 1-800-Flowers, Staples Online, UPS,Hertz, Avis and Budget Car Rentals; Bank ofAmerica credit card, Jamar Printing, RealtimeReporting, Holtz Rubenstein Reminick accountingand appraisals, Champion Office services andParagon Group corporate real estate; CBS CoverageGroup, Inc. professional liability and workers’ com-pensation plans and North Park Consultantsincome replacement options, long term care, life andmulti-carrier medical plans; and Equinox Fitness,Health Trax Fitness and Sky Athletic Club.Sure, the material benefits of NCBA member-

ship are terrific. My personal favorites are the blackand gold totes in which all new members receiveNCBA logo goodies such as, pens, letter openersand luggage tags. That’s because I am truly a “bag

lady,” who can always be spotted carrying at least two or threeas I run between the courthouse, Domus, home and the barn. Ilove those bags almost as much as I cherish the NCBAPresident’s name tag that I’ve worn as often as I can since myinstallation, because the real benefit is belonging to the NCBAfamily – it makes us feel good! WE CARE about our community through charitable grants

to improve the quality of life for children, the elderly and oth-ers in need throughout Nassau County. And we take care ofeach other with our Lawyer Assistance Program (LAP), whichprovides free 24-hour confidential assistance to all attorneys,judges and law students, who are struggling with problems ofaddiction, stress, depression or any other debilitating physicalor emotional illness. Recently, a group of highly respectedNCBA leaders has launched a campaign to raise funds criticalto continuing LAP’s crucial services. The Former AssistantDistrict Attorneys Association (FADA) and the CriminalCourts Bar Association (CCBA) have joined in our effortsbecause the NCBA’s LAP is there for all of us. Toward thatcommon goal, on Wednesday, April 18, 2012, 5:30 pm-7:30 pm,the NCBA and the CCBA are hosting “Ethics for the CriminalDefense Attorney,” a two (2) credit Ethics CLE seminar atDomus. Please see page 2, and note that all proceeds will ben-efit LAP. Belonging is the benefit; it’s our profession, and if wedon’t help each other, no one else will!

BELONGING IS THE BENEFIT!

FROM THEPRESIDENT

Susan Katz Richman

The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York Statelawyers. Views expressed in published articles or letters are those of the authors’ alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA,unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.

PresidentSusan Katz Richman, Esq.President-ElectMarian C. Rice, Esq.First Vice PresidentPeter J. Mancuso, Esq.Second Vice PresidentJohn P. McEntee, Esq.TreasurerSteven J. Eisman, Esq.SecretaryMartha Krisel, Esq.Executive DirectorDeena R. Ehrlich, Ph.D.

Co-Editors In ChiefDeanne M. Caputo, Esq.Daniel W. Russo, Esq.Editor/Production ManagerMindy SantaMariaAssistant EditorValerie ZurblisPhotographerHector Herrera

Focus of the MonthOCA/General Issue

Upcoming 2012 Focus IssuesMay – Matrimonial & Family LawJune – Criminal LawJuly/August – Personal Injury

Committee EditorsDeborah S. Barcham, Esq.Gale D. Berg, Esq.Richard D. Collins, Esq.Christopher J. DelliCarpini, Esq.James Fiorillo, Esq.Andrew R. Fuchs, Esq.Avrohom Gefen, Esq.Nancy Gianakos, Esq.Kristina S. Heuser, Esq.Charles E. Holster III, Esq.Paul Hyl, Esq.Gail Jacobs, Esq.George M. Kaplan, Esq.Martha Krisel, Esq.Kenneth J. Landau, Esq.Douglas M. Lieberman, Esq.Thomas McKevitt, Esq.Daniel W. Russo, Esq.Meryl D. Serotta, Esq.Rita Sethi, Esq.Allison C. Shields, Esq.Andrij V.R. Szul, Esq.Chris Wittstruck, Esq.

Published by Long Island Business News (631) 737-1700; Fax: (631) 737-1890

President and PublisherJohn L. Kominicki

Graphic ArtistNancy Wright

Nassau Lawyer (USPS No. 007-505) is publishedmonthly, except combined issue of July andAugust, by Long Island Commercial Review,2150 Smithtown Ave., Suite 7, Ronkonkoma,NY 11779-7348, under the auspices of theNassau County Bar Association. Periodicalspostage paid at Mineola, NY 11501 and at addi-tional entries. Contents copyright ©2012.Postmaster: Send address changes to theNassau County Bar Association, 15th and WestStreets, Mineola, NY 11501.

The Official Publication of the Nassau County Bar Association

15th & West Streets Mineola, N.Y. 11501Phone: (516) 747-4070Fax: (516) 747-4147www.nassaubar.org

E-mail: info@nassaubar.org

NassauLawyerNassauLawyer

NCBA Officers

Over the past decade, New York nurs-ing homes have seen dramatic increasesin the number of personal injury actionscommenced by or on behalf of their resi-dents, a trend largely attributable toappellate decisions, followed by legislativeaction, recognizing the availability ofrecovery under Section 2801-d of thePublic Health Law in addition to alreadyexisting common law remedies.From the nursing home’s

perspective, the most problematicaspect of the Section 2801-dcause of action may be the pos-sible imposition of punitivedamages for “deprivations” ofresident “rights or benefits”deemed “willful,” or committedwith “reckless disregard” ofsuch rights and benefits, pur-suant to Section 2801-(d)(2).Since Section 2801-d providesno statutory ceiling on punitivedamage awards, nursing homedefendants would need to demonstratethat such awards were grossly excessiveto obtain a reduction.1Furthermore, since punitive damage

awards are generally uninsurable underNew York law as a matter of public poli-cy,2 the nursing homes, not their profes-sional liability insurance carriers, wouldbe financially responsible for their pay-ment. Although there have been only afew reported cases of punitive damageawards under Section 2801-d(2), includ-ing jury verdicts of $15,000,0003 and$200,000,4 the potential for high exposurepunitive damage awards threatens theviability of all New York nursing homes. There has been some debate in the

courts as to whether the legal standardfor awarding punitive damages under thecommon law is any different from thestandard set forth in Section 2801-d(2). Asset forth herein, these two standards areessentially identical, and accordingly,punitive damages should only be recover-able in very rare instances under Section2801-d(2).

Punitive Damages Under the Common Law

From a technical standpoint, punitivedamages are not designed to compensateplaintiffs but rather, as the term con-notes, to punish the party that inflictedthe harm. At common law, punitive damages are

available for the purpose of vindicating apublic right, only where the actions of thealleged tortfeasor constitute gross reck-lessness or intentional, wanton or mali-cious conduct aimed at the public general-ly or are activated by evil or reprehensiblemotives.5 Under the common, law NewYork courts have held that “punitive dam-ages are warranted where the conduct ofthe party being held liable evidences ahigh degree of moral culpability or wherethe conduct is so flagrant as to transcendmere carelessness, or where the conductconstitutes willful or wanton negligenceor recklessness.”6Consistent with the foregoing princi-

ples, the Court of Appeals has held thatpunitive damages are permissible in per-sonal injury cases under very limited cir-cumstances, where a “very high thresholdof moral culpability is satisfied.”7 In Rey v.Park View Nsg. Home, Inc.8 a negligenceand medical malpractice action com-menced by the estate representative of adeceased nursing home resident (with noSection 2801-d claim), the SecondDepartment affirmed the dismissal of the

plaintiff’s common law punitive damagesclaims. In Rey, the plaintiff alleged thather decedent, a 76-year-old resident of thedefendant’s nursing home, fell out of arecliner, fracturing her hip, after beinginvolved in several prior falls at the nurs-ing home.9 The Second Department heldthat under this factual scenario, “it can-not be reasonably concluded that the

nursing home’s conduct wassuch as would warrant theaward of punitive damages tothe plaintiff.”10Subsequently, in Hale v.

Odd Fellow & Rebekah HealthCare Facility,11 the FourthDepartment similarly dis-missed the punitive damagesclaims asserted by the estaterepresentative of a deceasednursing home resident. In Halethe decedent fell through alarge hole in the floor createdduring a construction project at

the facility. Citing applicable appellateprecedent, including Rey, the FourthDepartment affirmed the lower court’sdismissal of the punitive damages claims,concluding that the alleged wrongdoingdid not “evidence – a high degree of moralculpability or ... [was] ... so flagrant as totranscend mere carelessness ... or ... con-stitute – willful or wanton negligence orrecklessness.”12The verbiage in Section 2801-d(2)

requiring a showing of “willful depriva-tions” of resident rights and benefits, ordeprivations committed in “reckless disre-

gard” of those rights and benefits to sup-port a punitive damage claim is strikinglysimilar to the language in the above-citedcases governing the awarding of punitivedamages under the common law. Notwithstanding the apparent lack of

meaningful differences between the com-mon law standard and Section 2801-d(2)’sstatutory language, however, some NewYork trial courts have questionedwhether the two standards are identical.In fact, some trial level courts have heldthat the standard for imposing punitivedamages under Section 2801-d(2) is lessstringent than the common law standard,a view which, if adopted by the appellatecourts, would create even bigger problemsfor nursing home defendants thanalready exist, increasing their potentialexposure to claims for which there is noavailable liability insurance coverage.

Punitive Damages Claims Under Section 2801-d(2)

In Osborne v. Rivington House – TheNicholas A. Rango Health Care Facility,13the plaintiff, a resident of the defendant-nursing home, claimed wrongdoing in theprevention and treatment of pressuresores and that the failure to maintain hisbed’s side rails in an elevated positionresulted in an injurious fall.14 The defen-dant-nursing home moved for summaryjudgment, seeking dismissal of the com-plaint, or alternatively, partial summaryjudgment, dismissing, among otherthings, plaintiff’s claims for punitive dam-ages under Section 2801-d(2).15

After concluding that plaintiff’s opposi-tion papers raised factual issues preclud-ing summary judgment as to the claimsconcerning pressure sores and falls, thecourt addressed the Section 2801-d(2)punitive damages claim. The court con-cluded, without citation to any authority,that the standard for awarding punitivedamages under Section 2801-d(2) was“less stringent” than the common lawstandard, and that it was “premature” forthe court to consider the punitive issue,notwithstanding the completion of discov-ery in the case.16Similarly, in Demicoli v. Townhouse

Operating Co., LLC17 the defendant-nurs-ing home moved for partial summaryjudgment, seeking, among other things,dismissal of the plaintiff’s claims for puni-tive damages, which were being soughtunder the common law and Section 2801-d(2). Regarding the common law punitivedamages claim, the defendant-nursinghome submitted the applicable hospitaland nursing home records, providing a“highly detailed account of the care”18received at the facility, thereby meetingits burden for dismissal of such claims.19The court dismissed the plaintiff’s com-

mon law claims for punitive damages,concluding that the alleged wrongdoing,“while serious, does not in and of itselfevince a reckless or complete disregard orconscious indifference to justify punitivedamages under the common law.”20However, with respect to the punitive

Nassau Lawyer n April 2012 n 5

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See DAMAGES, Page 20

Keith L. Kaplan

6 n April 2012 n Nassau Lawyer

The Nassau County Bar Association

and

The Nassau Academy of Law

Cordially Invite

Members and Their Guests to Attend

Installation of

Officers and DirectorsMonday, June 4, 2012

6 p.m. at Domus

There is no fee for this event, however,

reservations are required.

Invitations to this event will be

emailed. Make sure we have a

current email address.

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The March issue of the NassauLawyer erroneously included an articleon page 15, authored by Robert Katzand Neil D. Katz, entitled, “The Carry-Over Basis Dilemma.” This article pre-viously appeared in the Nassau Lawyerin the December 2010 issue as suchtopic was relevant at that time. We atthe Nassau Lawyer pride ourselves onpublishing recent and relevant articles

on each “focus topic” of the month andrely heavily on articles from experts intheir field, such as Robert and NeilKatz. The Nassau Lawyer apologizes ifthe information in this article is nolonger recent and relevant, and assuresall of our readers that the article waspublished in error. Further, we apolo-gize to Robert and Neil if the printing ofthis article caused any embarrassment.

Correction

attorney who represents the client, pre-sented by Touro Law School Dean andProfessor of Law Lawrence Raful; whatthe media needs to cover the story,explained by News Director for News 12Pat Dolan, and the view from the benchfrom Hon. John Kase, Supervising Judgefor Nassau County Court. Afterwardsthe audience peppered the panel with

dozens of questions including ethicalconsiderations for clients, what makes“news,” how stories are edited for televi-sion, cameras in the courtroom, and per-sonal views of the panelists. The lively two-hour discussion was

moderated by Michael Markowitz,chair of NCBA’s Community Relationsand Public Education Committee,which presented the public educationseminar. The Committee’s next publicseminar is May 24 on Starting a NewBusiness.

MEDIA ...Continued From Page 1

By Valerie ZurblisHon. Joanna Seybert, Judge, US

District Court, Eastern District of NewYork, will be at the Nassau County BarAssociation on Tuesday, May 1 as theSpecial Guest Speaker at NCBA’s annu-al Law Day celebration. This year’stheme is “No Courts, No Justice, NoFreedom.”In addition to her keynote speech,

special awards will be presented to sev-eral outstanding individuals. This year’sLiberty Bell honoree is NCBAAdministrator Caryle Katz, who hascoordinated all of the Bar Association’scommunity outreach programs for thepast 22 years. The Liberty Bell Awardrecognizes a non-lawyer who hasstrengthened the American system offreedom under law by heightening publicawareness, understanding and respectfor the law. No one is more deservingthan our own Caryle Katz.Two long-time Nassau Supreme

Court staff members have been chosen toreceive the Peter Affatato CourtEmployee of the Year Award -- CentralJury Clerk, Nassau County SupremeCourt, Leonard Ambruso, and NassauCounty Supreme Court Senior CourtAnalyst, Mary Campbell, who alsoserves as Supervisor, Nassau CountyArbitration and Dispute Resolution Part;Administrator of the Attorney-Client Fee

Dispute Programs; and Coordinator ofInterpreter Services for the 10th JudicialDistrict.The Thomas Maligno Pro Bono

Attorney of the Year will be awarded toEvelyn Kalenscher, for her hundreds ofhours of pro bono service to help thosewho are in need. Several local students will also be rec-

ognized. The Mock Trial TournamentChampion Trophy and Finalist Plaquewill be presented to this year’s NassauCounty winning and runner-up highschool teams, and the WE CAREScholarship Awards will be presented. Make reservations now for Law Day,

Tuesday, May 1. The $55 reservationincludes cocktails at 5:30 p.m. followedby the awards dinner at 6:30 p.m. Mailreservations and guest names to NCBA,or download the flyer at www.nas-saubar.org.

