T J of n C B a FEBRUARY 2018 Vol. 67, … · Michael J. Langer, Esq. Douglas M. Lieberman, Esq. Nicole Lubell, Esq. Randa D. Mahar, Esq. Cheryl Y. Mallis, Esq. Angelica M. McKessy,

The Journal of The nassau CounTy Bar assoCiaTion

FEBRUARY 2018 www.nassaubar.org Vol. 67, No. 6

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CONFIDENTIAL HELP IS AVAILABLE TO LAWYERS AND JUDGES

alcohol or drug use, depression or other mental health problems

Call Lawyer Assistance Program1-888-408-6222

NCBA COMMITTEE MEETING CALENDARPage 20

SAVE thE DAtESWE CARECHILDREN’S FESTIVALWednesday, February 21, 2018At DomusSee pg 16

NASSAU ACADEMY OF LAWBRIDGE THE GAPSaturday & Sunday, March 3-4, 2018At Domus

NASSAU ACADEMY OF LAWHon. Elaine Jackson StackMOOT COURT COMPETITIONMarch 27 & 28, 2018 at DomusDetails to follow

WE CAREDRESSED TO A TEAThursday, March 22, 2018At DomusDetails coming soon

LAW DAY FRAMEWORK FOR FREEDOMThursday, May 3, 20185:30 p.m.

119th ANNUAL NCBA DINNER DANCESaturday, May 12, 2018See pg 6

WhAt’S INSIDEPersonal Injury/Workers Compensation LawImportant Ethical Rules in Handling Tort Cases Page 3

Using Cash-Out Mergers to Resolve LLC Member Disputes Page 5

Extraordinary Expenses: A Unique Limitations Rule for a “Unique” Claim Page 6

No-Fault Arbitration vs. Litigation Page 7

A Primer on Preparing for Personal Injury Mediation Page 8

The 2017 Roller Coaster Ride in New York Workers’ Compensation Page 9

Keeping Wills Safe from Attack Page 10

Book Review Race to Judgment By Judge Frederic Block Page 21

OF NOtENCBA Member Benefit - I.D. Card PhotoObtain your photo for Secure Pass Court ID cards at NCBA Tech Center Only For New ApplicantsCost $10 • March 6, 7 & 8, 20189 a.m.- 4 p.m.

UPCOMING PUBLICATIONS COMMITTEE MEETINGS AT THE BAR ASSOCIATIONThursday, March 1, 2018 12:45 p.m.

Thursday, April 2, 2018 12:45 p.m.

NCBA Diversity and Inclusion Committee Formed

Kenneth R. Feinberg will be hon-ored as the seventy-fifth recipient of the Association’s Distinguished Service Medallion, to be presented at the One Hundred and Nineteenth Annual Dinner Dance on Saturday, May 12, 2018. The Distinguished Service Medallion, the Nassau County Bar Association’s highest honor, is awarded to an individual, either attor-ney or non-attorney, for service which has enhanced the reputation and dig-nity of the legal profession.

Mr. Feinberg is one of the nation’s leading experts in alternative dis-pute resolution, having served as Special Master for the 9/11 Victim Compensation Fund, the DOJ U.S. Victims of State-Sponsored Terrorism Fund, the Department of Treasury’s TARP Executive Compensation and MPRA pension reform programs, and the Agent Orange Victim Compensation Program.

In April 2010, Mr. Feinberg was appointed by the Obama Administration to oversee compensation of victims

of the BP oil spill in the Gulf of Mexico. Most recently, Mr. Feinberg has served as Administrator of the New York Archdiocese Independent Reconciliation and Compensation

Program, the OneOrlando Fund, the GM Ignition Switch Compensation Program, and the One Fund Boston Victim Relief Fund.

Mr. Feinberg graduated cum laude

Save the

Date!

NCBADOMUS OPEN

MondayJune 18, 2018

Eisenhower“The Red”

Details coming soon!

The Dinner Dance JournalThe commemorative Dinner Dance Journal, with bios of the evening’s hon-orees, is a treasured keepsake for the honored guests. It not only lists all the Dinner Dance Sponsors and supporters of the evening, but includes thoughtful Journal ads from family, friends, law firms and businesses offering congratulatory messages for the honorees’ milestone achievements.Pay tribute to the honored guests and the Bar Association by placing an ad in the Dinner Dance Journal. For details on how to be a Sponsor of the Dinner Dance or take an ad in the Journal see page 24 in this paper or contact Special Events at (516)747-4070 or [email protected]

By Valerie ZurblisNassau County Bar Association President Steven G.

Leventhal appointed Hon. Linda Mejias of Family Court as the first Chair and Hon. Maxine Broderick of District Court as the first Vice Chair of the new NCBA Diversity and Inclusion Committee, which was established by the Board of Directors at the January 9, 2018 meeting.

“Today we are enriched by the active participation of a diverse membership and an increasingly diverse Bar leadership. We want to encourage active participation with all members of the legal community,” Leventhal said. “It is not only the right thing to do, but the future of the Bar Association depends on our inclusion of groups that were previously underrepresented.”

This is the third new committee approved by the Board this year. The LGBTQ and Mental Health Law Committees were unanimously approved last September.

The formation of this latest committee was an idea suggested by Judge Mejias, who also serves on the Board of Directors. “Most of us can agree that diversity in our Bar Association is not just desirable but absolutely

See RECIPIENT, Page 9

Kenneth R. Feinberg, Esq.Recipient of the 2018 NCBA

Distinguished Service Medallion

Kenneth R. Feinberg, Esq.

See COMMITTEE, Page 9Hon. Maxine Broderick

Hon. Linda Mejias

Nassau Lawyer n February 2018 n 3

Personal Injury/Workers Compensation Law

Important Ethical Rules in Handling Tort CasesThe following is a review of some of

the important ethical requirements the Rules of Professional Conduct applica-ble to attorneys representing plaintiffs or defendants in handling negligence cases. This article does not intend to cover every applicable ethical rule and, if you have a special concern, question, or potential problem, you

should not hes-itate to contact the Committee on Professional Ethics of the Nassau County Bar Association or that of the New York State Bar Association for advice or formal opinion applica-ble to your situa-tion. The full text of the code can be found in the

cumulative supplementary pamphlet of Book 29 of the Judiciary Law, which is part of McKinney’s Consolidated Laws of New York annotated and also in 22 NYCRR §1200.0. These rules were adopted by the Appellate Division and replaced the prior disciplinary rules. In general, they are based on the ABA Model Rules of Professional

Conduct. The Comments following each rule were not adopted by the Appellate Division, but were issued by the New York State Bar Association to provide guidance to attorneys in com-plying with the rules. The rules control if there is any conflict with the pream-ble, scope or comments to the rules. As noted in Comment [6] to the preamble, the “Comments do not add obligations

to the rules, but provide guidance for practicing and compliance with the Rules. The Rules state the minimum level of conduct below which no lawyer can fall without being subject to disci-plinary action.” As noted in Comment [11], the “failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disci-plinary process.”

Division of fees is controlled by Rule 1.5. Comment [7] notes that, “A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well.” The Rule permits lawyers to divide a fee “either on the basis of the proportion of services they render or if each lawyer assumes the responsibility for the representation as a whole in a writing given to the client.” This covers contingent fee arrangements as well. Comment [7] notes, joint responsibility for the rep-resentation entails both financial and ethical responsibility as if the lawyers were associated in a partnership. Care should be exercised to refer a matter only to a lawyer who the referring law-yer reasonably believes is competent to handle the matter.

McKinney’s also contains an exten-sive practice commentary by Patrick M. Connors. Another valuable guide to these rules is Simon’s New York Rules of Professional Conduct Annotated.

Initial ConsiderationsRule 1.10(e) requires law firms of all

sizes to avoid conflicts of interest and check proposed engagements against current and previous engagements.

Kenneth J. Landau, Esq.

See ETHICAL, Page 14

4 n February 2018 n Nassau Lawyer

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

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Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright ©2015. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

The Official Publication of the Nassau County Bar Association15th & West Streets, Mineola, N.Y. 11501Phone (516) 747-4070 • Fax (516) 747-4147

www.nassaubar.orgE-mail: [email protected]

Nassau LawyerNassau Lawyer

NCBA OfficersPresidentSteven G. Leventhal, Esq.President-ElectElena Karabatos, Esq.Vice PresidentRichard D. Collins, Esq.TreasurerDorian R. Glover, Esq.SecretaryGregory S. Lisi, Esq.Executive DirectorKeith J. Soressi, Esq.