Judge Seybert To Keynote Law Day

Nassau Lawyer n April 2012 n 7

The Truth About CPLR Article 16By Christopher J. DelliCarpini and

John M. DelliCarpiniPersonal injury attorneys in New

York routinely invoke CPLR Article 16,which can limit a defendant’s liabilitywhen other tortfeasors are found tohave contributed to the plaintiff’sinjury. Even experiencedcounsel, however, may holdmisconceptions about whatArticle 16 actually requires inpleading and practice. Thesemisconceptions can denyplaintiffs full recovery andforce defendants to pay morethan their equitable share ofliability. Properly understood,though, Article 16 presentsopportunities for both sides toensure fair outcomes in com-plex cases.

What Article 16 Says –and Doesn’t Say

CPLR 1601 limits a personal injurydefendant’s liability for non-economicloss to its equitable share whenever itsliability “is found to be 50 percent orless of the total liability assigned to allpersons liable.”1 Before Article 16’s pas-sage in 1986, a plaintiff could hold anyone defendant liable for the entire loss,regardless of how much other tortfea-sors may have been responsible for theplaintiff’s injury.2CPLR 1602 enumerates several cir-

cumstances that exempt a defendantfrom this limitation, such as non-dele-gable duties or the use of a motor vehi-cle.3

Lastly, CPLR 1603 imposes tworequirements. Any party seeking tolimit its liability through Article 16“shall have the burden of proving by apreponderance of the evidence its equi-table share of the total liability.” Anyparty seeking to invoke the exemptions

contained in CPLR 1602,however, must both “allegeand prove” that an exemptionapplies.Article 16’s brevity leaves

several questions unan-swered. For example, if adefendant bears the burden ofproving its share of liability,then must Article 16 be plead-ed as an affirmative defense?If so, then must a defendantserve a bill of particulars ifone is demanded?Defendants commonly

plead a boilerplate affirma-tive defense claiming the protection ofArticle 16 should it apply. They may notknow of any other tortfeasors at thetime the affirmative defense is pleaded,but wish to limit their liability shouldthe facts permit them to do so.Plaintiffs, eager to discover any other

potential defendants, may then serve ademand for a bill of particulars on thisaffirmative defense. Defendants ofteneither reject the demand as “palpablyimproper” or merely promise to identifysuch persons if they ever becomeknown. Either way, the whole processhas done little to advance the case.If Article 16 need not be pleaded,

when and how may a defendant claim

its benefit? And if plaintiffs must pleadany CPLR 1602 exemptions, how earlyin the ligation must they do so?For their part, plaintiffs typically

plead any CPLR 1602 exemptions in thecomplaint that appear to apply. Butwhat if disclosure shows that otherstatutory exemptions apply? What ifthe plaintiff does not realize until afterdisclosure, or even during trial, than anexemption applies?Case law resolves many of these

ambiguities and offers guidance tocounsel, though likely not what mostwould expect.

The Article 16 Affirmative Defense: Say No More

Defendants need never plead Article16 as an affirmative defense – at least,not in the Second Department.In Marsala v. Weinraub the defen-

dants alleged in their respectiveanswers that Article 16 applied. Theplaintiff demanded particulars, and thedefendants responded by stating merelythat they expected the plaintiff’s evi-dence to identify other tortfeasors.Unsatisfied, the plaintiff moved underCPLR 3042 to preclude the introductionof evidence of other tortfeasors. Thetrial court, finding the bills sufficientlyparticular, denied the motion.4The Second Department affirmed,

holding that the defendants did noteven have to plead Article 16 in the firstplace. On its face, CPLR 1601 automat-ically applies whenever the facts war-rant. Therefore, the court held, thedemand for a bill of particulars was

“palpably improper,” meaning defen-dants could have ignored it withouteven moving for a protective order.5In a lengthy concurrence, Justice

Ritter contended that CPLR 3018(b)required defendants to plead Article 16as an affirmative defense “which if notpleaded would be likely to take theadverse party by surprise or would raiseissues of fact not appearing on the faceof a prior pleading.”6 He concurred inthe result, however, because he consid-ered the bills of particulars sufficient.7Justice Ritter foresaw that under

Marsala a defendant could introduceanother nonparty tortfeasor as late asat the time of trial, possibly precludingthe plaintiff’s full recovery. In fact, inRodi v. Landau the plaintiff facedexactly that fate.8In Rodi, a medical malpractice case,

not until after plaintiff’s expert testifieddid the defendant move in limine tointroduce expert testimony blaming anonparty radiologist for the plaintiff’sinjury. Following Marsala, the courtheld that the jury would be charged onArticle 16: “While plaintiffs may havebeen surprised ... under the presentstate of the law, defendant is entitled tothe benefit of the [A]rticle 16 apportion-ment.”9Only the Second Department has

unambiguously and completely exempt-ed defendants from pleading Article 16as an affirmative defense. The FourthDepartment – the only other depart-ment to address this issue – holds to thecontrary, requiring defendants to plead

Why Refer Your Elder Law CaseTo Vincent J. Russo and Associates?

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Seniors and their families are living longer in part due to healthierlifestyles and modern medicine. �e challenge is that they are o�en out-living their money and even their ability to care for themselves.

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See ARTICLE 16, Page 17

Member ActivitiesThe Honorable Denise L. Sher,

Nassau County Supreme Court Justice,will be honored by Yashar, the attorneys’and judges’ chapter of Hadassah, at theorganization’s annual dinneron May 10th. In addition, theHonorable Pauline Balkin,retired judge of the NassauCounty Family Court, willreceive the organization’s 2012National Leadership Award.

A. Thomas Levin, a mem-ber of Meyer, Suozzi, English& Klein P.C. and Chair of thefirm’s Municipal Law, LandUse and Environmental Com -pliance and the ProfessionalResponsibility practices, willserve as a judge at the upcom-ing 25th annual We thePeople: The Citizen and theConstitution National Finals at GeorgeMason University. Nearly 1,200 highschool students from all 50 states andthe District of Columbia will test theirknowledge of the U.S. Constitution andthe Bill of Rights during the competition.Mr. Levin concentrates his practice inlocal government law, land use regula-tion, commercial litigation and mattersrelating to professional responsibility,ethics and disciplinary proceedings. He originated and chairs the firm’sVeterans’ Scholarship Program atNassau Community College. Mr. Levinis a former President of the 77,000 mem-ber New York State Bar Association, aLife Member of that Association's Houseof Delegates and a former President ofthe Nassau County Bar Association. Mr.

Levin has received numerous awardsand honors for his distinguished serviceand is an active member of many civicorganizations. He presently serves asVillage Attorney for seven NassauCounty villages and Special Prosecutorfor the Village of North Hills.

Ruskin Moscou Faltischek,P.C. senior partner DouglasJ. Good has been appointedthe firm’s first GeneralCounsel. Mr. Good will contin-ue his primary duties as a sen-ior partner in the LitigationDepartment and member ofthe firm’s Employment Lawand Corporate GovernancePractice Groups. He is also theleader of the firm’s PracticeManagement Committee. Mr.Good is a past president of the Bar Association, a fellow ofboth the American BarFoundation and the New York

Bar Foundation, as well as a member ofthe Federal Bar Council. He has servedas a member of the House of Delegates ofthe New York State Bar Association andis an alternate member of the State BarNominating Committee and a member ofthe President’s Committee on Access toJustice. Mr. Good is a frequently pub-lished author and has lectured before theAmerican, New York State and NassauCounty Bar Associations on topicsincluding professional ethics, corporateand not-for-profit governance and litiga-tion.

Robert Barnett of Capell BarnettMatalon & Schoenfeld LLP has beenappointed President and Chairman ofthe Board of Directors of the EducationalFoundation of the Nassau/Suffolk

Chapter of the National Conference ofCPA Practitioners. Mr. Barnett contin-ues to serve as Chairman of theEducation Committee and remains anactive speaker with the Long Island TaxSymposium.

Abraham B. Krieger, a senior mem-ber in the Commercial Real Estate, RealEstate Litigation and Corporate FinancePractice Groups at Meyer, Suozzi,English & Klein, P.C., has been appoint-ed by the Honorable A. Gail Prudenti,Chief Administrative Judge of theCourts of the State of New York, to theGrievance Committee for the TenthJudicial District. Mr. Krieger is a formerDean of the Bar Association’s Academyof Law and co-chair of the Sub-PrimeSubcommittee of the Real PropertyCommittee. He serves on the ExecutiveBoard of the State Bar Association’s RealProperty Committee representing theTenth Judicial District. Mr. Krieger, whohas been Counsel to the AmericanGathering of Jewish Holocaust Sur vivorssince 1978, has also served on the GreatNeck Chambers of Commerce ExecutiveBoard and the Advisory Committee ofthe United States Holocaust MemorialMuseum.

Thomas F. Liotti, an attorney fromGarden City and Village Justice inWestbury, has been named SpecialCounsel to the Board of Directors of theAtlantic Beach Club. Justice Liotti alsoserves on the Board of Governors of theClub. He recently addressed the CarlePlace Civic Association regarding thelocal criminal court and other legal mat-ters. Justice Liotti has been Westbury’sVillage Justice for 21 years and is a fre-quent author and lecturer. He has alsoserved as Chair of the Criminal Justice

Section of the State Bar Association.Deborah E. Kaminetzky of The

Law Office of Deborah E. Kaminetzky,P.C. was named “Woman of the Year” byYashar, the attorneys’ and judges’ chap-ter of Hadassah. Ms. Kaminetzky is aLife Member of Hadassah and currentlyserves on the organization’s Board ofDirectors.

Vincent J. Russo of Vincent J. Russo& Associates, P.C. was recently awardedthe Telly Award, given each year for out-standing local, regional and cable TVprograms. Mr. Russo, who concentrateshis practice in Elder Law, Special Needsand Estate Planning, received a BronzeTelly Award in the TV/ReligiousSpiritual category for an episode of hiscable television show, Family ComesFirst. The winning episode is titled“Alzheimer’s Impact on Family - TheHenley Family Story”.

Josh H. Kardisch of Kardisch, Link& Associates, P.C. recently authored“Local Law 1 and its Burden on Owners,”which appeared in a recent issue of theRent Stabilization Associ ation Reporter.Mr. Kardisch concentrates his practiceon lead, asbestos, mold and other envi-ronmental litigation.

New Partners, Of Counsel and Associates

Frank C. Dell’Amore and MichaelRaniere have been named partners atJaspan Schlesinger LLP. Mr. Dell’Amoreis a partner in the firm’s Banking andFinancial Services and Creditors’ RightsPractice Groups. He earned his JurisDoctor from Touro Law Center where hewas a member of the Moot Court Honor

8 n April 2012 n Nassau Lawyer

Hon. Stephen L.Ukeiley

IN BRIEF

COMMITTEE REPORTS

Appellate PracticeMeeting Date: March 21Chair: Lauren Bristol

The committee discussed the latestissues in appellate practice and will workon having the Appellate Division, SecondDepartment, update its website toinclude forms and make searches easier.

Federal CourtMeeting Date: March 7Chair: John Kaley

The committee featuredguest Douglas C. Palmer,Clerk of the United StatesDistrict Court for the EasternDistrict of New York, andCarol McMahon, Deputy Clerkfor the Central IslipCourthouse. With Vice ChairPeter J. Tomao, Esq., as mod-erator, Mr. Palmer and Ms.McMahon addressed upcom-ing improvements in the MandatoryElectronic Case Filing (CM/ECF) andissues affecting the federal courts, aswell as efforts to implement a new sys-tem without disruption, and they alsoprovided a plethora of general and spe-cific information about usage of the sys-tem. NCBA executive director DeenaEhrlich gave special permission to openthis meeting to paralegals working forassociation members, and the paralegalswho attended had the opportunity toinquire about the CM/ECF system andexpress their frustrations and concernswith using it. Mr. Palmer and Ms.McMahon provided information aboutthe workings of the Clerk’s Office, and

announced that the EDNY has been des-ignated as one of 14 federal districtcourts selected to participate in a 10-yearpilot program designed to enhanceexpertise in patent cases among U.S. dis-trict judges. Next meeting with feature a CLE pro-

gram on Preliminary Injunctions andOther Provisional Remedies, scheduledfor April 18, 2012, at 5:30 pm.

Matrimonial LawMeeting Date: March 7Chair: Lee Rosenberg

The committee featured aprogram entitled “Direct andCross Examination of aForensic Accountant,” whichwas moderated by Steven J.Eisman, Esq., and featuredattorneys Peter Galasso, Esq.,and Gary Tabat, Esq., alongwith accountants Lou Cerconeand David Gresen. The partic-ipants demonstrated various

approaches to the witnesses based upona fact pattern designed to recognize theimpact of a troubled economy on a hypo-thetical business and how those issueswould be addressed at trial. Memberswere provided with recent decisions oftrial and appellate courts for the preced-ing month with notable decisions high-lighted, including two recently publishedno fault divorce cases which emanatedout of Nassau County. Also discussedwere increases in the child supportguidelines and interim maintenance pre-sumptive income amounts.

Michael J. Langer

See IN BRIEF, Page 21

See COMMITTEES, Page 20

In our continued effort to be greener, much of our past "snail” mail is now sent as email. Most of what we need

to communicate will be included in our "e-bulletin”which is sent regularly to the entire membership.

YYoouu’’vvee GGoott MMaaiill((aanndd iitt’’ss nnoott ssppaamm!!!!))

In order for this to work, we need your assistance:

1. Make sure we have your current email address on file (send inquiries or updates to membership@nassaubar.org).

2. Add to your address book.

3. If you do not want to receive our informative emails, just let us know (send opt-out to webmaster@nassaubar.org). Please DO NOT MARK OUR EMAIL AS SPAM. When you do, it impacts the entire membership. Don’t click the spam button!

4. If you are not receiving our emails, and we have your proper email address on file, you need to contact your Internet Service Provider (aol, yahoo, hotmail, optonline etc.) and request that they unblock our domain name (nassaubar.org).

5. If you have any comments, suggestions or questions, we are happy to hear from you!

news@nassaubar.org

However, there are other emails you may receive, including:• committee notices

• letters from the President and/or Executive Director

• notices about upcoming events and/or seminars

• communications from individual NCBA staff members

Nassau Lawyer n April 2012 n 9

The deposition in a negligence case isnow more important than ever. Casescan be won or lost based on the deposi-tions. Prevailing on or defeating a sum-mary judgment motion may also dependon the questions asked and the answersgiven at a deposition. Important factsabout the happening of the accident,prior experiences, conditions, back-ground information or pre-existing dam-ages or disabilities, must be explored atthe deposition as this may be the onlyopportunity to investigate these aspectsof a case. Potential liability or damagesmay be enhanced or diminished depend-ing on the questions posed and answersprovided at the deposition. To miss thisopportunity, or to fail to properly utilizethis opportunity, may diminishthe recovery of a plaintiff orincrease the exposure of one ormore defendants. Accordingly,the deposition needs to becomean “inquisition.” At the sametime, this does not mean itneeds to be argumentative oruncivil.This checklist should be uti-

lized when you prepare a clientto testify or question a witnessin a negligence case. Thisinformation will also help youto properly evaluate a case andassist in preparing for trial.The responses will also be of help in set-tlement negotiations.

A. Place of Accident1. Date and time2. Location: nearest intersection and

landmark(s)3. Weather conditions4. Lighting conditions5. Traffic Control devices or signs6. Obstructions to the view of any of

the motorists

B. Description of Accident1. Direction, position and speed of

each vehicle before accident2. First awareness of other vehicles

and traffic controls3. Width of lane and markings on

roadway4. Steps taken to avoid accident5. Speed of each vehicle at contact

between vehicles6. Movement of occupants within vehicle7. Use and restraining ability of seat-

belts and deployment of airbags8. Movement and position of vehicles

after impact9. Damage to each vehicle and other

property10. Road angle and slope11. Use of GPS, cell phones or other

devices or distractions12. Pets in vehicles

C. Others at Scene1. Police Department at scene2. Friends or relatives who came to

scene3. Other emergency personnel4. Other witnesses to accident5. Conversations after accident

D. Identification of Vehicles1. Owner and Operator of each vehicle2. Insurance Company and policy lim-

its, if known3. Leasing Company and carrier (if

leased)4. License plate and state5. Drivers License type and endorse-

ments

E. Information About the Plaintiff(s)1. Name and date of birth2. Marital Status (name of spouse) or

parents3. Address and home and office tele-

phone numbers4. Telephone number and address of

nearest relative5. Occupation and employer

or school and field of study6. Time confined to bed or

home7. Time out of work or out of

school8. Period of limited activi-

ties9. Date(s) of hospital treat-

ment or admission10. Treating doctors and

specialists11. Injuries at time of acci-

dent12. Permanent Injuries

13. Future prognosis and medicaltreatment14. Prior accidents, injuries or disabil-

ity15. How client was referred to health

providers16. Under disability or medication at

time of accident

F. If Plaintiff Involved in PriorAccident, Ask About

1. Happening of accident2. Emergency room treatment3. Follow-up care4. X-rays or MRI films5. Time out of work6. Claims, lawsuits or settlements7. Prior depositions or attorneys8. Prior no-fault benefits9. Limitation of activities after earlier

accident.

G. Slip and Fall Cases1. Description of conditions at time of

accident2. Size and location of defects3. Distractions preventing view of

defects4. Prior accidents or complaints5. Notice witnesses6. Photographs of defects

Kenneth J. Landau is a partner in the Mineolalaw firm of Shayne, Dachs, Corker, Sauer &Dachs, LLP and concentrating in the areas ofnegligence, medical malpractice and insur-ance law on behalf of plaintiffs. He also hoststhe weekly radio show, “Law You ShouldKnow,” broadcast every Monday at 4:00 p.m.,Tuesday at 12:00 noon or Sunday at 7:00 a.m.on WHPC 90.3 F.M. or on line at www.ncc.edu/whpc

The Negligence Corner

The Inquisition Deposition

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Analysis1. The Honorable Jose A.CabranesIn his Opinion, Judge Cabraneswas persuaded by the decisions andreasoning of the Sixth and SeventhCircuits, which have held that deci-sions on Rule 11 motions are disposi-tive of a claim and are therefore notproperly resolved by an order of amagistrate judge.12

In reaching his conclusion, JudgeCabranes reasoned first that a Rule 11motion for sanctions, which gives riseto proceedings separate and distinctfrom the underlying actions andinvolves parties distinct from those inthe underlying action, is the function-al equivalent of an independentclaim.13 As such, when a court deter-mines whether a monetary award isappropriate, the “claim” has been dis-posed of and nothing but the entry of ajudgment, or its functional equivalent,remains.14 Second, Judge Cabranesreasoned that a narrow statutoryexception – allowing magistratejudges to summarily punish acts ofcriminal conduct that occur in themagistrate’s presence – to the generalprinciple that magistrate judges maynot dispose of claims when acting byreferral already exists and there wasno basis to expand this exception byjudicial action.15Judge Cabranes concluded accord-ingly that a magistrate judge isauthorized by law only to recommend,not impose, sanctions absent the con-sent of the parties.16

2. The Honorable Pierre LevalJudge Leval found that the Actempowers magistrate judges to hearand determine a wide range of mat-ters, save for those matters expresslyexcepted within the Act.17 Moreover,Judge Leval relied upon the amend-ments to the Act made by Congress in2000, which further vested magistratejudges with a range of contempt pow-ers.18 Judge Leval viewed this asindicative of the fact that Congressintended to allow magistrate judges

the power to impose monetary sanc-tions and concluded that all indica-tions “very strongly support” the con-clusion that the Act empowers magis-trate judges to impose sanctions,except in the form of sanctions thatdispose of a claim or defense.19While Judge Leval agreed withJudge Cabranes that sanctions thatare case dispositive require de novoreview, he stated that a Rule 11 sanc-tion does not dismiss a suit or preventa claim or defense from beingadvanced.20 As such, Judge Leval con-cluded that a magistrate judge isauthorized by law to impose by way ofOrder, Rule 11 sanctions without theconsent of the parties.213. The Honorable Chief JudgeDennis JacobsChief Judge Jacobs declined to jointhe opinion of either Judge Cabranesor Judge Leval and instead stated thatthe issue – whether magistrate judgeshave the authority to order Rule 11sanctions themselves, or only to makea recommendation of Rule 11 sanc-tions to the district court – is an issuethat divides the district courts withinthe Second Circuit and the CircuitCourts themselves.22 Chief JudgeJacobs went on to state that he woulddefer the issue to Congress.23

SignificanceIt follows from the Second Circuit’sdecision in Kiobel that there is nobinding precedent in the SecondCircuit as to whether a MagistrateJudge has the power under the Act toimpose sanctions. Consequently, untilsuch time as Congress or the UnitedStates Supreme Court addresses thisissue or resolves the Act’s inherentambiguity, the analysis of JudgesCabranes and Leval – albeit dicta –provides a roadmap for practitioners,and judges alike, on each side of thisissue.

Kathryn C. Cole, a former clerk to theHonorable Richard C. Wesley of the SecondCircuit Court of Appeals, is a commercial lit-igation associate at Farrell Fritz, P.C.

1. 28 U.S.C. § 636(b)(1)(A) (2002). 2. See, e.g., Alpern v. Lieb, 1993 U.S. Dist.LEXIS 3229 (N.D. Ill. 1993); Maisonville v.F2 Am., Inc., 902 F.2d 746 (9th Cir. 1990);DiPonio Construction Co., Inc., v. Int’l Unionof Bricklayers, 2010 U.S. Dist. LEXIS 62047,* (E.D. Mich. June 23, 2010); McGuffin v.Baumhaft, 2010 U.S. Dist. LEXIS 59497 (E.D.Mich. June 16, 2010).3. Kiobel v. Millson et al., 592 F.3d 78 (2d Cir.2010).4. See Kiobel v. Royal Dutch Petroleum Co., 456F. Supp. 2d 457 (S.D.N.Y. 2006).5. See Kiobel v. Royal Dutch Petroleum Co., 2004

U.S. Dist. LEXIS 28812 *29, 43 (S.D.N.Y. 2004).6. Kiobel, 592 F.3d at 80.7. Id.8. Kiobel, 2004 U.S. Dist. LEXIS 28812, at 32-34.9. Id. at *34. 10. See Id. at *37. 11. Kiobel, 592 F.3d 78.12. Id. at 85; see also Bennett v. General CasterService of N. Gordon Co., 976 F.2d 995, 998(6th Cir. 1992) (“nothing in the Act express-ly vests magistrate judges with jurisdictionto enter orders imposing Rule 11 sanc-tions”); Alpern v. Lieb, 38 F.3d 933, 936 (7thCir. 1994) (“the power to award sanctions,like the power to award damages, belongs inthe hands of the district judge.”)13. Kiobel, 592 F.3d at 86-87.14. Id. at 87.

15. See 28 U.S.C. § 636(e)(2); Kiobel, 592 F.3d at87-88.16. Kiobel, 592 F.3d at 89.17. Id. at 91 (the Act “broadly empowers magis-trate judges to ‘hear and determine’ anypretrial matter designated to them by thedistrict court, with the exception of a speci-fied list of matters. As for the mattersfalling within this excepted list, the extentof the magistrate judge’s powers is to takeevidence and submit recommendations tothe district court…[and] such additionalduties as are not inconsistent with theConstitution and laws of the United States”)(citing 28 U.S.C. § 636[b][1][B]). 18. See Federal Courts Improvement Act of2000, Pub. L. 106-518 § 202 (2000) (address-ing “Magistrate Judge ContemptAuthority”).19. Kiobel, 592 F.3d at 98. 20. Id. at 97-98; see also Lawrence v. WilderRichman Sec. Corp., 467 F.Supp. 2d 228,232-33 (D. Conn. 2006); Laser Med. ResearchFound. v. Aerofloat Soviet Airlines, 1994 U.S.Dist. LEXIS 15210 *2 (S.D.N.Y. 1994);Magee v. Paul Revere Life Ins. Co., 178F.R.D. 33, 37 (E.D.N.Y. 1998). 21. See also Maisonville v. F2 Am. Inc., 902 F.2d747-48 (9th Cir. 1990). 22. Kiobel, 592 F.3d at 106-07. 23. Id. (“I respectfully suggest that this knotneeds to be untied by Congress or by theSupreme Court.”).

©2010 Long Island Business News, all rights reserved

Farrell Fritz, P.C.1320 RXR Plaza

Uniondale, NY 11556

In our federal court system, magis-

trate judges play a critical role in the

administration of justice. The Federal

Magistrate Judge Act (“Act”), 28 U.S.C.

§ 636, authorizes magistrate judges to:

[H]ear and determine any pretrial

matter pending before the court,

except a motion for injunctive relief,

for judgment on the plead-

ings, for summary judg-

ment, to dismiss or quash

an indictment or informa-

tion made by the defendant,

to suppress evidence in a

criminal case, to dismiss or

to permit maintenance of a

class action, to dismiss for

failure to state a claim upon

which relief can be granted,

and to involuntarily dismiss

an action.1

On occasion, lapses during

the pre-trial phase have led

to the imposition of sanctions by mag-

istrate judges under Federal Rule of

Civil Procedure 11.2

Recently, the United States Court

of Appeals for the Second Circuit pub-

lished a decision that addressed,

among other things, whether magis-

trate judges have the authority to

issue Rule 11 sanctions themselves, or,

instead, are authorized only to make a

recommendation to the District Court

Judge for the imposition of Rule 11

sanctions.3 This decision is an impor-

tant one for federal court practition-

ers, as it addresses an issue that

divides both the federal courts within

the Second Circuit as well as the

Circuit Courts themselves.

Factual & Procedural Background

A putative class action was brought

in the Southern District of New York

pursuant to the Alien Tort Statute, 28

U.S.C. § 1350, arising out of defen-

dants involvement in oil exploration

and development in Nigeria.4 Chief

Judge Kimba Wood referred plaintiffs’

Rule 23(c) motion for class certifica-

tion to Magistrate Judge Henry B.

Pitman for a report and recommenda-

tion. On March 31, 2004, Magistrate

Judge Pitman recommended that the

District Court deny plaintiffs’

motion.5

Plaintiffs objected to

Magistrate Pitman’s Report

and Recommendation, and

defendants filed an

Opposition to those objec-

tions. In the Opposition,

defendants’ attorneys stated:

(1) “Now we have learned

that seven of [plaintiffs’]

identified witnesses are

being paid for their testimo-

ny;” (2) “[T]here can be no

doubt that the witnesses are

giving testimony that [plain-

tiffs’] counsel knows to be

false;” and (3) “[W]e know that

between February 29, 2004 and April

2, 2004, [plaintiffs’ counsel] wired

$15,195 to the Benin Republic for the

benefit of the witnesses.”6 On the

basis of these statements, plaintiffs

moved for an order imposing Rule 11

sanctions on the ground that these

statements had no evidentiary sup-

port. Defendants’ attorneys opposed

the motion, arguing that that the

statements were supported by record

evidence.7

In an “Opinion and Order” dated

September 29, 2006, Magistrate

Judge Pitman denied plaintiffs’

motion with respect to the first state-

ment, but granted the motion with

respect to defendant’s second and

third statements.8 For the second

statement, Magistrate Judge Pitman

imposed a $5,000 sanction on each

attorney who signed the filing.

Magistrate Pitman declined to

impose sanctions for making the

third statement because “[a]lthough

defendants’ counsel overstated the

amount of money sent to benefit the

[w]itnesses, the amount of the over-

statement was small…and did not

materially change the nature of the

statement.”9 Magistrate Judge Pitman

did, however, award plaintiffs one-

third of their attorneys’ fees arising

from their partially successful Rule

11 motion.10

Defendants’ attorneys appealed

Magistrate Judge Pitman’s “Opinion

and Order” to the District Court.

Applying a deferential “clearly erro-

neous or contrary to law” standard of

review under 28 U.S.C. § 636(b)(1)(A),

Chief Judge Wood affirmed Magistrate

Judge Pitman’s Order.

Defendants’ attorneys thereafter

appealed Chief Judge Woods’ Order

on two grounds: (1) Magistrate Judge

Pitman was not authorized to issue a

dispositive decision, such as an Order

imposing Rule 11 sanctions, absent

the consent of the parties; and (2) the

imposition of Rule 11 sanctions on

the basis of the statements identified

by plaintiffs could not be sustained

because of the record evidence sup-

porting those statements.11 The

Second Circuit reversed Chief Judge

Wood’s Order solely upon the second

ground. The Panel, however, chose

not to ignore the now-mooted first

ground for appeal but instead pub-

lished their conflicting views. The

Second Circuit’s analysis of the moot-

ed issue – whether magistrate judges,

when acting pursuant to a district

court’s reference, are authorized to

issue orders, or only make recommen-

dations to district judges on whether

Rule 11 sanctions should be imposed

– provides persuasive guidance for

practitioners on each side of this

issue until such time as Congress or

the United States Supreme Court

addresses the matter.