Editors-in-ChiefRhoda Y. Andors, Esq. Anthony J. Fasano, Esq.ProofreaderAllison C. Shields, Esq.Editor/Production ManagerSheryl Palley-EngelAssistant EditorValerie ZurblisPhotographerHector Herrera

February Editorial StaffPersonal Injury/Workers Compensation LawKenneth Landau, Esq. Focus EditorNaela Hasan Asst. Focus EditorRhoda Y. Andors, Esq.Christopher J. DelliCarpini, Esq.Anthony J. Fasano, Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.Tammy Smiley, Esq.

Upcoming Focus IssuesMarch 2018 Elder Law/Trusts & EstatesApril 2018GeneralJune 2018Health Care/ Intellectual Property

Committee MembersRhoda Y. Andors, Esq., Co-ChairAnthony J. Fasano, Esq., Co-ChairDeborah S. Barcham, Esq.Gale D. Berg, Esq. Wahida Bhuyan, Esq.Deanne Marie Caputo, Esq.David Z. Carl, Esq.Ellin Regis Cowie, Esq.Christopher J. DelliCarpini, Esq.Marc G. DeSantis, Esq.Nicole A. Donatich, Esq.Nancy E. Gianakos, Esq.Robert S. Grossman, Esq.Mary E. Guararra, Esq.Adrienne Flipse Hausch, Esq.Naela HasanCharles E. Holster III, Esq.George M. Kaplan, Esq.Patricia A. Kessler, Esq.Richard B. Klar, Esq.Kenneth J. Landau, Esq.Robert D. Lang, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Nicole Lubell, Esq.Randa D. Mahar, Esq.Cheryl Y. Mallis, Esq.Angelica M. McKessy, Esq.Daniel McLane, Esq.Jeff H. Morgenstern, Esq.Anmol NadkarniMichal E. Ovadia, Esq.Alissa K. Piccione, Esq.Marian C. Rice, Esq.Allison C. Shields, Esq.Natasha Shishov, Esq.Tammy Smiley, Esq. David Torreblanca, Esq.James W. Versocki, Esq.

Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to our membership. 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.

After five years of dedicated service, Keith Soressi has accept-ed an offer to serve as Executive Director of the Connecticut State Bar Association. While here, Keith ushered in a new level

of professionalism in management, achieving operating efficiency with limited resources and, by his unself-ish example, nurtured espirit de corps among the staff. Keith’s contributions have often gone unnoticed because he did not seek recognition. However, every decision that I have made as President was made in consultation with Keith. His legacy will be a stronger foundation as we face future challenges and undertake the work ahead. We wish Keith and his family every success and happiness in the future.

The task of finding a new Executive Director has begun. Past President Marian Rice has graciously agreed to chair a search committee comprised of President-Elect Elena Karabatos, Past-Presidents Marc Gann, Peter Levy,

Peter Mancuso, and John McEntee, and our delegate to the State Bar Association, Elizabeth Pessala. I will also serve on the committee. In the meantime, I am grateful to staff members Sheryl Palley-Engel and Jennifer Groh for agreeing to serve as Co-Interim Executive Directors. With their leadership, and the support of our dedicated staff, we will continue to be in good hands.

THANK YOU DEPUTY SPEAKER HOOPERIn 1929, the Association purchased the land that is now

its home for a price that consumed nearly its entire treasury, $12,050. Ground was broken the following year, and the original portion of Domus, including the Great Hall, was constructed at a cost of $52,200. The Tudor style building, based on the traditional designs of London’s “Inns of Court,” was dedicated in 1931, and the first “Toast to Domus” was delivered by future Association President, and future Presiding Justice of the Second Department, Hon. Marcus Christ. Expansion of Domus would follow.

Last year, we commenced much needed renovations to our venerable home, including replacement of the slate roof and additions to the sprinkler system. The construction was mostly funded by a loan in the amount of $1,500,000. Yet more work is needed to comply with current building and fire prevention codes, and to complete the current phase of our multi-year pro-gram of renovation and maintenance. Even with the generous contributions made to the Steven J. Eisman Memorial Building Fund, we were without the capital reserves necessary to com-plete the project.

I am pleased to announce that, thanks to the efforts of Deputy Speaker Earlene Hooper, we have been approved for a Community Capital Assistance Program Grant from the New York State Assembly in the amount of $150,000. We are grateful to Deputy Speaker Hooper, and to her counsel, Past-President Lance Clarke, for helping to ensure that Domus will continue to be the center of the many programs and activities that increase our members’ skills and serve the community.

ADVICE TO NEW LAWYERSThe New Lawyers Committee continues to be a vibrant

resource for the members that represent the future of the profes-sion and of the Association. Under the leadership of Co-Chairs John Stellakis and Jamie Rosen, and Vice-Chair Steven Dalton, the committee presents programs, organizes social events, and hosts the popular judicial networking luncheons.

Our system of justice is a dynamic partnership between the bench and the bar. The spirit of collegiality that we value at Domus must be nurtured not only among attorneys, but also with our colleagues on the bench. This advances the professional development of our members and ultimately serves to improve the administration of justice. We are grateful to our judges for their support of this valuable program.

In considering my own professional development, I have come to believe that there is no such thing as wasted effort. Efforts that might at first seem to produce no direct benefit often prove valuable in ways that are unanticipated and at times that cannot be predicted. Each early professional experience is a deposit into an account that we draw upon for the rest of our careers. New lawyers should be sponges, soaking up experience

at every opportunity. There is much to learn. There is more to the practice of law than substance and procedure. As active members of the Association, we learn from the style and profes-sionalism of our colleagues.

The practice of law offers diverse rewards. Some lawyers seek financial gain, others intellectual stimulation or pride in public service. Whatever your personal goals may be, best wishes for a long and rewarding career.

LINCOLN’S ADVICE TO LAWYERSWhile we are on the subject of advice, Lincoln had the follow-

ing advice for lawyers in 1850. It is still useful today.I am not an accomplished lawyer. I find quite as much

material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stop-ping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not. Extemporaneous speaking should be practised [sic] and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one [sic], upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to com-promise whenever you can. Point out to them how the nom-inal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exor-bitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessar-ily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

FAREWELL TO A FRIEND

From the President

Steven G. Leventhal



When shareholders of a New York corporation are fighting with one anoth-er thoughts often turn to judicial disso-lution. The standards applicable to judi-cial dissolution of business corporations

are well known: deadlock in the case of 50/50 own-ers under Sec-tion 1104 of the Business Corpo-ration Law, and oppressive con-duct in the case of shareholders owning at least 20% under BCL § 1104–a. Such shareholder dis-putes lend them-selves to resolu-

tion by means of a buyout, particularly in light of the election provided in BCL § 1118 to buy out the minority share-holder for fair value.

Dissolution of LLC Often an Unachievable Remedy

Section 702 of the LLC Law permits a court to order dissolution when “it is not reasonably practicable to carry on the business in conformity with arti-cles of organization or operating agree-

ment.” In Matter of 1545 Ocean Avenue, LLC, a decision written by former Commercial Division Justice Leonard B. Austin, the Second Department held that in order to obtain dissolution under Section 702, “the petitioning member must establish, in the context of the terms of the operating agree-

ment or articles of incorporation, that (i) the management of the entity is unable or unwilling to reasonably per-mit or promote the stated purpose of the entity to be realized or achieved, or (ii) continuing the entity is financially unfeasible.”1

Since then the focus in limited liability dissolution cases has been upon the contractual language in the operating agreement, rather than the standards of the Business Corporation Law. In 1545 Ocean Avenue the two 50/50 members were at deadlock with regard to various construction issues in their single asset real estate enti-ty. The court pointed out, however, that the operating agreement did not require the unanimous agreement of the two member managers. Rather, either member was authorized to act unilaterally as a managing member. Dissolution is a drastic remedy, said the court, and the petitioner had not shown that it was not reasonably prac-ticable to carry on the business of the company in accordance with the articles of organization or operating agreement.

The strict interpretation of Section 702 with respect to the standards for dissolution enunciated in 1545 Ocean Avenue continue to be followed. For example, in Goldstein v. Pikus Justice Ramos denied dissolution, notwith-standing allegations of deadlock and breach of fiduciary duty with respect to the renting of apartments in the build-ing owned by the LLC by one of the

Using Cash-Out Mergers to Resolve LLC Member Disputes

Thomas J. McNamara

See MERGERS, Page 21



Extraordinary Expenses: A Unique Limitations Rule for a “Unique” Claim

Under a claim for extraordinary expenses or “wrongful birth,” parents may sue for the costs of raising a disabled child who, but for a physician’s negli-

gence in failing to detect impairment or warn of the risk, would not have been born. In B.F. v. Reproductive Medicine Associ-ates, the Court of Appeals recent-ly held that such claims accrue not with the alleged malpractice, but with the child’s birth1

This decision will protect some plaintiffs whose claims would otherwise be time-barred. By improvising a judicial exception to the rules on limitations of actions, however, this decision may raise more questions than it answers.