S E P T E M B E R 2 0 1 0 I V O L . 6 0 I N O . 1 I WW WW WW .. NN AA SS SS AA UU BB AA RR .. OO RR GG

The authority of Magistrate Judges to impose Rule 11

Sanctions after Kiobel v. Royal Dutch Petroleum Co.

Kathryn C. Cole

J U LY / A U G U S T 2 0 1 0 I V O L . 5 9 I N O . 1 1 I WW WW WW .. NN AA SS SS AA UU BB AA RR .. OO RR GG

Debt should never be the sole reason behind treatment of

an employee or applicant The ongoing economic crisis has caused a

significant increase in the number of indi-

viduals who are filing for bankruptcy on

Long Island, throughout New York, and

across the nation. More and more people, in

a final effort to escape crushing debt, have

sought to obtain a financial “fresh start” by

availing themselves of the protections of the

Bankruptcy Code to stop creditors from

attaching their assets or foreclosing on their

property. Since individuals who seek bankruptcy

protection are already financially burdened,

the Bankruptcy Code bars employers from

taking certain actions against bankrupt employees

and job applicants which may be detrimental to their

“fresh start.”In particular, Section 525 of the

Bankruptcy Code, 11 U.S.C. § 525, protects

persons who have sought bankruptcy protec-

tion from being terminated by their employ-

er or otherwise discriminated against in

respect to their employment. An employer

may not terminate the employment of, or

discriminate with respect to employment

against, an individual solely because that

individual: (1) is or has been a debtor; (2) has

been insolvent; or (3) has not paid a debt

that is dischargeable in bankruptcy.

Employers must be cognizant that they do not vio-

late Section 525 as to employees and, perhaps, job

applicants who have filed for bankruptcy protection

or who indicate that they intend to file.

Employees Who Have Declared Bankruptcy

Section 525 is implicated in a variety of circum-

stances. Suppose, for instance, that the

President of a company learns that an

accountant employed by the company has

filed for bankruptcy protection. The

President may experience some trepidation

in allowing that individual to have contin-

ued access to corporate records and funds.

However, under Section 525 the company

would be precluded from demoting or termi-

nating the debtor solely on account of his or

her bankruptcy. For example, in In re Hicks 65 B.R. 980

(Bankr. W.D.Ark. 1986), the court relied on

Section 525 in holding that a bank discrimi-

nated against a bank teller by transferring her to a

position having no customer contact after the teller

filed for bankruptcy under Chapter 7. The

bank attempted to justify the transfer of the

bankrupt teller into a bookkeeper position

by arguing that the reassignment did not

involve any decrease in compensation and

that it was made: (1) to prevent the “embar-

rassment” of the teller; (2) to prevent any

harm to customer relations and public confi-

dence; and (3) because the bank could not

bond a teller with financial difficulties. The

court ruled in favor of the teller, and found

that the discrimination prohibition of

Section 525 is violated “when the

Bankruptcy law vs. employment discrimination

Banking/Bankruptcy Law Focus

Stuart I.Gordon

Matthew V.Spero

Nassau Lawyer n April 2012 n 11

“The Annual Moot Court Compe -tition is important for law studentsbecause it imparts knowledge andexpertise they cannot get from a text-book,” noted Moot Court Chair MiliMakhijani, who also serves on theNAL Advisory Board. “At the sametime, it exposes the competitors tothe Bar Association. Just as we’vemade lifelong friends in law school,Moot Court demonstrates how thisBar Association is a valuable nextstep in our legal career.”St. John’s, was also in the running

for recognition. Kristina Duffy andShlomo Lazar of a a second St. John’steam tied for Best Brief with CocoJoly, Eugene Chen and NicholasEasterday from CUNY Law School.This was the first time the Best Briefaward was tied in the history of thecompetition.

TOURO ...Continued From Page 1

JUDGES

Gale BergLauren BristolRalph CatalanoDaniel DillonHon. Andrew EngelDom GallardoDavid GoodsellHon. Steven JaegerHoward KassHon. Susan KluewerDonna-Marie KorthLorraine KorthSteven Leventhal

Joseph LorintzKent MostonHon. Jerome MurphyRobert NigroHon. William O’BrienHon. Sondra PardesChristine QuigleyMarian RiceSam RieffBruce RobinsDan RussoHon. Robert SchmidtHon. Helen VoutsinasHon. Ira Warshawsky

BRIEF SCORERS

Richard BarbutoChristopher ChimeriBruce RobinsMichelle RussoRachel Schulman

TIMEKEEPERS

Erika AmbergerJeff BloomBrianna DenbyVictoria Sharp-Kaufman

The Volunteers Who Make It HappenEach year, the Hon. Elaine Jackson Stack Moot Court Competition, coordinated by Nassau Academy of Law staff

Barbara Kraut and Patti Anderson, involves dozens of volunteer judges, brief scorers and timekeepers during thetwo-day event.

Winners in the Court: Hon. Joseph Bianco, NCBA President Susan Katz Richman, Hon. Arthur Diamond, Touro students Keri Mahoney, Daniel Fischer, MichaelNolan, William Melofchik and Steven Pollack, Hon. Elaine Jackson Stack, and Hon. Vito DeStefano. (Photo by Hector Herrera)

TThhee PPrroocceessssiinngg ooff MMeeddiiccaall MMaallpprraaccttiiccee CCaasseess iinn NNaassssaauu CCoouunnttyyaa ssppeecciiaall pprreesseennttaattiioonn && ooppeenn ddiissccuussssiioonn

Monday, April 16, 2012 • 12:30 - 2 p.m.at the Nassau County Bar Association, 15th & West Streets, Mineola

Featuring:

Hon. Anthony Marano

Administrative Judge, Nassau County

Special Guest Speaker:

Hon. Ann Pfau,

Statewide Coordinator,

Medical Malpractice Matters

Judge

Moderator:

W. Russell Corker, Esq.

Shayne Dachs Corker

Sauer & Dach, LLP, Mineola

Program Coordinators:

James M. Furey, Esq.

Chair, NCBA Medical-Legal Committee

Furey, Furey, Leverage, Manzione,

William & Darlington, PC, Hempstead

Alan W. Clarke, Esq.

Law Firm of Alan W. Clark &

Associates LLC, Levittown

• Recent and Important System

Changes?

• A Plan for Nassau?

• Dedicated Parts?

• Early Settlement?

• Expedited Discovery & Conferences?1.0 NYMCLE credit in areas of

professional practice

Medical Malpractice Cases

Name

Address

Phone

Method of Payment

1 Visa 1 Master Card

1 AMEX 1 check made

payable to NAL

Fee:

1 Member - $38

1 Non-Member - $55

1 Domus Scholar Circle

(lunch $18)

Credit Card #

Security Code

Exp. Date

Signature

CCLLEE pprroovviiddeedd bbyy NNAALLCLE provided by NAL

A D V E R T I S E I N T H E

Call (631)

737-1700

advertising@libn.com

NEW! At the NCBA Tech Center

NASSAU ACADEMY OF LAW ...Because Law School was

j

ETHICAL ISSUES THAT

MAY ARISE WHEN USING AN EXPERT

WITNESS Wednesday, May 9

12:30 - 2 p.m. An overview of how to prevent ethical issues with your expert, through advance meetings and conflict checks, including:

a definition of an expert witness sample questions when considering a consultant to act as an expert witness when those discussions should be held the basics of conflict checks lawyer responsibilities as it relates to the conduct of non-lawyers

GUEST SPEAKERS Michael S. Brown, CPA, CFE

Director, Marcum LLP, Melville

Danielle Clarity, Esq. Marcum LLP, Melville

MODERATOR

Deborah S. Barcham, Esq.

Contini, LLP, Mineola

1.0 Credits in Ethics & Professionalism

PART I 5-8 P DEPOSITIONS Russell Corker, Esq., M NEGOTIATING Elayne E. Greenberg, Esq., Director, Hugh L. Carey Center for Dispute Resolution

EVIDENCE Hon. Arthur M. Diamond, J PART II OPENINGS Christopher T. McGrath, Esq., S McGrath & Cannavo, PC, Garden City PREPARING TRIAL LA Russell Corker, Esq., M

CROSS-E Paul S. Devine, Esq., G

3.0 Credits in Professional Practice or Skills Each Evening

ACCOUNTING 101 FOR LAWYERS Monday, April 30

5:30 - 730 p.m. An understanding of the basics of accounting is imperative to lawyers engaged in virtually every type of practice. In this presentation, a panel of legal and financial professionals will educate attorneys concerning fundamental accounting principles. Major topics include reading financial statements, borrowing base certificates and other financial records, understating the differences between GAAP accounting as compared to asset valuation, and a discussion of the common tests of solvency. If your practice implicates issues of solvency or valuation, such as in commercial transactions and bankruptcy, this is a must attend course!

SPEAKERS TBA

CO-MODERATORS David A. Blansky, Esq., Chair,

NCBA Bankruptcy Law Committee; Lamonica Herbst & Maniscalco,

LLP, Wantagh

Alan J. Schwartz, Esq., Chair, NCBA Attorney Accounts Committee Law Offices of Alan J. Schwartz,

Garden City

2.0 Credits Professional Practice

HOUR

SECOND ANNUAL

WHAT IS THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION? Andrij V.R. Szul, Esq., Bellmore INITIAL CLIENT CONTACT WITH PROSPECTIVE ADOPTIVE PARENTS James M. Greenberg Esq., Roslyn Harbor IMMIGRATION PROCEDURES FOR HAGUE VS. NON-HAGUE COUNTRIES Bruce Paulin, Acting Assistant Director, National Benefits Center , U.S. Citizenship & Immigration Services STATE DEPARTMENT PROCEDURES FOR HAGUE AND NON-HAGUE COUNTRIES Ellen Eiseman, Adoption Officer, United States Department of State

OBJECTION!

Tuesday, April 17 12:30 - 2 p.m.

Lunch & Discussion

WHEN, HOW and IF trial objections are made. Examples and demonstrations of the proper procedures will be the focus of this program.

GUEST SPEAKERS Hon. Elaine Jackson Stack, JHO Nassau County Family Court

Hon. Andrew M. Engel

Judge, District Court

1.0 Credit in professional practice

HOUR

Meet High

Level Officials from Foreign Consulates

Greet Our Special Guests!

H L

HOUR

Bankruptcy Law Research on WestlawNext

Tuesday, April 24 9:30 - 10:30 a.m. Learn to retrieve recent cases,

motions and briefs of interest. Browse the Table of Contents

for the USCA to find fraudulent transfers.

Use KeyCite to verify the case is good law and expand research with cases, trial court documents and secondary sources.

Stay current with bankruptcy

Bankruptcy Newsletter and Bankruptcy Law Letter.

Search practice guides and treatises including Norton on Bankruptcy, Bankruptcy Service

Free! 1 Credit in Skills

PET CUSTODY ISSUES IN

DIVORCES, NON-MARITAL BREAK-UPS AND LOST & FOUND

Thursday, April 19 5:30 - 8:30 p.m.

Who gets Rover, Kitty or other family pets when spouses divorce, roommates go their separate ways and non-marital relationships end? This program will explore how courts have handled this very emotional issue, which can become far more complicated than the distribution of inanimate property. Also to be explored are the rights of individuals who find animals, those who lose their pets, adoption agencies and animal rescue groups and the new adopter.

FACULTY Elinor Molbegott, Esq., Chair, NCBA Animal Law Committee; Law Office of

Elinor Molbegott, East Williston

Lee Rosenberg, Esq., Chair, NCBA Matrimonial Law Committee Saltzman Chetkof & Rosenberg LLP, Garden

City

Michelle R. Olsen, Esq., Law Offices of Anthony A. Capetola, Williston

Park

MODERATOR Elizabeth Stein, Esq., Law Office of

Elizabeth Stein, New Hyde Park

3.0 Credits: 2.5 Professional Practice; .5 Ethics

SURROGATE S COURT CONTESTED

ACCOUNTING PROCEEDINGS

From Soup to Nuts

Estates & Trusts Committee

Monday, April 23 4:30 - 7:30 p.m.

TOPICS Compelling The Fiduciary To Account The Petition And Account SCPA 2211 Discovery Objections To The Account The Accounting Trial And Pre-Trial Considerations Ethical Considerations

SPEAKERS John G. Farinacci, Esq.

Co-Estates & Trusts Committee

Ruskin Moscou Faltischek, P.C., Uniondale

Katherine J. Richards, Esq. Co-

Estates & Trusts Committee Richards & Zuvich, P.C.,

Garden City

Christopher P. Ronan, Esq. McCoyd Parkas & Ronan LLP,

Garden City

Frank T. Santoro, Esq.Farrell Fritz, P.C., Uniondale

MODERATOR

John G. Farinacci, Esq. Uniondale

3.0 Credits: 2.5 Professional Practice; .5 Ethics

NOTE TIME!

For Lawyers

Unleash the Power of LinkedIn

Wednesday, April 18, 8:30 - 10a.m. Tuesday, May 22, 8:30 10a.m.

Learn what LinkedIn is and the ethical implications of social media. This course will demonstrate how to:

setup LinkedIn maximize your profile use connections to foster business relationships.

Whether or not you already have a LinkedIn account, you will walk away with the knowledge to grow your practice!

SPEAKERS Michael Glasser

Glasser Tech LLC, Hicksville Allison C. Shields, Esq.

LegalEase Consulting, Mt. Sinai

1.5 Credits: 1 in Skills or Law Practice Management; .5 Ethics

Please call to register in advance or classes may be cancelled. 516-747-4464

EVIDENCE PART 6

Still Only $45!

N ORDER FORM T Circle your selections in the correct columns and total amount due.

Seminar Reservation Form

D

A 1

2 3 3 Civil Litigation Essentials: PART I & II - 6.0 6

M 1.0 1 1

A

M

N

B 1

C 2

I 1

E

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E 1.0 1

G

2 B 1 D D 2 E 1 H 1 H 2 H 3

1

1 1 1

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12 n Arpil 2012 n Nassau Lawyer

A

ause Law School was

just the beginning

G M

A 2 EVENING PROGRAM!