Becker: a Cause of Action Is BornThe extraordinary expenses claim

was only first recognized in 1978 in two companion cases known as Becker v. Schwartz.2 In each, parents sued their respective obstetricians for failing to alert them to the particular risks each faced of conceiving children with genetic defects—in one case Down’s Syndrome and the other polycystic kid-ney disease.

The parents sued on behalf of their children but also on their own behalf for pecuniary expenses in raising the children, emotional injuries, and loss of services.3 The Court of Appeals reject-ed all claims except the parents’ claims for expenses:

Unlike the causes of action brought on behalf of their infants for wrongful life, plain-tiffs’ causes of action, also found-ed essentially upon a theory of negligence or medical malprac-tice, do allege ascertainable damages: the pecuniary expense which they have borne, and in Becker must continue to bear, for the care and treatment of their infants.4

The Becker court did not have occa-sion to address, however, just when this cause of action accrues. CPLR 214–a provides that medical malprac-tice actions generally accrue “within two years and six months of the act, omission or failure complained of.” This would suggest, though, that extraor-dinary expenses claims accrue when the physicians commit the alleged malpractice, that is, at conception or implantation of an embryo—long before the parents even have a child to raise, perhaps even longer before a genetic abnormality manifests.

The Court of Appeals subsequently offered some guidance in LaBello v.

Albany Medical Center, holding that “a cause of action for medical malprac-tice premised on faulty prenatal care and consequent injuries accrues at live birth.”5 In LaBello, however, the moth-er sued on behalf of her infant son for injuries sustained in utero; the limita-tions period could not begin until birth, the court held, when the plaintiff came into existence.6

Nevertheless, subsequent Appellate Division decisions relied upon LaBello to hold that a parent’s extraordinary expenses claim does not accrue until the child is born.7 As this rule came from intermediate appellate decisions, however, its status was always depen-dent upon a definitive statement from either the Legislature or the Court of Appeals. The latter spoke first.

B.F.: a Malpractice Action That Does Not Accrue with the MalpracticeB.F. consisted of two related cases

where parents alleged that their fer-tility clinic was negligent in failing to screen their egg donors for the Fragile X trait, a chromosomal abnormality that can result in intellectual disability and other defects. Defendants, citing CPLR 214–a, argued that the claims accrued from when they implanted the embryos, which would have made them time-barred.8

The trial court held that the claims accrued at birth, and were therefore timely. The First Department agreed, but certified the question to the Court of Appeals, which affirmed, though not without dissent.9

The majority found that the “unique circumstances” of claims for extraor-dinary expenses required that, CPLR 214–a notwithstanding, such claims accrue upon the birth of an infant with the disability. The claim is that but for the alleged negligence the parents would not have conceived, and the inju-ries alleged are the expenses incurred in caring for and treating the child. Therefore, the court held, “Prior to a live birth, it is impossible to ascertain whether parents will bear any extraor-dinary expenses.”10 The court saw its holding as a reasonable accommoda-tion for both sides:

This date appropriately balanc-es the competing statute of lim-itations policy concerns—it gives parents a reasonable opportu-nity to bring suit while at the same time limiting claims in a manner that provides certain-ty and predictability to medical professionals engaged in fertility treatment and prenatal care.11

Judge Garcia in dissent, however, found nothing in these circumstances so unique as to require a unique lim-itations rule. The claim here—that but for the malpractice, the parents would not have conceived the child—did not require a live birth, nor did Becker limit

Christopher J. DelliCarpini

We take pride in honoring the NCBA members who are celebrating their

50, 60 and 70 year anniversary of admission to the Bar.

2018 Distinguished Service Medallion Recipient

Kenneth R. Feinberg, Esq.Leading expert in Mediation and Alternative Dispute Resolution

Served as Special Master of the September 11th Victim Compensation Fund

Join us on Saturday, May 12, 2018 at the

119th Annual Dinner DanceLong Island MarriottUniondale, New York

Invitations Mailed in March$195 per person

To take an ad in the

Dinner Dance Journal

see page 24 in this issue or contact Special Events (516)747-4070 or

[email protected]

Mindfulness Yoga WorkshopWould you like to feel less stressed and more relaxed?

Mindfulness yoga helps to quell anxiety, reduce stress, aid relaxationand facilitate health and well-being.

You will learn ways to bring this practice into your daily life.

The NCBA’s Lawyer Assistance Program is pleased to invite members to participate in this eight (8) Week Mindfulness Yoga Workshop.

Wednesdays February 28 thru April 25, 2018

(no class March 28)

5:30-6:45 p.m.$120 workshop fee

I race out of my office at 5 p.m. to get to my yoga class.

I am all stressed out - until I get there...then everything changes.

The level of relaxation is amazing. -Warren S. Hoffman

Mindfulness is for everybody, flexibility irrelevant.

Instruction will be provided by Edith Jason, a Kripalu Certified Yoga Teacher.

Edith has been teaching Yoga for 30 years.

ENROLLMENT IS LIMITED - ACT NOW!

Classes held in the lower level President’s Room at the Nassau County Bar Association.

Please contact Beth Eckhardt at [email protected] or (516)747-4070

See EXPENSES, Page 18



No-Fault Arbitration vs. LitigationSection 65-3.2(a) of the New York Codes, Rules

and Regulations (NYCRR) for Insurance Law states, “[h]ave as your basic goal the prompt and fair pay-

ment to all automobile accident victims.”1 Thus, the main pur-pose of New York’s no-fault law is to make sure that a party injured in a motor vehicle acci-dent is swiftly compensated for his or her basic econom-ic loss.2 Injured parties have two options to choose from in obtaining compensation: arbi-tration and litigation. The pur-pose of this article is to provide a brief description of no-fault insurance law and to discuss the benefits of no-fault arbitra-tion as compared to litigation.

The TimelineFirst, it is necessary to understand the timeline of

a no-fault claim. Under the Insurance Law § 5106(a) and the NYCRR, § 65.15(g)(3), no-fault benefits must be paid or denied within thirty days after receipt of a proof of claim.3 A proof of claim can be in the form of an assignment of benefits form, a verification of treatment form, or a proof of mailing form.4

If need be, the insurer may request additional verifi-cation of the claim within ten business days of receipt of the claim.5 The insurer must then allow thirty days to pass for the submission of the requested verification.6 If the verification is not submitted in that time, then the insurer may request additional verification from the applicant.7 In the event the verification remains outstanding, the insurer then has the option to deny the claim for failure to comply with the verification requests.8 If, however, the verification is timely sub-mitted by the applicant, the insurer must either pay or deny the claim within thirty days from the date of receipt of verification.9 The consequence of not paying or denying the claim will result in the insurer paying two percent interest compounded per month.10

Medical NecessitySecond, it is important to note that the crux of a

no-fault claim is to prove the medical necessity of services rendered to the injured party in order to determine eligibility for reimbursement. In Metroscan Imaging v. Am. Transit Ins. Co.,11 the court discussed how to establish a prima facie case of medical necessi-ty for no-fault benefits. While the court in Metroscan found that the prima facie burden was met with the submission of an assignment of benefits form, a verifi-cation of treatment form and a proof of mailing form,12 it also went on to state that “the only obstacles to a grant of summary judgment in plaintiffs’ favor in the instant motions are the objections involving lack of cov-erage, timely denials, the absence of back up documen-tation to support some of the claims, and the sufficiency of some of the back-up documentation.”13 The court also, however, emphasized that there is no bright line rule as to what establishes a prima facie case.14 This indicates that the determination of what constitutes a prima facie case of medical necessity is left solely to the discretion of the court.

DefensesNext, a discussion of the defenses reveals that aside

from procedural defenses, there are two other major categories of defenses: policy violations and coverage. In the seminal case of Zappone v. Home Ins. Co., the New York State Court of Appeals distinguished between coverage and policy violations and held that an insurer is not obligated to timely disclaim or deny claims based on lack of coverage.15 The court reasoned that it would be unfair to hold an insurer responsible for a motor vehicle accident claim when there is no policy in force on the date of accident.16 Thus, where there is a policy in place on the date of accident, and the claimant fails to abide by it, there is grounds for a pol-icy violation defense. Where there is no policy in place on the date of the accident, lack of coverage is a defense.

Aside from policy violations and coverage, workers’ compensation is also a common defense. While in most arbitration hearings a workers’ compensation defense can evade the thirty-day preclusion rule (it can even be raised on the day of an arbitration hearing),17 the

court in Metroscan held that a workers’ compensation defense is not an exception to the thirty-day preclusion rule.18 This is one of the many examples in which arbi-tration proves to be a better choice in resolving no-fault disputes, as the determination of a workers’ compensa-tion case is left to the Workers’ Compensation Board, thereby avoiding the uncertainties that may arise in litigating in the courts.

Section 5106(b) of the Insurance Law further states: “[e]very insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) hereof to arbitration pursuant to simplified procedures to be pro-mulgated or approved by the superintendent.”19 Thus, while a claimant has the choice between arbitration and litigation, arbitration is often the first choice.

ArbitrationThe Court of Appeals, in its decision in Roggio

v. Nationwide Mut. Ins. Co.,20 listed the benefits of arbitration: it provides no-fault claimants with an opportunity for immediate redress and disputes can be resolved more swiftly and economically than in plenary suits.21 Furthermore, arbitration lessens the volume of automobile personal injury cases litigated in courts.22 However, the court explained that it did not want applicants to “be permitted to flit between forums for the resolution of issues or items of damage arising from a single injury.”23 Therefore, once a party has chosen between arbitration or litigation, it cannot then go back and forth between the two channels.

Contrary to the opinion in Metroscan, the majori-ty of AAA arbitrators require evidence of the nature of the accident, the level of impact upon the injured person, and the injuries sustained by the person. Not only this, but it is also a requirement to disclose the findings of any examination conducted prior to ren-dering services.24 This approach to resolving no-fault disputes is quite effective, as it takes into consideration the uniqueness of each claim. Furthermore, arbitra-tion does the job of keeping out ineligible claims from courts. However, the problem arises when arbitrators run the risk of overlooking subtle nuances in the evi-dence presented, leading to an unfair decision.

Most recently, in Countrywide Ins. Co. v. Radiology of Westchester, P.C., the Appellate Division reversed an arbitration decision affirming an arbitrator’s award of no-fault benefits.25 The court reasoned that “[t]he master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evi-dence establishing that the assignor failed to appear at the three scheduled examinations under oath.”26 A failure to appear for an examination under oath is a policy violation. As such, an insurer must show that it has honored its own policy by providing proof of mailing (often the examination under oath appointment letters)

addressed to the correct recipient and indicating the date of the examination on two separate occasions.27 Proof must also be provided of the party’s failure to appear.28 Since there are few facts afforded in this case, it is likely that the decision reached in the original arbitration award focused more on the establishment of a prima facie case of medical necessity than the policy violation defense. This case is an excellent example of when litigation may be useful to iron out defective arbi-tration awards, or vice versa, defective denials.

The problem with litigation, however, is that if courts were left to decide no-fault claims, it would result in delays and unpredictability. It is no secret that litigation is the most costly and time-consuming of the two methods. While the AAA operates on a pat-tern set by its own decisions, courts struggle to find common ground, as there is no clear definition on what establishes a prima facie case of medical necessity. It is important to stick to the spirit of Insurance Law § 5106(a), which is to provide prompt compensation to injured parties in motor vehicle accidents. Thus, while arbitration is indeed the swiftest method of obtaining compensation, litigation is still there to ensure that justice is not lost in the process.

Naela Hasan is an Associate Attorney at American Transit Insurance Company. She is a recent graduate of St. John’s University School of Law, Class of 2017.

1. 11 NYCRR § 65.3-2(a).2. Ins. Law § 5106(a) (McKinney 1985); 11 NYCRR 65.15(g)(3).3. Id.4. Metroscan Imaging v. Am. Transit Ins. Co., NYLJ, 12/10/99, p. 27, col. 5 (N.Y. Civ. Ct. N.Y. Co.).5. 11 NYCRR § 65.15(d)(2).6. Id.7. 11 NYCRR § 65.15(e)(2).8. 11 NYCRR § 65.15(g)(2)(iii).9. 11 NYCRR § 65.15(g)(1)(i).10. 11 NYCRR § 65.15(h)(1).11. Metroscan Imaging, NYLJ, 12/10/99, p. 27, col. 5.12. Id.13. Id.14. Id.15. Zappone v. Home Ins. Co., 55 N.Y.2d 131, 135-37 (1982). 16. Id.17. Arbitrator Nathan Ritzer, Pitfalls of No-Fault Arbitration, American Arbitration Association Educational Seminar, October 28, 1999.18. Metroscan Imaging, NYLJ, 12/10/99, p. 27, col. 5.19. Ins. Law §5106(b). 20. Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 (1985).21. Id. at 264. 22. Id.23. Roggio, 66 N.Y.2d at 263. 24. Ins. Law § 5102(a)(1); 11 NYCRR § 65.15(g)(6); 11 NYCRR § 65.15(m)(1); 11 NYCRR § 65.17(b)(5)(xiv).25. Country-Wide Ins. Co. v. Radiology of Westchester, P.C., 147 A.D.3d 652 (1st Dept. 2017).26. Id.; see also Hertz Corp. v. Active Care Med. Supply Corp., 124 A.D.3d 411 (1st Dept. 2015); Easy Care Acupuncture P.C. v. Praetorian Ins. Co., 49 Misc 3d 137[A] (App. Term. 1st Dept. 2015). 27. Hertz Corp., 124 A.D.3d at 411. 28. Id.

Naela Hasan



A Primer on Preparing for Personal Injury MediationAs with everything we do in the

practice of law (and life), preparation is the key to a successful outcome of the personal injury mediation. Preparation for mediation is multi-faceted. Prepa-ration for mediation is not just reading the file notes, throwing together a few notes, coming up with a demand for set-tlement and telling the client to meet you at the mediation venue. Attorneys

and parties com-ing to mediation must remember that the principle purpose of medi-ation is to reach a final and binding settlement. With that purpose in mind, there must be an attitudinal adjustment—me-diation is not a winner-take-all milieu; counsel and the client

must be prepared to make concessions in order to reach a resolution. The “arms folded across the chest” body lan-guage dooms the mediation to failure.

Issues Peculiar to Plaintiff’s Counsel For the attorney representing the

personal injury plaintiff, preparation for mediation presents challenges that are different from those faced by the attorney representing a defendant, es-pecially where there is insurance cov-erage providing defense and indemnity for the defendant. In most instances, where there is defense and indemnity, the defendant does not play a signifi-cant a role in the process because in-surance policy permits the carrier to settle the case within the policy limits absent consent. Ordinarily, defense counsel will be communicating with experienced claims personnel. In those circumstances, the need to “educate” the claims examiner about the process is not present. Of course, if there is a consent policy and or there is a self-in-sured retention, the education of the defendant is no less significant than educating the plaintiff.

The personal injury plaintiff must be informed that counsel recommends submitting the matter to mediation. The client’s consent to the mediation must be obtained. Counsel must ex-plain the process and why mediation is a good alternative to continuing the litigation—risk avoidance, prompt res-olution, less expensive and no harm if the matter does not settle; indeed, even in the absence of settlement, the dis-cussions at mediation may be illumi-nating.

In advance of the mediation there must be frank discussion of the strengths and weaknesses of the case. Of course, this can be a tightrope for plaintiff’s counsel—the weaknesses must be presented in a manner that does not allow the client to conclude that counsel does not believe in the merits of the case. Counsel must avoid presenting the case in such a way that the client starts shopping around for new counsel. This discussion is about managing the client’s expectations in order to allow counsel to make a rec-ommendation to the client of an ac-ceptable settlement range. Toward that end, counsel should be prepared to discuss the impact of any liens on

the file as well as the disbursements advanced by the attorney. When it gets down to talking dollars and cents, the client wants, and is entitled, to know the “bottom line.”

Counsel should explain the role of the mediator as well as the mediator’s background. Counsel should have the client present at the mediation and be prepared to introduce the client to the mediator. As the mediation goes along, counsel should assess whether a res-olution will be fostered by having the mediator speak with the client—de-pending on counsel’s assessment of the client, this may take place early in the process or later to help get the client’s consent to the offer. Giving the client the opportunity to be heard gives the client a stronger sense that he or she has fully participated in the process and may very well be what is needed to close the deal. There are many occa-sions where the client can benefit from an objective assessment from the medi-ator—this is why it is important for the client to be informed of the neutral role of the mediator—as well as the medi-ator’s experience. The client should be informed that he or she will be asked to sign the post-mediation settlement agreement if the matter is resolved.