CIVIL LITIGATION ESSENTIALS

Important Skills and Techniques P WEDNESDAY, MAY 2, 5-8 P.M.

TIONS Corker, Esq., Mineola

ATING A SETTLEMENT

E. Greenberg, Esq., D , H Carey Center for Dispute R on

CE FOR TRIAL LAWYERS rthur M. Diamond, Justice, NYS Supreme Court

I THURSDAY, MAY 3, 5-8 P.M.

GS AND SUMMATION pher T. McGrath, Esq., Sullivan Papain Block

M h & Cannavo, PC, Garden City

NG A CASE FOR TRIAL & TECHNOLOGY FOR AWYERS

Corker, Esq., Mineola

XAMINATION OF AN EXPERT AND LAY WITNESS Devine, Esq., Goldberg Segalla, LLP, Garden City

MODERATOR

Russell Corker, Esq. Shayne Dachs Corker & Dachs, LLP, Mineola

edits in Professional Practice or Skills Each Evening

Attend Both Nights

and Save!

L FORUM ON INTERNATIONAL LAW

IMPACT OF THE HAGUE CONVENTION ON

INTERCOUNTRY ADOPTION

A

E U

L

M h

m F s

S G

THE IMPACT OF HAGUE REGULATIONS ON THE CHILD Thomas D. Filipo, President & CEO, Joint

Co-Moderators: Howard R. Brill, Esq. &

Linda Nanos, Esq.

With the BOLD Program (Bridge Over Language Divides) of the

Community Relations & Public Education Committee, and Immigration and Adoption Committees

1.0 credit in Professional Practice

Thursday, May 10, 2012 12:30 - 2 p.m. Lunch & Discussion

FREE CLE For All NCBA Members!

N B L

E

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Nassau Academy of Law ORDER FORM TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501 FAX completed form with credit card information to 516-747-4147 www.nassaubar.org >MCLE>Calendar, Reservations

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Domus Scholar Circle 18B

April 17 Objection! - EVIDENCE 6 1.0 1.0 $38 $55 $18 April 19 Pet Custody Issues in Divorces, Non- 2.5 0.5 3.0 $100 $135 $0 April 23 Surrogate's Court Contested Accounting Proceedings 2.5 0.5 3.0 $100 $135 $0 April 30 Accounting 101 for Lawyers 2.0 2.0 $70 $110 $0 May 2 Civil Litigation Essentials: PART I 3.0 3.0 $100 $135 $0 May 3 Civil Litigation Essentials: PART II 3.0 3.0 $100 $135 $0 May 2&3 SAVE! Civil Litigation Essentials: PART I & II - 6.0 6.0 $180 $250 $0 May 9 Ethical Issues That May Arise When Using Expert Witnesses 1.0 1.0 $38 $55 $18 May 10 Impact of the Hague Convention on Intercountry Adoption 1.0 1.0 $18 $55 $18 SEMINAR RESERVATION TOTAL:

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CD/DVD Member

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Member Seminar Code Bankruptcy Chapter 7 & 13 - Role of the Trustee 1.0 1.0 35 /50 50 /70 27&130121

Criminal Law In The Digital Age! Criminal Issues in Matrimonial Cases 2.0 2.0 70/85 100/120 2CRIMAT0312 Insights Into the Trial of a Criminal Case 1.5 0.5 2.0 70/85 100/120 2INSIGHTS0122 The "New" Adolescent Diversion Part (ADP) 1.0 1.0 35 /50 50 /70 DH030612

Estates & Trusts, Elder Law

Estate Law: What They Didn't Tell You in Law School 1.0 0.5 1.5 70/85 100/120 2ESTATE0122 Surrogate's Court Contested Accounting Proceedings 2.5 0.5 3.0 105/120 140/160 2CNACT0423 Your First Fair Hearing or Article 78 Proceeding 1.0 1.0 35 /50 50 /70 DH020812

Ethics Ethics: Identifying and Resolving Conflicts of Interest 1.0 1.0 35 /50 50 /70 12FLIX0121

General

Accounting 101 for Lawyers 2.0 2.0 70/85 100/120 2ACCT0403 Business Records - EVIDENCE 4 1.0 1.0 35 /50 50 /70 DH011112 Demystifying Appeals: Improving Your Appellate Practice 2.5 0.5 3.0 105/120 140/160 2APLS0228 Drafting Partnership & LLC Agreements 2.0 2.0 70/85 100/120 2PARTNER0402 Electronic Discovery 1.0 1.0 35 /50 50 /70 DH011712 Hearsay: Unraveling the Mystique - EVIDENCE 5 1.0 1.0 35 /50 50 /70 DH021612 How to Draft, Evaluate and Negotiate Contracts 2.0 2.0 70/85 100/120 12CONT0121 Human Trafficking and Exploitation on Long Island 3.0 3.0 70/85 70/85 2HUTRAF0229 Navigating the Specialty Courts 1.5 1.5 70/85 100/120 2NAVIGATE0122 NY Notary Law: Acknowledging What Attorneys Must Know 0.5 0.5 1.0 35 /50 50 /70 2NOTARY0122 Objection! - EVIDENCE 6 1.0 1.0 35 /50 50 /70 DH041712 Pet Custody Issues in Divorces, Non- 2.5 0.5 3.0 105/120 140/160 2PET0419 Solo Practitioners 1.0 1.0 35 /50 50 /70 DH030812 Time Management and Productivity 1.0 1.0 35 /50 50 /70 2TIME0121 The "Write" Stuff: Tips for Effective Writing in the Real World 1.0 1.0 35 /50 50 /70 2WRITE0122 Unwanted & Unwelcome! Sexual Harassment in the Workplace 1.0 1.0 35 /50 50 /70 DH031612

Health Law Overviews of Health Law and Insurance Law 1.0 1.0 35 /50 50 /70 2HLTH0121 Immigration Law Criminal Defense in Today's Immigration Conundrum 2.5 0.5 3.0 105/120 140/160 1IMM1129 Intellectual Prop. Patent Law Upheaval? America Invents Act 2.0 2.0 70/85 100/120 2PATLAW0130

Litigation Civil Litigation Essentials 6.0 6.0 210/300 240/320 2CVLIT0502/03 Ethical Issues That May Arise When Using Expert Witnesses 1.0 1.0 35 /50 50 /70 DH050912

Matrimonial Law, Family Law

In The Digital Age! Criminal Issues in Matrimonial Cases 2.0 2.0 70/85 100/120 2CRIMAT0312 A Matrimonial Primer 1.0 0.5 1.5 70/85 100/120 12MAT0121 Proof Positive: A Family Court Law & Procedure Program 2.5 0.5 3.0 105/120 140/160 2PROOF0109 Representing Your Client in JD Proceedings And More! 3.0 3.0 105/120 140/160 2JD0329 Understanding Tax Returns, Financial Statements for Mat Attys 1.5 0.5 2.0 70/85 100/120 2MATAX0206

Real Estate Commercial Leasing: A Primer and Pitfalls 2.0 2.0 70/85 100/120 2COMLES0201 Real Estate Update 1.0 0.5 1.5 70/85 100/120 2REU0121 Successful Closings In A Distress Real Estate Market 2.0 2.0 70/85 100/120 2REAL0314

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Nassau Lawyer n April 2012 n 13

14 n April 2012 n Nassau Lawyer

SECOND OPINION EVALUATOR FOR QDROs

Quali&ed Domestic Relations Order

Government & ERISA Pension Plans

Consultant to the Professionals

Employee Bene�ts Consultants & Administrators� 401(k) & Pro.t Sharing Retirement Plans � Flex Plans (Health & DCARE FSA’s)� De.ned Bene.t Retirement Plans � Health Reimbursement Arrangements � Cash Balance Retirement Plans � Quali.ed Transportation Plans� ERISA 403(b) Plans and IRC 457 Plans � COBRA Administration � IRS Audit Support � Welfare Bene.t Plan Form 5500� Compliance Resolution Support � Health Care Reform (PPACA)

25 Years Experience

Contact Robert or Leslie

114 Old Country Road, Suite 520Mineola, NY 11501

Phone: 516-747-5210 � Fax: 516-747-5914

Website: independentpension.com Email: indpndnt@indpndnt.com

Harold M. SomerNassau Suffolk Law Services is pleased to honor

Harold M. Somer, an attorney who has been volun-teering his time through the Volunteer LawyersProject (VLP) for many years to help needy NassauCounty residents with bankruptcies. In December1991, Mr. Somer was one of the first attorneys toreceive the honor of Pro Bono Attorney of the Month,and though he has been previously recognized for hisservice, after 20 years of dedication the time has cometo praise his efforts once again!Mr. Somer has met hundreds of prospective pro

bono clients over the years who attend the VLP’s freeBankruptcy Clinic held at Domus, and co-sponsoredby Nassau Suffolk Law Services and the NassauCounty Bar Association. He serves alongside severalother generous pro bono attorneys to interview clients,educate them about their options, and then vets thecases for eventual referral to the panel of pro bonobankruptcy attorneys, all the while conscientiouslyoverseeing the workings of the Clinic. In addition, heaccepts cases for pro bono representation in bank-ruptcy proceedings. Many participants see bankrupt-cy as the equivalent of committing financial, social orcareer suicide and they fear losing their homes, theircars and their livelihoods. The bankruptcy will even-tually give them the opportunity to start over, relievedof collection calls and huge debts caused by illness,loss of jobs, declining business, and use of credit cards. When asked why he enjoys working with the

Volunteer Lawyers Project Mr. Somer explains, “Theclients are grateful and most are nervous because theyhave been receiving threatening letters and phonecalls due to credit card or medical debt, and do nothave the money to pay back. I like the relief thatclients get, that they have the opportunity to speakwith an attorney who can immediately address theirconcerns.” His most gratifying VLP case involved aclient with cerebral palsy who was confined to awheelchair with limited ability to communicate. Dueto his severe disabilities he was unable to do some ofthe things required by the bankruptcy code. Mr.Somer was able to get these requirements waived sothat the client did not have to appear in court for themeeting of the creditors, take the credit counselingand financial management courses, or pay the petitionfiling fee. He says, “This client has a special place inmy heart” and they continue to exchange e-mails. Harold Somer graduated with the first class of

Touro College Jacob D. Fuchsberg Law Center in 1983and began his legal career in a general practice firmfor his first five years after graduation. Since 1988 hehas practiced bankruptcy law and appeared in mat-ters in all four Federal Districts. On July 1, 2002 heopened his own practice in Garden City and thereaftermoved to Westbury where, in addition to Bankruptcy,he practices General, Commercial, Foreclosure,Foreclosure Defense, and Real Estate law. Mr. Somer also volunteers as a member of the New

York State Bar Association’s Committee on VolunteerLawyers and the Nassau County Bar Association’s ProBono Foreclosure Project. He lectures on Bankruptcyand other legal topics for various professional groups.When asked how all this volunteer time impacts hispractice he simply says, “So, I stay later. Anyone whodoes this will find their life enhanced and will learn.”He also explains, “Unfortunately there is a huge needfor volunteer attorneys, especially with all of the budg-et cuts. Becoming involved with projects like the VLP’sBankruptcy Clinic provides you with a new perspec-tive. Practicing law is a privilege, not a right, and weall have an obligation to give back.” Over his 20 yearsof service Harold has logged almost 300 hours of probono service. Maria Dosso, Nassau Suffolk LawServices’ Director of Communications and VolunteerServices has observed Mr. Somer’s compassion for themany desperate clients he encounters. “His long termand steadfast commitment to the Bankruptcy Clinicexplains how he has become the backbone of the probono bankruptcy effort in Nassau County.”

Nancy Zukowski is a volunteer paralegal at Nassau SuffolkLaw Services with a paralegal certificate from SuffolkCommunity College. Ms. Zukowski is also a freelance writerand has extensive professional experience in health insur-ance claims and health care advocacy and has also internedat Nassau Suffolk Law Services, Queens Housing Court, andat private law offices in Suffolk. She is also a member of theSelf Advocacy Association of New York.

By NANCY ZUKOWSKI

PRO BONO ATTORNEY OF THE MONTH

Several recent cases have created asplit among the circuits on the question ofwhether a basis overstatement is anomission of gross income, and may there-fore result in an extended six-yearstatute of limitations. The divided opin-ions have created continueduncertainty among taxpayersand preparers, and the ques-tion of the applicable statute oflimitations for basis overstate-ments remains unanswered.The IRS publications define

basis generally as the cost ofan item or investment. Basisincludes cash, debt obliga-tions, property and servicesused in the acquisition ofassets. Basis may also encom-pass additional costs such assales tax, freight and installa-tion costs. For example, the tax basis of astock or bond is generally the purchaseprice plus brokerage fees and costs.Basis calculations are important inmany situations, including establishingamounts available for depreciation andin computing gain or loss on sale. Theremaining tax basis would be a subtrac-tion from the amount realized. Most recently this controversy has

involved tax shelters known generally as“Son of BOSS” transactions, which cre-ate artificial losses to offset capital gains.The “Son of BOSS” transactions involvethe complex partnership basis rules. TheIRS asserted that basis was artificiallyinflated by use of uncertain liabilitieswhich had no economic substance. Thepartners thereby reported large losseswhich were artificially created withoutany real payment. Recent cases haveconsidered whether these basis over-

statements extended the statute of limi-tations on tax assessments.The statute of limitations on the

assessment of a tax generally begins torun upon the date of filing a (non-fraudu-lent) return, and lasts three years.1 The

statute of limitations can beused as an affirmative defenseagainst audits. The taxpayermust prove the date the returnwas filed, and that the IRSassessed the deficiency afterthe expiration of the statute.2If an omission accounts forgreater than 25% of grossincome, such an omission willsubject the return to a longersix-year statute of limitations.26 USC § 6501(e) provides: If the taxpayer omits fromgross income an amount

properly includible therein and – (i)such amount is in excess of 25 percentof the amount of gross income statedin the return ... the tax may beassessed, or a proceeding in court forcollection of such tax may be begunwithout assessment, at any time with-in six years after the return was filed. However, as stated in Section

6501(e)(1)(B)(ii), adequate disclosuremay negate the six- year statute: [I]n determining the amount omittedfrom gross income, there shall not betaken into account any amount whichis omitted from gross income stated inthe return if such amount is disclosedin the return, or in a statementattached to the return, in a manneradequate to apprise the Secretary ofthe nature and amount of such item. The IRS has recently attempted to

reverse longstanding precedent that a

basis overstatement is not an omission ofgross income. After losing a series ofrecent cases, the IRS passed new regula-tions defining the term “omission” asencompassing an overstatement ofbasis.3 Despite the efforts by theDepartment of Treasury to quell thedebate through the issuance of these new

regulations, the courts are not in agree-ment on degree to which they are boundto accept them. The Seventh, Tenth, D.C.and Federal Circuits have recently givendeference to the newly issued regula-tions; however the Tax Court, the FourthCircuit, and Fifth Circuit have declinedto follow the regulations. The SecondCircuit has not ruled on the issue. The Supreme Court ruled on this issue

in Colony v. Commissioner,4 a 1958 caseinterpreting an analogous statute fromthe 1939 Code. In Colony, the Court heldthat an overstatement of basis is not anomission, and is therefore subject to a

three-year statute of limitations. A recentSupreme Court holding affirmed thatproperly issued Treasury regulationsinterpreting an ambiguous statute areentitled to great deference.5 At issue isthe level of deference which this new reg-ulation should be afforded. Since the reg-ulations were passed, the Federal Circuithas already reversed its position,6 ren-dering a decision in favor of the IRS. With the law in a state of flux, tax-

payers and preparers should exercisecaution as the IRS may have the author-ity to apply a six-year statute of limita-tions after a return is filed. As mentionedabove, adequate disclosure may be adefense to the imposition of the six-yearstatute, as well as an important factor inthe abatement of penalties. It is there-fore recommended that full disclosure beproperly made in instances where basismay be uncertain.