Preparing the Premediation Statement

All counsel are encouraged to pre-pare a premediation statement and to submit same sufficiently in advance to permit the mediator to review it in advance of the mediation. The pre-mediation statement should be orga-nized with care and for the purpose of highlighting the strengths of the case. There must be an evaluation of wheth-er the premediation statement will be shared with adverse counsel. While exchanging premediation statements with your adversary is a good way to open a dialogue, mediators understand the hesitancy to do so. That is a matter that should be worked out in advance with adverse counsel. What is more im-portant than the exchange of the pre-mediation statement is that there has been an exchange of all information that the opposing side needs to fully evaluate the case. For the plaintiff, that means that the medical exchange and the lien information are current. If there is a medical condition or surgical procedure that impacts the valuation

of the case, or if there is worker’s com-pensation lien or a funding loan that impacts the prospects for settlement, it is imperative that plaintiff’s counsel has given defense counsel disclosure of that information in time to permit a reevaluation of the case with the in-surance claims personnel. For defense counsel, there should be an exchange of the IME and CPLR 3101(d) expert witness information that counsel in-tends to rely on at the mediation. Also, if there are insurance coverage issues that will impact the prospects for set-tlement, defense counsel should inform plaintiff’s attorney. If coverage counsel cannot be present or available by tele-phone, postponing the mediation until the issue is resolved may be a prudent course to follow.

The mediation statement should include a succinct recitation of the facts supported by exhibits. Discuss the strengths and weaknesses of your case. Mediators understand that coun-sel may be hesitant to put concessions in writing. Rest assured, if your medi-ation statement is submitted in con-fidence, that information will not be disclosed. Nevertheless, even absent such a discussion in the premediation statement, counsel should be prepared to discuss the weaknesses of the case at the mediation. An honest assessment of the weaknesses goes a long way to-ward establishing credibility with the mediator and permits opposing counsel to conclude that you are negotiating in good faith. If there are significant issues of law involved, then a discus-sion with appropriate citations is in or-der. If the damages are of a sufficient magnitude, then citations to appellate authority, jury verdicts and reports of settlement should be included. Finally, the mediation statement should refer-ence the status of prior negotiations, if any.

As to the exhibits to be included, be judicious. The “kitchen sink” method is not helpful. If there is a portion of an examination before trial that is helpful to your position, quote the excerpt in your narrative and attach the relevant pages. Similarly, if there are entries in the medical records that counsel would like to bring to the mediator’s atten-tion, then reproduce those pages—do not hesitate to use a highlighter to more readily bring the entry to the me-diator’s attention. Attaching an entire

EBT transcript or reams of physical therapy notes or hospital records does nothing to inform the mediator. Attach only those exhibits that will inform the arbitrator of your position.

Frequently, there are cases where defense counsel has done a social media investigation or there is a surveillance of the plaintiff that is damaging. If this is information that defense counsel and the claims examiner rely on to inform their evaluation of the case and intend to present to the mediator at the con-ference, but have not, for strategic pur-poses, disclosed the information, they must consider whether at some point in the mediation the information will be shared with plaintiff’s counsel. There are times where this disclosure is what is necessary to move the mediation to a resolution. Anticipating strategic de-cisions involving disclosure is part of being properly prepared.

To be sure, the personal presence of the claims examiner is no less im-portant than the presence of the plain-tiff. However, mediators understand that many claims personnel work out of state and the expense of traveling to the mediation may not be justified. Nevertheless, preparation in terms of advising the claims examiner of the date and time of the mediation, and the need to be able to communicate by telephone, including cell phone, cannot be overemphasized.

ConclusionPreparation is the key to successful

mediation. Preparation includes an ob-jective assessment of the case, making sure that the client is fully informed of the objective and the process, that strategic decisions have been discussed with the client or claims examiner, as the case may be, and that the media-tor has been presented with a succinct statement of the party’s position. These are the main tasks to be accomplished prior to attending a mediation.

The Hon. Peter B. Skelos (Ret’d J.S.C.) is a partner in the law firm of Forchelli Deegan Terrana LLP and a neutral mediator and arbitrator with National Arbitration and Mediation. He was voted a top ten mediator and arbitrator in the New York Law Journal Annual Reader’s Survey and named a Super Lawyer in appellate practice. Justice Skelos is a member of the Board of Directors of the Bar Association of Nassau County and past co-chair of the We Care Advisory Board.

Hon. Peter B. Skelos



The 2017 Roller Coaster Ride in New York Workers’ Compensation

Whew! A wave of fits and stops in reg-ulatory reform at the New York Work-ers’ Compensation Board did not end

until the last min-ute on December 28, 2017. New Board Chair Clar-issa M. Rodriguez announced adop-tion of new Schedule Loss of Use (SLU) Med-ical Impairment Guidelines.1 The new guidelines took effect on Jan-uary 1, 2018.

W o r k e r s ’ Compensat ion

Law §15(3)(x), enacted as part of the 2017 executive budget in April 2017, called upon the Board to implement new Permanency Impairment Guidelines for Scheduled Loss of Use (SLU) evalua-tions, with an effective date of January 1, 2018. Specifically, the Workers’ Compensation Board was tasked to cre-ate new medical impairment guidelines for schedule loss of use awards that are “reflective of advances in modern medi-cine that enhance healing and result in better outcomes” through consultation with “representatives of labor, business, medical providers, insurance carriers, and self-insured employers.”2

This legislation was heavily lobbied for in Albany by the New York State Business Council which claimed that rising workers’ compensation premi-ums were a huge cost driver for New York businesses. Predictably, injured workers and their advocates took the position that any change to the exist-ing law would drastically harm injured workers and that rising workers’ com-pensation premiums were caused by premium increases to boost insurance company profits. The battle lines were drawn.

The Workers’ Compensation Board’s SLU guidelines typically assign a per-manent percentage loss of use3 for an extremity injury—such as a rotator

cuff tear, ACL tear, fractured bone, joint replacement or carpal tunnel syndrome—to reflect the impact on the worker’s functional loss of use of a specific body part. In many cases, additional percentages were added to the overall percentage for loss of range of motion or other deficits. These “per-centage loss of use” determinations were then converted into a financial award based upon a statutory chart of weeks of compensation multiplied by a worker’s average weekly wage. This resulted in a final tax-free cash award to the injured worker.

On September 1, 2017, the Workers’ Compensation Board issued its first draft of new permanency guidelines for schedule loss of use awards. For injured workers, these new guide-lines were a devastating body blow. They would almost eliminate a per-centage loss of use finding in all but the most catastrophic injuries. They would severely cut back, if not com-pletely eliminate, any financial awards for permanent orthopedic injuries to extremities such as shoulders, arms, hands, legs, knees and feet. Finally, the Workers’ Compensation Board’s proposed guidelines were devoid of any evidence that they adhered to the Legislature’s statutory task to create new medical impairment guidelines for schedule loss of use awards that are “reflective of advances in mod-ern medicine that enhance healing and result in better outcomes.” The Board simply ignored this direction from the Legislature. Publication of the first draft of the new permanen-cy guidelines in the State Register commenced a 45-day comment period which expired on October 23, 2017.

The September 1, 2017, proposed SLU guidelines created a new para-digm for evaluating extremity inju-ries. Rather than focus final awards of compensation upon lack of perma-nent functional use, the new purposed guidelines favored an initial diagnosis award system heavily stacked against injured workers. For instance, the new

September proposed guidelines could result in a finding of no permanent injury for a “total knee replacement”! It was ludicrous and completely unable to be substantiated by any reputable orthopedic surgeon.

Starting almost immediately after September 1, 2017, advocacy groups for injured workers, including the New York Workers’ Compensation Alliance, the New York State Trial Lawyers’ Association, the New York State AFL-CIO, the New York Committee for Occupational Health and Safety, and the New York Workers’ Protection Coalition launched an aggressive cam-paign to get injured workers to submit comments on the new proposed guide-lines to the Workers’ Compensation Board.

Injured workers and their advo-cates ended up sending the Workers’ Compensation Board close to 100,000 postcards during the comment period objecting to the new SLU permanency guidelines. In addition, injured work-ers used the state electronic regulatory public comment system to send addi-tional objections. They emailed their state senators and assemblymen ask-ing for support and intervention to stop the monumental anti-worker changes. They used online social media such as Facebook and Twitter to get the word out to object to the new guidelines.

Importantly, the New York State Assembly Standing Committee on Labor held sometimes contentious hearings grilling representatives of the Workers’ Compensation Board and New York State Business Council on the need for such drastic anti-work-er “deforms.” Assemblyman Harry B. Bronson (D-Rochester) was particu-larly helpful in articulating why the Workers’ Compensation Board should not adopt the September 1, 2017, draft guidelines. Videos of Assemblyman’s Bronson’s forceful advocacy for injured workers went viral within the workers’ compensation community.

The formal comment period of the first draft of the new SLU permanency

guidelines ended on October 23, 2017. It is fair to say that no other regula-tory workers’ compensation proposal in the last decades had sparked such controversy and action by competing interests in the New York workers’ compensation system. All interest par-ties, from the Workers’ Compensation Board, business groups, self-insured employers, and insurance companies had their say.

On November 22, 2017, the New York State Workers’ Compensation Board, under new Board Chair Clarissa M. Rodriguez, published a “revision to the proposed Permanent Impairment Guidelines” originally published September 1, 2017, and made it avail-able for public comment. To sum it up succinctly, almost all of the changes to the SLU permanency guidelines published on September 1, 2017, were eliminated. The new4 proposed guidelines were almost identical, with minor changes, to the old guidelines in effect prior to the September 1, 2017, proposed guidelines. The “new” (old) guidelines became effective January 1, 2018.

At the end of the wild 2017 work-ers’ compensation rollercoaster ride, injured workers returned a little weary, but largely unscathed.

Troy G. Rosasco is a partner with work-ers’ compensation and Social Security disability firm of Turley, Redmond, Rosasco & Rosasco, LLP with offices in Garden City and Ronkonkoma. He is an Adjunct Professor at St. John’s University School of Law, and currently Chairs the Suffolk County Bar Association Workers’ Compensation and Disability Law Committee.

1. 12 NYCRR § 325-1.6. 2. Workers’ Compensation Law §15(3)(x). 3. Workers’ Compensation Law § 15. 4. 12 NYCRR § 325-1.6.

Troy G. Rosasco

from the University of Massachusetts-Amherst with a B.A. in history in 1967, and from the New York University School of Law with a J.D. in 1970, where he was Articles Editor of the Law Review. He worked for five years as an administrative assistant and chief of staff for U.S. Senator Ted Kennedy and as a prosecutor for the U.S. Attorney General. In 1980 he was a founding partner of the Washington office of the law firm Kay Scholer LLP. Twelve years later he started his own firm, The Feinberg Group. Mr. Feinberg’s current firm is The Law Offices of Kenneth R. Feinberg, PC in Washington, D.C.

Among his many other accomplish-ments, Mr. Feinberg has had a distin-guished teaching career as an Adjunct Professor of Law at Harvard Law School, Georgetown University Law Center, the

University of Pennsylvania Law School, Columbia University Law School, New York University Law School and the University of Virginia Law School.

RECIPIENT ...

Continued From Page 1

critical to its survival,” she said. “We often talk about the specific ways that diversity can enrich our Bar Association and our pro-fession; however, talk is simply not enough. This is where ‘inclu-sion’ comes in and plays a crucial role in effectuating our goal to be a more diverse and robust Bar Association.”

“The goal of our Committee is to not only identify and dis-cuss the value in diversity, but to engage our existing members to take action to encourage new and diverse members to participate on all levels at Domus and ultimately develop a more inclusive leader-ship.”

Vice Chair Maxine Broderick added, “African American Harvard-educated attorney Verna

Myers has stated, ‘Diversity is being invited to the party; inclu-sion is being asked to dance.’ My hope for the Committee is to usher attorneys from many different backgrounds through the doors of Domus, and encourage them to remain by fostering a welcoming atmosphere and providing engag-ing programming and experienc-es.”

To participate in the Diversity and Inclusion Committee, or any other NCBA committee at no additional cost, simply sign up online at nassaubar.org or contact Stephanie Pagano in the Membership Department, 516-747-4070.

For more information about the Committee, contact co-chairs Judge Linda Mejias, (516)728-4543, [email protected] or Judge Maxine Broderick (516)512-8959, [email protected].

COMMITTEE ...

Continued From Page 1Dinner DanceThe Annual Dinner Dance is the crown-ing event of the “social calendar” of the Nassau County Bar Association and will be held at the Long Island Marriott, Uniondale, New York, on Saturday, May 12, 2018. In addition to the Distinguished Service Medallion recip-ient, those of our members who have been admitted to the Bar for fifty, sixty and seventy years will be honored as well. We hope you will join our celebra-tion when we pay tribute to all our hon-orees. INVITATIONS FOR THE DINNER DANCE WILL BE MAILED IN MARCH.For more information contact Special Events at (516) 747-4070 or email [email protected]



Keeping Wills Safe from AttackWill contests often make for good

conversation topics at cocktail parties. There is nothing like a bitter family dispute and a lot of money at stake to set the stage for a juicy drama and keep the audience in thrall. In the real world, however, will contests are awful. What was once a good, healthy relationship between a parent and child, two siblings, aunt and niece, and

so forth, is torn apart by suspi-cion, distrust, jealousy, pride, and other neg-ative emotions. Happy memories of a loved one are overshadowed by the painful experience of unending litiga-tion. The money that should have passed through the estate gets

frittered away by excessive legal fees. Often times it seems that only the litigators win in a will contest. For all these reasons it is imperative that estate planners do everything they can to avoid a will contest and pro-tect their client’s estate plan, starting from the moment the prospective client calls. Below are a range of practical strategies that estate planners should employ in any estate planning rep-

resentation where the will might be contested.

Develop a Solid Attorney-Drafter FileFrom the outset of the matter, the

attorney should be mindful that his entire file may be fully discoverable following the client’s death. Any party may examine the attorney-drafter before or after filing objections and is entitled to document discovery in conjunction with the deposition.1 The attorney-client privilege is waived in “any action involving the probate, validity or construction of a will,” thus requiring the attorney to “disclose information as to the preparation, execution or revocation of any will.”2 With that in mind, a number of prophylactic measures should be taken to ensure that the file is as complete and protective of the client’s testamentary desires as possible.

One such measure is to take comprehensive, contemporaneous notes during the drafting process. Where the client wishes to disinherit a distributee and/or provide unequally for various family members, the attorney should clearly document the client’s reasons for doing so. The attorney should write them up in his notes and collect any relevant, supporting documents, such as unpaid promissory notes and correspondence. This recommendation applies equally where the client makes a significant change

to the testamentary plan. The attorney should draft a file memo summarizing the pertinent background facts, the testamentary plan as agreed with the client, and explanations for any potentially controversial provisions. If and when the will that the attorney drafted is offered for probate and a disgruntled family member is potentially going to challenge the will, that file memo and notes might, under the right circumstances, head off a full will contest altogether.

The attorney should also consider documenting the reasons for controversial provisions within the will itself. If the client wants to disinherit a child because he is alienated from the child, the will should reflect that reason. A meaningless or non-existent explanation like “for reasons known to my [child / attorney],” or worse yet, a false explanation, such as “not out of any lack of love or affection, but because I believe [child] has sufficient resources of his own” is not helpful and may end up being used to set up various objections to the will on capacity, fraud or other grounds.

In the same vein, the attorney should consider urging the client to discuss or at least inform the affected family members in writing of the controversial provisions and explain the client’s reasons in his own words. A big part of will contests is the “hurt” factor, which is amplified when a family

member is presented with a surprise will and when there is no chance of reconciliation with the testator. Early communication will help to avoid any surprises and might even result in a reconciliation which could change the estate plan altogether.

In addition, the attorney should prepare memos summarizing the drafts of the client’s documents and highlighting any changes, and the reasons therefore, from the last version sent to the client. Including a redline comparison to the prior draft will make the new version easier to review. The attorney should also keep drafts and save different versions of the will. The drafts will show the evolution of the estate plan and often reflect the client’s understanding and input to the process.

The attorney’s time records and invoices are also discoverable in a will contest. Accordingly, the attorney should keep contemporaneous time records throughout the representation, even when using summary billing and/or flat fee arrangements. In the narratives, the attorney should make sure to provide helpful details, such as “reviewed provisions of Will and Revocable Trust with client, answered client’s questions.”

After the will is executed, the attorney should consider maintaining

Jason J. Smith

The Fourth

Pro Bono Recognition Cocktail Reception

Wednesday, April 18, 20185:30p.m. - 7:30p.m.