Robert S. Barnett, CPA, JD, MS (Taxation) is a Partner at Capell Barnett Matalon &Schoenfeld LLP in Jericho, New York, wherehe heads the Tax and Estate PlanningDepartments. Rebecca Traub, a summer asso-ciate, assisted in the research and preparationof this article.1. IRC § 6501(a).2. See Hoffman v. Comm’r, 119 TC 140, 146 (2002).3. See Treas. Reg. § 301.6501(e)-1(a)(iii).4. Colony, Inc. v. Comm’r, 357 U.S. 28, 32 (U.S.1958).

5. See Mayo Foundation for Med. Educ. &Research, et al v. U.S., 131 S. Ct. 704 (2011).

6. See Grapevine Imports Ltd. v. U.S., 107 AFTR2d 2011-1288, 1293-95 (Fed. Cir. 2011) (holdingthat pursuant to the recently issued regulations,a basis overstatement constitutes an omission).

Nassau Lawyer n April 2012 n 15

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Basis Overstatements Could Result in a Six Year Statute of Limitations

Robert S. Barnett

After losing a series ofrecent cases, the IRSpassed new regulationsdefining the term “omission” as encompassing an overstatement of basis.

Wendy CarrandoRocco CavaliereMaria CiampiPhilip A. Di PippoKathleen H. DuranteGayle S. Gerson

Christopher A. GormanByron HakimiNeil E. KozekRobert MonteleoneAshka S. PatwaPeter A. Romero

Ray Elliot ShainJon TanEric J. VardiMeryl H. WaxmanTamir M. Young

We Welcome the Following New NCBA Members

Frumit BirnbaumJesse J. CardenasDavid CarlGreg T. Fishkin

Sarah H. FreemanIvana GarbowskiBrittney M. KesselTingting Liu

Matthew RappaportAndrew J. Vacca

ATTORNEYS

STUDENTS

16 n April 2012 n Nassau Lawyer

VIEWfrom the Trials on Steroids: Opening Statements

and Re-Direct ExaminationsBy Hon. Arthur M. Diamond

This column I am going to address areas of trialpractice that I see as increasingly being abused bytrial lawyers – the opening statements and re-directexamination. Let’s start with the opening statement.

As stated in the court’s pre charge instruc-tions to the jury, the purpose of the open-ing statement is for each attorney to out-line for you what they intend to prove.There is a wide range of options availableto the attorneys. Many treatises or lectur-ers will recommend likening it for the juryas a “road map” or a “table of contents of abook.” Common and certainly acceptableforms are telling the jury, “Ladies andgentlemen, on behalf of the plaintiff weare going to call five witnesses who aregoing to tell you what they saw that day. They willtestify, in sum, as follows: ... ” There is also some-thing known as a “non-opening opening,” typicallygiven by a defendant who wants to emphasize thatthe “burden of proof is completely on the plaintiffand I probably wont call a witness. Listen to whatthey tell you about what they saw and heard ... etcetc.” This is also a perfectly acceptable form andserves its own purpose. But what I see more and more often are what I

refer to as ‘Openings Gone Wild,’ especially in thefield of medical malpractice trials. These openingsdon’t summarize testimony or introduce witnesses.Rather the attorney will read into the recordexcerpts from medical records (typically pre-markedinto evidence on consent) which are important to the

case or read deposition testimony that is seen ascrucial admissions by an adverse party. For exam-ple, “you are going to hear that Dr. Smith saw myclient on March 22 of 2009 and entered the follow-ing into her chart ....” Again, the purpose of theopening is not to put things into evidence, it is to

give the jury an outline of the case so theymay understand the proof more clearlywhen it is introduced. More often than notthere are no objections. Understandingthat the manner in which the trial is con-ducted is within the sound discretion ofthe trial court, I choose not to object on myown when I see these summations asopenings that run on and on. But I actual-ly think that they do a disservice to juriesbecause they become difficult to follow andload them with fact after fact. One mayalso run the danger of not proving some or

many of the allegations contained in the openingand that will lead to the adversary ask witnessesabout the opening: Were you here for your lawyer’sopening? Did you hear her say ....? I don’t thinkthere is any question that a lawyer can createunnecessary issues for themselves by givingdetailed openings that may promise testimony thatnever appears.Likewise, I see re-direct examinations being used

for a technically invalid purpose: as an opportunityfor witnesses to simply re-state their direct exami-nations. In their New York Practice commentary,Robert Barker and Vincent Alexander write thatredirect is “generally intended to to allow a party tomeet new matters that were brought during theimmediately preceding examination. Redirect

examination, for example, provides an opportunityto rehabilitate a witness who was impeached oncross examination. It has been held that a witnesshas a right to explain or clarify new matters elicitedon cross examination and to give a full account of atransaction or statement only partially disclosed oncross.” (Emphasis added Sec. 6.75) If a witness tes-tifies on direct that the light was green, and on crosssticks to that testimony, it is not the subject of prop-er re-direct to ask what color the light was!!! Sometimes the cross examiner will inadvertently

‘open the door’ to a subject not gone into duringdirect and his attorney will be allowed to proceed onthat area. In People v. Melendez, 55 N.Y.2d 445, theCourt of Appeals addressed the issue of whether ornot a defense counsel opened the door to a detec-tive’s testimony on re-direct. Melendez, involved a1978 homicide in a public housing project in theBronx. There were no witnesses and the investiga-tion eventually focused on the co-defendantsMelendez and Mendez and a third individual namedMarrero. Marrero eventually provided informationleading to the arrests of the other two and he testi-fied at trial, along with a man named Camacho whoalso testified. The investigating detective, Alexis, testified as

the lead investigator on the case. Two significantdetails were brought out by defense counsel on crossexamination. One, that when Marrero was broughtto the precinct to be interviewed he did not tell himhe was a suspect; and the other was that it was thedetective who told Marrero that Melendez had alsobeen involved.

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– Evidentially Speaking –

The Nassau County Bar Association has a long-standing tradition of presenting the Nassau County Supreme Court with portraits of

Supreme Court Justices.

The formal portrait dedication ceremony for Justice Robert A. Ross, will be on May 2, 2012.

The formal portrait dedication ceremony for Justice Edward W. McCarty III, will be on May 4, 2012.

Both ceremonies will be held at 2 p.m. in the Ceremonial Courtroom in Nassau County Supreme Court.

Justice Anthony Marano, Administrative Judge of Nassau County, will preside over the ceremony and Susan Katz Richman, President of the

Nassau County Bar Association will present the portraits.

For more information contact Dan Bagnuola, Director of Community Relations for the Nassau County Courts at 516-493-3262.

Portrait on May 2 & 4

Presentation

DID YOU KNOW?NCBA Members can now place county wide legal notices in the Nassau Lawyer.

Legal notices in Nassau Lawyer can only refer to:LLCs �� LLPs �� Liquor Licenses �� Private Foundations

ALL notices including Bankruptcies & Foreclosures can also be placed in LLoonngg IIssllaanndd BBuussiinneessss NNeewwss..

To place an ad contact:

legalnotice@libn.comor 631-737-1700

and particularize Article 16 like anyother affirmative defense.10The First Department has not spo-

ken on this issue, though at least onetrial court has agreed that CPLR 3018may require a defendant to pleadArticle 16 and provide particulars.11The Third Department has not spokenon this issue either, though it appearsto have applied Article 16 on appeal tolimit a defendant’s liability.12

Pleading Article 16 Exemptions: Better Late than Never

Parties seeking to assert a CPLR1602 exemption must allege it, butwhen must they do so? In Detrinca v. DeFillippo the First Department heldthat, with no time limit in Article 16,parties were as free to add a CPLR 1602exemption as they are to otherwiseamend pleadings under CPLR 3025.13The Second Department has not

addressed this issue, but one reportedopinion from Brooklyn Supreme Courtgoes even further than Detrinca. InRubinfeld v. City of New York, the Cityraised the Article 16 issue post-trial,and the plaintiff raised the non-dele-gable duty exemption. The plaintiff hadnever amended his pleading, but thecourt held that “because the [A]rticle 16issues were extensively argued duringtrial, the plaintiff’s complaint is herebydeemed to have been amended.”14The appeals stage, however, appears

to be too late to invoke a CPLR 1602exemption for the first time. In Cole v.Mandell Food Stores, the Court ofAppeals held that implicit in CPLR1603’s “allege and prove” requirement“is that a defendant potentially subjectto the weight of a full judgment musthave appropriate notice provided bypleadings,” therefore the defendantswere prejudiced by the plaintiff intro-ducing an exemption on appeal.15

Article 16 and Summary JudgmentWhat if a co-defendant prevails on a

motion for summary judgment underCPLR 3212? Can the remaining defen-dants still use Article 16 to reduce theirown liability by that former defendant’sshare? After Drooker v. South NassauCommunities Hospital, it appears thatthey cannot:Inasmuch as a motion for summaryjudgment is the functional equivalentof a trial and the remaining defen-dants failed to satisfy the evidentiaryburden that shifted upon themovant’s prima facie showing, theopportunity to limit liability under[A]rticle 16 with respect to themovant’s acts or omissions has beenforfeited.16A motion to dismiss under CPLR

3211, however, is not the “functionalequivalent of a trial.” So when two ofthe three defendants in Brash v.Richards had the complaint dismissedas against them, the remaining defen-dant was still able to argue for appor-tionment of liability among all three.17

Whether and When to “Allege and Prove”

Given Marsala, there seems littlereason for defendants in the SecondDepartment to plead Article 16 as anaffirmative defense. Moreover, anydefendant who does so would be hardpressed to argue, even with Marsala,that they need not offer particulars asthey would for any other affirmativedefense.In the Fourth Department, of course,

defendants must affirmatively plead

Article 16. They probably should do soin the First and Third Departments aswell, if only to comply with CPLR 3018.But defendants need not plead Article16 before actually learning of other tort-feasors. Defendants are as free as plain-tiffs to amend their pleadings underCPLR 3025, and as long as the othertortfeasors appeared in disclosure,there can hardly be a claim of surprise.Whenever defendants plead Article

16, plaintiffs should serve a demand fora bill of particulars on the defense.Even if the demand is ultimatelydeemed “palpably improper” or metwith a non-responsive response, plain-tiffs might learn what other tortfeasorsdefendants know of at the outset of liti-gation. They will also have laid thegroundwork for a subsequent argumentunder CPLR 3018 should the defen-dants introduce other tortfeasors late inthe game.Plaintiffs, and co-defendants, for

that matter, should also plead anyapplicable CPLR 1602 exemptions assoon as possible. In fact, there seems noreason for plaintiffs not to plead gener-ally that Article 16 does not apply, justas defendants may generally allege anArticle 16 affirmative defense.Should specific exemptions appear

relevant though disclosure, parties canalways seek leave to amend their plead-ings. To be safe, one should try to raiseall applicable exemptions by the pretri-al conference. But one should not ignorean exemption found even later to apply.Depending on the possible prejudice tothe defendant and the progress of dis-closure and trial, a judge might let theexemption go to the jury.Of course, all parties should proac-

tively seek out the existence of any otherpossible tortfeasors during disclosure.Both sides have an interest in bringingall responsible parties into the litiga-tion, and full disclosure may weakenany subsequent argument of surprise.To proactively avoid surprise, parties

should demand fuller expert witnessdisclosures under CPLR 3101(d).Perhaps one cannot preclude the possi-bility that a defendant, à la Rodi, willintroduce a nonparty tortfeasor at thelast minute. But the more that defen-dants are pressed for fuller expert dis-closure, the more likely that expertswill be precluded from going beyond thedisclosure to blame others not previous-ly identified.Lastly, neither plaintiffs nor defen-

dants should neglect co-defendants’motions for summary judgment underCPLR 3212. Should those co-defendantsprevail, they will be immune from appor-tionment of liability under Article 16.

Christopher J. DelliCarpini and John M.DelliCarpini are principals of The DelliCarpiniLaw Firm with offices in Melville, representingplaintiffs in personal injury matters.

1. CPLR 1601(1). “Non-economic loss” includespain and suffering, mental anguish, and loss ofconsortium. See CPLR 1600.

2. Morales v. County of Nassau, 94 N.Y.2d 218,223 (1999).

3. CPLR 1602(6).4. 208 A.D.2d 689, 691–94 (2nd Dept. 1994)(Ritter,J., concurring).

5. Id. at 690.6. Id. at 696.7. Id. at 698.8. 170 Misc.2d 180 (Sup. Ct., Rockland Co. 1996).9. Id. at 182.10. Ryan v. Beavers, 170 A.D.2d 1045 (4th Dept. 1991).11. Maria E. v. 599 West Assocs., 188 Misc.2d 119

(Sup. Ct., Bronx Co. 2001).12. See Cazsador v. Green Central School, 220

A.D.2d 862, 864 (3d Dept. 1995). The defen-dant had brought a third-party claim, in whichthe jury had apportioned liability among thetwo tortfeasors.