Nassau County Bar Association

The Nassau County Bar Association, Nassau Suffolk Law Services and the Safe Center

are planning their annual Volunteer Recognition event to show their appreciation to law firms, solo practitioners and

individuals who have performed exemplary pro bono service to the community this past year.

If you would like to sponsor this event, please contact Cheryl Cardona at [email protected]

Save the Date

See WILLS, Page 11

Black History Month Celebration Friday, February 23, 2018

12:30 p.m.Nassau County Supreme Court, Ceremonial Courtroom

This year’s honorees:

Hon. Sharon M. J. GianelliJustice of the NYS Supreme Court

Hon. Alfred S. Robbins Award

Robert L. Olden, Sr.Former Tuskegee Airman

Amistad Presidential Award

Special Tribute - Hon. Jerald S. Carter

Refreshments will be served upon completion of the program.Entertainment and Art Exhibition

Hosted by Nassau County Courts Black History Month Committee

and The Amistad Long Island Black Bar Association Co-Sponsored by

Nassau County Bar AssociationNassau County Women’s Bar Association

Long Island Hispanic Bar Association

Barbara A. MitchellSenior Court Clerk, Supreme CourtHon. Michele M. Woodard Award



custody of the original will. If the original is lost while in the client’s possession there is a presumption that the will was revoked or destroyed.3 Such a presumption does not necessarily arise if the will is lost while in the attorney’s possession.4

Consider Appropriate Substantive Provisions

Just because the client states that he wants to disinherit or provide unequally for a family member doesn’t necessarily mean that is what he really wants. The attorney should dig deeper and ask questions. Where, for example, the client is angry because he made loans to a child that have not been repaid, the attorney should discuss the possibility of using an equalization provision, whereby any unpaid loans as of the testator’s death would be allocated the obligor’s share of the estate, thus extinguishing the loans. Similarly, if the client has made lifetime gifts to children in unequal amounts, an equalization provision can adjust the children’s shares to account for such gifts.

On the opposite side of the spectrum, where the client truly wants to disinherit a family member, the attorney should consider using an in terrorem / no contest clause, which operates to remove the share that would otherwise go to someone who unsuccessfully objects to the will. The attorney should keep in mind that in terrorem clauses only work if the potential objectant actually stands to lose something by objecting. They do not work if the objectant is completely disinherited. Indeed, the inclusion of a useless in terrorem clause could actually backfire by exposing the nominated executor and, if a different person, the proponent of the will, to pre-objection discovery that they would not have been exposed to in the absence of the in terrorem clause.5 If the client wants to include an in terrorem provision, the attorney should talk to him about what he wants to provide the family member as an incentive not to contest the will. The attorney should also discuss the scope of the clause, such as whether it should apply only to an unsuccessful objectant or to his descendants as well, or whether it should apply to only the dispositive provisions of the will as opposed to the nomination of the fiduciary, or the tax appointment clause, for example.

Execute Successive Wills

Where a will contest is expected and time and client resources permit, the attorney should consider recommending successive wills. Under the doctrine of dependent relative revocation, if the most recent will is denied probate, the next prior will may be offered for probate instead.6 In order for a potential objectant to have any recovery, he must successfully invalidate every will, including prior wills, which adversely affected the objectant. A potential objectant’s willingness to litigate could be reduced to zero in a situation where there are five wills, all of which disinherit the objectant.

Use Testamentary Substitutes and/or Gifting Strategies

SCPA 1404 discovery is only available when a will is offered for probate.7 It does not, by its terms, apply to testamentary substitutes such as revocable trusts. Thus, fully funding a revocable trust during the settlor’s lifetime is one way to help protect the client’s estate plan from attack, though there are mechanisms for setting aside revocable trusts as well. The attorney should be aware that after-discovered assets, among other problems, could necessitate the probate of the will anyway, though voluntary administration and/or limited letters of administration may be available alternatives to full probate.

Having the client make gifts during his lifetime is another strategy for avoiding probate. While a disgruntled family member might seek limited letters of administration in order to recover a gift alleged to have been a loan, or stolen property, or a procured by fraud, such litigation may be foreclosed as time-barred if the relevant statute of limitations has run.8

Limit the Involvement of Other Family Members

The attorney’s communications with the client’s family members in the draft-ing process could lead to the claim that the will was procured through undue influence.9 Thus, the attorney should attempt, as far as possible, to commu-nicate directly and privately with his client. Though there may be situations where the attorney has a genuine need to communicate with a family member in order to carry out the representation, such as when a family member has detailed knowledge of the family busi-ness or the client’s financial affairs, the attorney should be careful to limit the communication only to those matters where such communication is truly nec-

essary. Similarly, the attorney should avoid situations where a family mem-ber is interviewing and/or retaining the attorney on behalf of the client, driving the client to meetings, attending meet-ings, and participating in phone calls and email chains.10

Develop and Follow a Consistent Execution Ceremony

Where possible, the attorney should have the client execute his will in the presence of and under the supervision of the attorney (or another attorney at his firm). Such supervision establishes a rebuttable presumption of due execu-tion of the will that is difficult for an objectant to overcome.11 As part and parcel of the execution, the attorney should develop and follow a consistent “ceremony,” whereby all of the stat-utory formalities12 of a valid will are followed. For example, the attorney should ensure that at least two disin-terested witnesses are present, includ-ing the attorney (or another attorney who is familiar with the client and the estate plan). If the will is expected to be contested, consider using only attor-neys as witnesses – their testimony will likely be more helpful in a future will contest than that of a paralegal or assistant. While it is not necessary to have the witnesses present for the entire meeting, the attorney should allow several minutes for the witness-es to meet with the client and for the attorney to explain that he has met with the client, reviewed the will with him and answered his questions before proceeding. The attorney should also

have the witnesses sign a so-called “self-proving” affidavit that is attached to the will, which also establishes the presumption of due execution13 and may avoid the need to obtain testimo-ny from the witnesses when the will is offered for probate.

These are just a handful of the myr-iad practical and strategic consider-ations that should be addressed in the will drafting process. No one strategy is guaranteed to avoid or defeat a will contest. However, a cautious, consci-entious approach to will drafting that considers the practical realities of a contested probate as outlined herein will go a long way toward keeping the will safe from attack.

Jason J. Smith is a Trusts and Estates Partner at Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, and heads their Estate Litigation practice group.

1. See SCPA § 1404(4).2. CPLR 4503(b).3. In re Kennedy, 167 N.Y. 163, 168 (1901).4. In re Castiglione, 40 A.D.3d 1227, 1229 (3d Dept. 2007).5. SCPA 1404(4).6. In re Macomber, 274 A.D. 724 (3d Dept. 1949).7. See SCPA 1404(1).8. In re Courant, 142 A.D.3d 614, 615 (2d Dept. 2016); see also CPLR 213; CPLR 214.9. In re Elmore, 42 A.D.2d 240 (3d Dept. 1973).10. In re Lamerdin, 250 A.D. 133, 135 (2d Dept. 1937).11. In re Leach, 3 A.D.3d 763, 764 (3d Dept. 2004).12. EPTL 3-2.1.13. Leach, 3 A.D.3d at 765.

WILLS ...


Thank You for Supporting the NCBA PRO BONO CAMPAIGN

Hon. Leonard B. AustinD. David CohenBruce M. CohnHon. Angelo A. DelligattiRudolph deWinterLa Salle, La Salle & Dwyer, P.C.