13. 165 A.D.2d 505, 509 (1st Dept. 1991).14. 170 Misc.2d 868 (Sup. Ct., Kings Co. 1996).15. 93 N.Y.2d 34, 39-40 (1999).16. 175 Misc.2d 181, 185 (Sup. Ct., Nassau Co.

1998)(citations omitted).17. 30 Misc.3d 436, 446 (Sup. Ct., Kings Co. 2010).

Nassau Lawyer n April 2012 n 17

ARTICLE 16 ...Continued From Page 7

Martin P. Abruzzo Donald F. Leistman

Mark E. Alter Jonathan C. Lerner

Ernest T. Bartol Peter J. Mancuso

Jack A. Bennardo Robert A. McDonald

Hon. James D. Bennett John P. McEntee

Hon. Robert A. Bruno Christopher T. McGrath

Neil R. Cahn Jeffrey A. Miller

Henry J. Cernitz Katharine E. O’Dette

Alan W. Clark Hon. Michael L. Orenstein

Richard D. Collins Henry W. Pearson

Laura M. Dilimetin Marian C. Rice

John P. DiMascio Hon. Susan Katz Richman

Jerome H. Ehrlich Joan Lensky Robert

Steven J. Eisman Edward T. Robinson III

Marc C. Gann Mary B. Samenga

John J. Giuffré Hon. Marie G. Santagata

Douglas J. Good William M. Savino

Hon. Frank A. Gulotta Jr. Stephen W. Schlissel

Saundra M. Gumerove Hon. Peter B. Skelos

Richard A. Gurfein Ira S. Slavit

Warren S. Hoffman Arthur D. Spatt

Elena Karabatos M. David Tell

Harold Karmiol Seymour Trager

Hon. John L. Kase Owen B. Walsh

Hon. Susan T. Kluewer Alfred Wolkenberg

Martha Krisel

NCBA

Sustaining Members2011 - 2012

18 n April 2012 n Nassau Lawyer

Contributions may be sent to: NCBA, Attn: WE CARE, 15th & West Streets,Mineola, NY 11501 or at: www.nassaubar.org

We Acknowledge, with Thanks, Contributions to the WE CARE FundDonors In Honor Of

Steven J. Eisman Birth of Olivia Nicole Wolf, granddaughter of Hon. Denise & Robert Sher

Steven J. Eisman & Samuel J. Ferrara Birth of Anya Vessa, granddaughter of Michael VessaFranchina & Giordano Caryle Katz’s receipt of the Liberty Bell AwardFranchina & Giordano Mary Campbell & Leonard Ambruso’s receipt of the Peter

Affatato Ct. Employee of the Year AwardPhilip S. Milone Hon. James J. Tini being elected President of the Nassau

County Magistrate’s Association Hon. Denise Sher 70th Birthday of Hon. John KaseHon. John Zenir Caryle Katz’s receipt of the Liberty Bell Award

Donors Speedy Recovery

Nassau Academy of Law Advisory Board Dee Barcham

Donors In Memory Of

Elizabeth & Hon. Steve Bucaria Hon. Ralph YachninSteven Eisman & Sam Ferrara Edna Beck, grandmother of Jerome & Kim ScharoffSteven & Kathy Eisman Betty Withington, mother of Karen Mancuso & mother-in-law

of Peter Mancuso Marilyn, Jamie & Alexandra Genoa Gertrude MillerKenneth J. Landau Thomas W. StanisciHon. Samuel M. Levine My Wonderful WifeGrace D. Moran Michael AsplandNassau County Magistrates Association, Inc. Hon. John McGuireSantemma & Deutsch LLP James PedowitzSantemma & Deutsch LLP Patricia CroninSantemma & Deutsch LLP Edward P. Bracken Jr.Joan & Steve Schlissel Sandra GoldmanHon. Peter B. Skelos Joseph L. Carni, father of Hon. Edward CarniHon. Elaine Jackson Stack & Sanford Goldsmith Arthur Charmatz

Hon. Elaine Jackson Stack & Sanford Goldsmith Yoshiko Sato

WE CARE Advisory Board Edna Beck

In Memory Of Helen Phillips

WE CARE

Carolyn BoninoPat CarbonaroMary DavidsonFlorence M. FassFranchina & Giordano, PCMarilyn GenoaEugene Ginsberg

Douglas GoodJoanne & Hon. Frank Gulotta Jr. Caryle KatzHon. Susan T. KluewerElaine LeventhalKenneth L. MartenPatrick J. McCormack

Stephanie PaganoHon. Andrea PhoenixHon. Denise L. SherHon. Peter B. SkelosHon. Elaine Jackson StackHon. Ira Warshawsky John M. Zenir

In Memory Of Donald Deegan

Elizabeth & Hon. Steve BucariaPatrick J. McCormack

Grace D. MoranHon. Arthur Spatt

In Memory Of Kenneth Schwitz, Husband Of Hon. Tammy Robbins

Joanne & Hon. Frank Gulotta Jr.Hon. Fred & Mindy Hirsh

Hon. Denise L. SherHon. Elaine Jackson Stack

Save these Dates!

ThursdayJune 7, 2012

SundayAugust 12, 2012

For more information contact Elaine Leventhal 516-747-4070 x.212

WWEE CCAARREEDDrreesssseedd ttoo aa TTeeaa

OOuurr MMooddeellss

settlement conference in residential fore-closure actions with, inter alia, the mort-gage and note.The stricter requirements placed

upon plaintiffs in mortgage foreclosureactions also include the addition of sub-section “f” to 22 NYCRR § 202.12-a[f]:The Chief Administrator of the Courtsmay continue to require counsel to fileaffidavits or affirmations confirmingthe scope of inquiry and the accuracyof papers filed in residential mortgageforeclosure actions addressing bothowner-occupied and (notwithstandingsection [a] supra [making this sectionapplicable to home loans for one- tofour-family homes]) non-owner-occu-pied residential properties.

Pursuant thereto, since 2010, ChiefJudge Jonathan Lippman has requiredlawyers for mortgagees to file an affir-mation certifying that counsel has takenreasonable steps to verify the accuracy ofdocuments filed in support of residentialforeclosures.5Clearly, both the judicial system and

the legislative branch of government arereacting to the sloppy electronic storageof documents and the rampant electronicassignment of notes, which are, inciden-

tally, accompanied by an unprecedentedvolume of mortgage foreclosure lawsuitsand an alarming number of families losing their homes. Courts are attackingunprofessional practices by mortgageesand their attorneys (especially the highvolume, low cost law firms or “mortgagemills”) in connection with the mortgageforeclosure process.6 The Second De -partment has even warned that, “the lawmust not yield to expediency and the con-

venience of lending institutions. Properprocedure must be followed to ensure thereliability of the chain of ownership, tosecure the dependable transfer of proper-ty, and to assure the enforcement of the rules that govern real property.”7Accordingly, before a mortgagee clientloses track of original mortgage docu-ments or depends upon some new com-puterized system to keep track of elec-tronic mortgage assignments, attorneys

should caution their clients of theexceptional evidentiary require-ments and rigid burden of proofplaced upon plaintiffs-mortgagees toestablish standing by the productionof original mortgage documents or –at a bare minimum – valid andenforceable assignment agreements.

Joseph Capobianco is a partner atReisman Peirez Reisman & Capobianco

LLP, where he focuses on commercial litiga-tion and bankruptcy. Gabrielle R. Schaich-Fardella is a senior associate at ReismanPeirez Reisman & Capobianco LLP, and anadjunct instructor at Queens College.

1. See, e.g., In re MIMS, 438 B.R. 52, 56-57(S.D.N.Y. 2010); In re Foreclosure Cases, 521 F.Supp. 2d 650, 653 (S.D. Ohio 2007); TPZ Corp.v. Dabbs, 25 A.D.3d 787, 789 (2d Dept. 2006);Flyer v. Sullivan, 284 A.D. 697, 699 (1st Dept.1954); Beneficial Homeowner Service Corp. v.Steele, 30 Misc. 3d 1208(A), *2 (N.Y. Sup. Ct.,Suffolk Co. 2011); Wells Fargo Bank, N.A. v.Hughes, 27 Misc. 3d 628, 629 (N.Y. Sup. Ct.,

Erie Co. 2010); Deutsche Bank Natl. Trust Co. v.McRae, 27 Misc. 3d 247, 251 (N.Y. Sup. Ct.,Allegany Co. 2010).

2. Bank of New York v. Silverberg, 86 A.D.3d 274,279-281 (2d Dept. 2011); see HSBC Bank USA,N.A. v. Taher, 32 Misc. 3d 1208(A), *13 (N.Y.Sup. Ct., Kings Co. 2011) (dismissing the mort-gage foreclosure action with prejudice due toplaintiff’s lack of standing, pursuant to Bank ofNew York v. Silverberg).

3. Bank of New York, 86 A.D.3d at 280-281.4. U.S. Bank v. Emmanuel, 83 A.D.3d 1047, 1048(2d Dept. 2011) (ruling that a party’s lack ofstanding does not constitute a jurisdictionaldefect and does not warrant a court’s sua spontedismissal of a complaint); Deutsche Bank Natl.Trust Co. v. Hussain, 78 A.D.3d 989, 990 (2dDept. 2010) (ruling that defendant had waivedthe argument that plaintiff lacked standing tocommence the foreclosure action when defen-dant failed to interpose an answer or file a time-ly pre-answer motion asserting the defense oflack of standing); Deutsche Bank Natl. Trust Co.v. Young, 66 A.D.3d 819, 819 (2d Dept. 2009)(finding that the Supreme Court had not erredin determining that defendants waived thedefense of standing by failing to appear oranswer timely).

5. See www.nysba.org/foreclosureaffirmation. Seealso CPLR 2105 (permitting an attorney to cer-tify that a document has been compared by himwith the original and found to be a true andcomplete copy, where a certified copy of a paperis required by law).

6. Aurora Loan Services, LLC v. Moore, Index No.8942/2009, NYLJ 1202493380274, *2 (N.Y. Sup.Ct., Kings Co. April 14, 2011); Wells FargoBank, N.A. v. Hughes, 27 Misc. 3d 628, 630(N.Y. Sup. Ct., Erie Co. 2010); Wells FargoBank, N.A. v. St. Aubin, 22 Misc. 3d 1120(A), *4(N.Y. Sup. Ct., Kings Co. 2009).

7. Bank of New York, 86 A.D.3d at 281.

Having an isolated case with a hold-ing and relying on it may be risky. Othercourts in either the same county or inother counties may not be inclined to fol-low it. It may be overruled or overlookedin subsequent appellate cases. Further,that case did not address any specificcontract clause, and, therefore, no guid-ance is readily available at this stage.So language for a possible clause to be

included may be as follows:Owner and Broker hereby agree as fol-lows: (a) that the commissions earnedby the Broker are equitable in nature,warrant and justify a lis pendens; (b)that Owner hereby consents andagrees to the filing of a lis pendens inthe event of non-payment of any andall commissions earned or whichbecome due hereunder by Broker, (c)Owner hereby waives any and alldefenses to the filing of a notice of pen-dency by Broker, (d) Owner herebywaives any and all relief or remedy ofvacating, discharging and or can-celling of such notice of pendency, (e)that the unpaid commission(s) repre-sent an interest in the real property

and the sales price received on a sale,(f) that the commission and any actionto collect an unpaid commission(s)affects title possession, use or enjoy-ment of the subject real property; (g)that the Broker is deemed a party tothe underlying transaction to sell anyparticular unit for purposes of filing ofa notice of pendency, (h) that theBroker’s commission is given a priori-ty over any bank(s) having filed amortgage on the real estate and thatthe Broker will be paid at closingbefore any bank or the Owner receivesany proceeds of such sale and (i) thatthe cumulative unpaid Broker’s com-mission(s) represent a priority on allfuture and subsequent sales so thatthe amount of the priority lien increas-es according to the cumulative unpaidcommissions.Research for this article did not

uncover any cases enforcing express lan-guage providing for the right to file anotice of pendency. Nor was any case lawfound that would limit the above rule toa commercial situation. In other words, aresidential real estate broker may beable to protect herself when she sells aresidential unit on behalf of an individ-ual owner by including a clause provid-ing for the right to file a notice of pen-dency.

No Mechanic’s Lien Permitted With One Exception

Under New York Lien Law § 3, “a con-tractor …who performs labor … for theimprovement of real property with theconsent or at the request of the ownerthereof … shall have a lien for the prin-cipal and interest, of the value, or theagreed price, of such labor…for the timeof the filing of such lien as prescribed inthis chapter.”New York Lien Law § 2(4) defines

“improvement” as “the performance ofreal estate brokerage services in obtain-ing a lease for a term of more than threeyears of all or any part of real property tobe used for other than residential pur-poses pursuant to a written contract ofbrokerage employment or compensa-tion.”Accordingly, a real estate broker that

sells units for a developer may not file amechanic’s lien. This section permits acommercial real estate broker to file amechanic’s lien if the commission for the

commercial lease of more than threeyears pursuant to a written brokerageagreement was not paid.

The Broker’s AffidavitReal Property Law § 294-b(1), which

provides that a broker may file an affi-davit of entitlement to a commission forcompleted brokerage services in theoffice of the recording officer of thecounty in which the real property is sit-uated does not invalidate the transfer ofreal property or the lease and does notcreate a lien. Another words, the legis-lature’s attempt to address the need forbrokers to be protected from unscrupu-lous owners fell short of offering anyprotection. The broker’s affidavit underthe RPL appears to have been an exer-cise in futility.

Henry E. Rakowski, Esq., has a practice focus-ing on the enforcement of commercial credi-tor’s rights and the enforcement of judg-ments. Generally, Mr. Rakowski practices inthe area of commercial, corporate and realestate law.

Nassau Lawyer n April 2012 n 19

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damages claim under Section 2801-d(2),the court held, without reference to anyauthority, that the statutory standard ispurportedly less stringent than the com-mon law standard.21Fortunately for nursing homes, the

legally unsupported conclusions of theOsborne and Demicoli courts that Section2801-d(2) imposes a lesser standard forawarding punitive damages than thecommon law standard have not beenwidely adopted by other trial level courts.Indeed, the majority of decisions on theissue have arrived at contrary conclu-sions. In Williams v. Ruby Weston Manor,22 a

Kings County matter, the court held thatpunitive damages may be recovered pur-suant to Section 2801-d(2) in only veryrare instances, noting that the standardsfor awarding punitive damages under thecommon law and Section 2801-d(2) arevirtually identical. In Williams, the plain-tiff, a resident of the defendant-nursinghome, was purportedly disabled, withphysical and mental impairments andlimitations that required two people toprovide constant supervision and/or phys-ical lift for transfers.23 Plaintiff claimedthat the nursing home improperly leftplaintiff alone on a toilet with the bath-room door closed, causing her to fall andinjure herself.24 It was also claimed thatthe nursing home delayed in obtainingfollow-up x-rays after the initial x-rayswere apparently negative for fracture.25In Williams, the plaintiff sought to

amend the complaint to add variousclaims, including a claim for punitivedamages under Section 2801-d(2). Thecourt denied this portion of the motion as“palpably without merit,”26 concludingthat plaintiff could not recover punitivedamages under Section 2801-d(2) becausethe record lacked any evidence that thedefendant’s alleged wrongdoing warrant-ed punitive damages.27 Indeed, the courtheld that the situations in which punitivedamages could be recovered underSection 2801-d(2) were analogous to thoserare instances in which punitive damagescould be recovered in traditional medicalmalpractice cases.28 The court concludedthat the allegations “although serious, didnot in themselves evince such recklessindifference that would transcend normalnegligence or malpractice and justifypunitive damages.”29In another very recent Kings County

case, Butler v. Shorefront Jewish

Geriatric Ctr.,30 the court analyzedSection 2801-d(2), and determined that toimpose punitive damages, the wrongdo-ing “must be voluntary and intentional ormust have created a substantial andunjustifiable risk of harm with a con-scious disregard of, or indifference to, thatrisk,”31 a standard that is essentiallyidentical to the common law standard. Inthat case, defendant Haym SolomonHome for the Aged moved for summaryjudgment, seeking dismissal of all claims,including the claims for punitive dam-ages.

In addressing the punitive damagesissue, the court analyzed the statutorylanguage to discern the standard thatneeds to be met under Section 2801-d(2)to impose punitive damages and deter-mined that the wrongful conduct musthave been voluntary and intentional ormust have created a substantial andunjustifiable risk of harm with a con-scious disregard of, or indifference to, thatrisk.32Applying the above-referenced stan-

dard for punitive damages under Section2801-d(2), the court held that the recordwas devoid of evidence of a “willful depri-vation of a right or benefit or a recklessdisregard of a lawful right or benefit” anddismissed the punitive damages claim, aswell as all other claims against HaymSolomon.33Some recent trial level decisions have

been equivocal as to whether there is any

meaningful difference between the stan-dards for awarding punitive damagesunder the common law and Section 2801-d(2), but have nevertheless determinedthat the plaintiffs failed to satisfy theirburden under the statute. See Holder v.Menorah Home & Hosp. for the Aged;34Ragiel v. Park Ave. Extended Care CenterCorp.35 Other recent decisions have sim-ply applied the common law standard topunitive damages claims asserted underSection 2801-d(2) and dismissed them.See Held v. Woodmere Rehab. & HealthCare Ctr.;36 Maltese-Kojallo v. FairviewNsg. Care Ctr., Inc.37

ConclusionThe standard for awarding punitive

damages against a personal injury defen-dant under New York’s common lawrequires the demonstration of intentionalor highly reckless conduct. Likewise,Section 2801-d(2) sets forth a very highstandard for awarding punitive damagesagainst nursing homes. As recognized bymost of the lower court decisions dis-cussed herein, the standard for awardingpunitive damages under Section 2801-d(2) requires plaintiffs to “clear a highbar.”38In view of the foregoing, and in accord

with the majority of these decisions, NewYork courts should uniformly hold thatthe standards for awarding punitive dam-ages under the common law and Section2801-d(2) are, in essence, identical, withno meaningful differences between them.Consequently, as under the common law,New York courts should very rarely per-mit juries to consider punitive damagesunder Section 2801-d(2). In view of the ever-increasing asser-

tion of punitive damages claims againstnursing homes, defense counsel mustdevise a plan from the inception of litiga-tion to address them, assessing theirpotential merit and viability. Dispositivemotion practice following the completionof discovery should be considered well inadvance of trial, to avoid the specter of apotential punitive damage award. Even ifdefense counsel believes that a punitivedamage award is unlikely, a trial judgemay nevertheless let the jury decide theissue, perhaps as a means of gainingleverage over the defendant to force a set-tlement.To avoid this possibility, nursing home

defendants should strongly consider mov-ing for partial summary judgment as tothe punitive damage claim in advance oftrial. In moving for summary judgment,the nursing home defendant shouldinclude an expert affirmation to best

establish its prima facie entitlement tosummary judgment.39Additionally, defense counsel should

contend that the high standard for award-ing punitive damages under the commonlaw is virtually identical to the standardset forth in Section 2801-d(2), with nomeaningful differences between them.The dismissal of the punitive damagesclaim before trial will improve the nurs-ing home’s position and will likely resultin a better outcome in the litigation.

Keith L. Kaplan is a partner in the Garden Cityoffice of Kaufman Borgeest & Ryan LLP. Hedevotes a significant portion of his practice tothe defense of nursing homes in personalinjury actions.

1. See Nardelli v. Stamberg, 44 N.Y.2d 500, 503-505(1978).

2. See Home Ins. Co. v. Amer. Home Prods. Corp.,75 N.Y.2d 196, 204-205 (1990).

3. Whitehurst as Admin. for the Estate of Danzy v.Brooklyn-Queens Nsg. Home, Inc., No.40307/2004 (Sup. Ct. Kings Co. Dec. 18, 2009).

4. Mueller v. Elderwood Health Care at Oakwood,31 Misc.3d 1210(A), 929 N.Y.S.2d 201 (Sup. Ct.Erie Co. 2011).

5. Gravitt v. Newman, 114 A.D.2d 1000, 1002 (2dDept. 1985).

6. Rey v. Park View Nsg. Home, Inc., 262 A.D.2d624, 627 (2d Dept. 1999).

7. Giblin v. Murphy, 73 N.Y.2d 769, 772 (1988).8. 262 A.D.2d at 627. 9. Id. at 625. 10. Id. at 626.11. 302 A.D.2d 948 (4th Dept. 2003). 12. Hale, 302 A.D.2d at 949.13. 19 Misc.3d 1132(A), 866 N.Y.S.2d 93 (Table)

(Sup. Ct. NY County 2008).14. Id.15. Id.16. Id.17. No. 11549/2007 (Sup. Ct. Nassau Co., Order

dated July 20, 2009). 18. Id. at 2.19. Id. at 2.20. Id. at 2.21. Demicoli at 2-322. No. 6667/05 (Sup. Ct. Kings Co., Order dated

June 23, 2006).23. Id. at 2.24. Id. at 2.25. Id. at 2-3.26. Id. at 12.27. Id. at 12-13.28. Id. at 12-13. 29. Id. at 13 (citations omitted).30. 2011 WL 4346573 (Sup. Ct. Kings Co., Order

dated Sept. 14, 2011).31. Id.32. Id. at 7.33. Id. at 8, 10.34. No. 15593/2007 (Sup. Ct. Kings Co., Order dated

Mar. 25, 2011, at 9).35. No. 15248/2005 (Sup. Ct. Nassau Co., Order

dated Sept. 8, 2000 at 2-3).36. No. 15947/2007 (Sup. Ct. Nassau Co., Order

dated Aug. 25, 2009 at 4). 37. No. 13830/2007 (Sup. Ct. Queens Co., Order

dated January 13, 2010 at 10).38. See Holder, supra.39. See Vaynberg v. St. Vincent’s Catholic Med. Ctr.

of New York, No. 37727/2006 (Sup. Ct. KingsCo., Order dated Oct. 14, 2009).

DAMAGES ...Continued From Page 5

Education LawMeeting Date: March 15Chair: Christie Medina

Joint meeting with the FamilyCourt Law & Procedure committee,who co-sponsored a presentation enti-tled “Overview of PINS and JuvenileDelinquency Cases” featuring guestspeaker Stephanie Hubelbank, Esq.,Bureau Chief of the Family CourtBureau of the Nassau CountyAttorney’s Office. Ms. Hubelbank pro-vided an overview of the law and rulesgoverning PINS and JuvenileDelinquency cases, and explained therole that school districts commonlyhave in such proceedings.

Military LawMeeting Date: March 20Chair: Daniel T. Campbell

The committee discussed anupcoming Dean’s Hour CLE programscheduled for May 17, 2012 at 12:30p.m., which will include an update ofthe Veteran Law Guide prepared bythe Committee in 2010. The commit-tee also discussed a change in SocialSecurity benefits law which mayhelp some veterans increase theirbenefit.

Tax LawMeeting Dates: Jan. 10, Feb. 14, March 13 Chair: Yvonne R. Cort

For the March 2012 meeting, thecommittee welcomed attorney andadjunct NYU professor Bryan Skar -

latos, Esq. of Kostelantez & Fink, LLPto present an ethics CLE seminar entitled “Good Lawyer/Bad Lawyer:Ethical Issues for Tax Attorneys.” Mr.Skarlatos discussed Circular 230 andother standards applicable when nego-tiating with the IRS and advisingclients on tax positions.The February committee meeting

was held jointly with the FederalCourts Committee, with AssistantU.S. Attorney Burton Ryan as guestspeaker. With Peter Tomao, Esq. asmoderator, Mr. Ryan detailed hisexperiences prosecuting cases involv-ing foreign bank accounts, cash pay-rolls and related matters in his pres-entation titled “Beyond Evasion: AFederal Prosecutor’s View of TaxCases.”The January committee meeting

featured Vice-Chair of the Elder Lawcommittee Paul Hyl, Esq. of Genser

Dubow Genser & Cona LLP, whodelivered a presentation regardingconflicts and differences between therules for Medicaid and the IRS in var-ious planning situations.Upcoming meeting to be held on

April 24, 2012, featuring a lecture bycommittee Vice Chair Lara Chwat,Esq. of Katz, Bernstein & Katz LLPabout recent developments in the lawregarding “innocent spouses”. Detailsabout prior or upcoming meetings canbe obtained by contacting Yvonne Cortat ycort@litaxattorney.com.

Michael J. Langer, an associate in the LawOffices of Kenneth J. Weinstein, is a for-mer law clerk in the United States Court ofAppeals for the Second Circuit, and a for-mer Deputy County Attorney in the Officeof the Nassau County Attorney. Mr.Langer's practice focuses on matrimonialand family law, criminal defense and gen-eral civil litigation.

COMMITTEES ...Continued From Page 8

Nassau Lawyer n April 2012 n 21

Society. Mr. Raniere is a partner inthe firm’s Education Law PracticeGroup where he provides general andlabor counsel to school districts andpublic libraries. He earned his JurisDoctor from Fordham UniversitySchool of Law where he was theSymposium Editor of the FordhamUrban Law Journal.

Andrew M. Roth has been nameda partner at Sahn Ward Coschignano& Baker. Mr. Roth, who concentrateshis practice in commercial litigation,earned his Juris Doctor from theUniversity of Bridgeport.

Stephanie Suarez and John S.Groarke have become members ofGarden City-based Colleran, O’Hara& Mills LLP.

Roy M. Anderson has joined theEmployment Practice Group atJaspan Schlesinger LLP as an associ-ate. Mr. Anderson, who earned hisJuris Doctor from Brooklyn LawSchool, was honored as an Edward V.Sparer Public Interest Fellow duringlaw school. He was also the ExecutiveArticles Editor of the Brooklyn

Journal of Corporate, Financial andCommercial Law and served as anInternational Human Rights Fellowat the United Nations Office ofNairobi, Kenya. In 2010, Mr.Anderson was awarded the PlatinumBrooklyn Law School Public ServiceAward.

New Firms and LocationsThe new firm of Barket, Marion,

Epstein & Kearon, LLP has openedits offices at 666 Old Country Road,Suite 700, Garden City. The firm con-centrates on white collar criminaldefense, traditional criminal defenseand municipal and civil rights mat-ters.The firm of Genser Dubow Genser

& Cona, an elder law and estate plan-ning firm, announced the opening ofits new headquarters at 225Broadhollow Road, Suite 200 inMelville.

The Honorable Stephen L. Ukeiley is aSuffolk County District Court Judge andauthor of The Bench Guide to Landlord &Tenant Disputes in New York.©

PLEASE E-MAIL YOUR SUBMISSIONS TONassau Lawyer: nassaulawyer@nas-saubar.org with subject line: IN BRIEF

IN BRIEF ...Continued From Page 8

Onre-direct, over objection, the prosecutorwas allowed to ask Det. Alexis how itwas that Marrero became a suspect. Thetestimony, which included muchhearsay, was allowed, the Court ruled,because the defendant had “opened thedoor” to the testimony on cross. The con-viction was eventually overturned bythe Court of Appeals holding that theruling violated the defendant’s right ofconfrontation. There is very importantlanguage in the decision about theappropriate bounds of cross and re-direct examination. Recognizing that“opening the door” theory is a recognizedpart of our evidence jurisprudence, thecourt discussed the circumstances underwhich it is typically applied. Perhaps themost familiar practice is using re-directto allow an impeached witness explainthe circumstances surrounding the factsunderlying the impeachment. (CitingPeople v. Buchalter, 289 N.Y. 181 and3A Wigmore, Evidence Sec. 1044) Another common example is when

the witness has been constructivelybeen charged with fabricating testimonyon the stand, the savvy trial lawyer may

use re-direct to elicit prior consistentstatements of the witness. (People v.Davis, 214 N.Y. 249). And of coursewhen part of a statement is introducedon cross, re-direct may be used to clarifyor more fully explain the statement(People v. Torre, 42 N.Y.2d 1036 andPeople v. Schlessel, 196 N.Y. 476)But as the Court of Appeals held

here, merely questioning the witness ona matter not previously discussed ondirect does not “open the door” to any-thing. Rather, the questioning must beon an issue that is on trial in the caseand even if so, the re-direct must be lim-ited to cover only those additional ornew matters covered on the cross. Thecircumstances of how the cooperatingwitness had he himself become a subjectof the homicide investigation has nodirect bearing on the guilt or innocenceof the defendant on trial. I believe that it is incumbent upon

trial lawyers and my colleagues on thebench to adhere to these principles morestrictly than we are doing at present.Court room trial time is precious enoughas is. Wasting it on repetitive testimonyis inexcusable.

Arthur M. Diamond is a Supreme CourtJustice in Mineola. He welcomes evidencequestions & comments and can be reached atadiamond@courts.state.ny.us.

VIEW FROM THE BENCH ...Continued From Page 16

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