Elizabeth D. Pessala

Hon. Marie G. Santagata

Toscano & Associates

John M. Zenir

Ludwik H. Zobler

Please Support the NCBA2017-2018

CORPORATE PARTNERS

Baker Tilly

Assured Partners Northeast

Champion Office Suites

PrintingHouse Press

Realtime Reporting

RVM


LIBN—CLE centerfold February 2018 Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW Program Calendar February 8, 2018 Dean’s Hour: The Ethics of Talking to the Press With the NCBA Ethics Committee Sign-in and Networking 12:30; Program 1-2PM 1 credit in ethics February 27, 2018 Dean’s Hour: Divorce and Article 81 Proceedings With the NCBA Elder Law Committee This program is sponsored by NCBA Corporate Partner Champion Office Suites and by Nanette Watts, CPA, PC Sign-in and Networking12:30; Program 1-2PM 1 credit in professional practice MARCH 2018 March 1, 2018 Dean’s Hour: Recognizing, Addressing, and Preventing Sexual Harassment in the Workplace This program is sponsored by NCBA Corporate Partner AssuredPartners Northeast, LLC Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills ** Program is open to law firm administrative staff – please call for pricing. March 5, 2018 Accounting for Attorneys Program presented with NCBA Corporate Partner Baker Tilly 6:00-8:00PM 2 credits in professional practice or skills

FEBRUARY 2018 February 5, 2018 Dean’s Hour: Breaking the Stigma of Attorney Addiction With the NCBA Mental Health Law Committee and the NCBA Lawyers Assistance Program Sign-in 12:30; Program 1:00-2:00PM Program is free to attend for informational purposes. Pre-registration required. Optional 1 credit in diversity, inclusion and elimination of bias available for $30 purchase. Credit is free to current Domus Scholars but you must pre-register February 6, 2018 Dean’s Hour: Creating Brand Awareness Through Social Media for Your Law Firm This program is sponsored by NCBA Corporate Partner Champion Office Suites and by Tradition Title Agency, Inc. Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills February 7, 2018 Legal Malpractice Update 2018 With the NCBA Ethics Committee This program is sponsored by Tradition Title Agency, Inc. 5:30-8:30PM 3 credits in ethics

March 6, 2018 Flip Your Memory Switch: Memory Techniques for Attorneys This program is sponsored by NCBA Corporate Partner Realtime Reporting 5:30-7:00PM 1.5 credits in professional practice or skills

March 7, 2018 Evidence in Matrimonial Actions In collaboration with The Safe Center LI, Nassau Suffolk Law Services, and the NCBA Matrimonial Law Committee This program is sponsored by NCBA Corporate Partner Baker Tilly 2 credits professional practice or skills 5:30-7:30 p.m. **The Nassau Academy of Law is waiving tuition for the CLE for attorneys who will commit to taking a new pro-bono case through either The Safe Center LI or Nassau Suffolk Law Services.

March 8, 2018 The Business of Law Lecture Series Presents: Dean’s Hour: How to Thrive in 2018 This program is sponsored by NCBA Corporate Partner Champion Office Suites Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills

Nassau Academy of Law ORDER FORM TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. •By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501

•By Credit Card: FAX completed form with credit card information to 516-747-4147 •Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations

Seminar Reservation Form

Date Seminar Name P E D S

TOTAL Credits

Mem-ber

Non- Member

Domus Scholar Circle 18B

Feb 6 DH: Creating Brand Awareness 1.0 √ 1 $30 $40 FREE N/A Feb 7 Legal Malpractice Update 3.0 3 $115 $155 FREE N/A Feb 8 DH: Ethics of Talking to the Press 1.0 1 $30 $40 FREE N/A Feb 27 DH: Divorce and Article 81 Proceedings 1.0 1 $30 $40 FREE N/A March 1 DH: Sexual Harassment 1.0 √ 1 $30 $40 FREE N/A

Mar 3-4 Bridge-the-Gap (Newly Admitted/Under 2 Years) 7.0 3.0 6.0 16 $199 $199 N/A N/A

March 3-4 Bridge-the-Gap (Experienced) 13 3.0 16 $250 $299 N/A N/A March 5 Accounting for Attorneys 2.0 √ 1 $80 $115 FREE N/A March 6 Flip Your Memory Switch 1.5 √ 1.5 $35 $45 FREE N/A March 7 Evidence in Matrimonial Actions 2.0 √ 2 $80 $115 FREE N/A March 8 DH: How to Thrive in 2018 1.0 √ 1 $30 $40 FREE N/A √ DIVERSITY CREDIT AVAILABLE √ SKILLS CREDIT AVAILABLE SEMINAR RESERVATION TOTAL:

CD and DVD Order Form

Area of Law Seminar Name

P E TOTAL Credits

CD/DVD Mem-ber N/M Seminar Code

Phenomenon of False Confessions 2.0 2 75/95 110/130 7FALSE091917 Criminal Criminal Law Update 2017 2.5 0.5 3 115/130 150/175 7CRIMUP1103 Banking DH: Bitcoin 1.0 1 40/55 75/80 DH020118 DH: Best Practices to Avoid Malpractice 1.0 1 40/55 75/80 DH012318 Ethics DH: Ethics - Year in Review 1.0 1 40/55 75/80 DH011818

Construct. DH: NY Insurance Construction Defects 1.0 1 40/55 75/80 DH013018

Med. Mal Litigating a Med Mal Case (4-part Series) 8.0 8 200 250 MEDMAL

Law Firm DH: Creating Brand Awareness 1.0 1 40/55 75/80 DH020618

Litigation DH: Detecting Deception in Litigation 1.5 1.5 40/55 75/80 DH020218

Elder A View From the Guardianship Bench 2.0 2 75/95 110/130 8VIEW0117

Tech. Why Cybersecurity is Failing 1.0 1 40/55 75/80 DH013118

(FOR CD/DVD orders only) SALES TAX: 8.625% CD/DVD ORDER TOTAL: Name: TOTAL ENCLOSED Address: Phone: City/State/Zip: Email: Credit Card Acct. #: Billing zip for credit card: Security Code: __________ Exp. Date:______________ Signature:

PLEASE ALLOW 3-4 WEEKS FOR ORDER PROCESSING


LIBN—CLE centerfold February 2018 Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW Program Calendar February 8, 2018 Dean’s Hour: The Ethics of Talking to the Press With the NCBA Ethics Committee Sign-in and Networking 12:30; Program 1-2PM 1 credit in ethics February 27, 2018 Dean’s Hour: Divorce and Article 81 Proceedings With the NCBA Elder Law Committee This program is sponsored by NCBA Corporate Partner Champion Office Suites and by Nanette Watts, CPA, PC Sign-in and Networking12:30; Program 1-2PM 1 credit in professional practice MARCH 2018 March 1, 2018 Dean’s Hour: Recognizing, Addressing, and Preventing Sexual Harassment in the Workplace This program is sponsored by NCBA Corporate Partner AssuredPartners Northeast, LLC Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills ** Program is open to law firm administrative staff – please call for pricing. March 5, 2018 Accounting for Attorneys Program presented with NCBA Corporate Partner Baker Tilly 6:00-8:00PM 2 credits in professional practice or skills

FEBRUARY 2018 February 5, 2018 Dean’s Hour: Breaking the Stigma of Attorney Addiction With the NCBA Mental Health Law Committee and the NCBA Lawyers Assistance Program Sign-in 12:30; Program 1:00-2:00PM Program is free to attend for informational purposes. Pre-registration required. Optional 1 credit in diversity, inclusion and elimination of bias available for $30 purchase. Credit is free to current Domus Scholars but you must pre-register February 6, 2018 Dean’s Hour: Creating Brand Awareness Through Social Media for Your Law Firm This program is sponsored by NCBA Corporate Partner Champion Office Suites and by Tradition Title Agency, Inc. Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills February 7, 2018 Legal Malpractice Update 2018 With the NCBA Ethics Committee This program is sponsored by Tradition Title Agency, Inc. 5:30-8:30PM 3 credits in ethics

March 6, 2018 Flip Your Memory Switch: Memory Techniques for Attorneys This program is sponsored by NCBA Corporate Partner Realtime Reporting 5:30-7:00PM 1.5 credits in professional practice or skills

March 7, 2018 Evidence in Matrimonial Actions In collaboration with The Safe Center LI, Nassau Suffolk Law Services, and the NCBA Matrimonial Law Committee This program is sponsored by NCBA Corporate Partner Baker Tilly 2 credits professional practice or skills 5:30-7:30 p.m. **The Nassau Academy of Law is waiving tuition for the CLE for attorneys who will commit to taking a new pro-bono case through either The Safe Center LI or Nassau Suffolk Law Services.

March 8, 2018 The Business of Law Lecture Series Presents: Dean’s Hour: How to Thrive in 2018 This program is sponsored by NCBA Corporate Partner Champion Office Suites Sign-in and Networking 12:30; Program 1-2PM 1 credit in professional practice or skills

Nassau Academy of Law ORDER FORM TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. •By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501

•By Credit Card: FAX completed form with credit card information to 516-747-4147 •Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations

Seminar Reservation Form

Date Seminar Name P E D S

TOTAL Credits

Mem-ber

Non- Member

Domus Scholar Circle 18B

Feb 6 DH: Creating Brand Awareness 1.0 √ 1 $30 $40 FREE N/A Feb 7 Legal Malpractice Update 3.0 3 $115 $155 FREE N/A Feb 8 DH: Ethics of Talking to the Press 1.0 1 $30 $40 FREE N/A Feb 27 DH: Divorce and Article 81 Proceedings 1.0 1 $30 $40 FREE N/A March 1 DH: Sexual Harassment 1.0 √ 1 $30 $40 FREE N/A

Mar 3-4 Bridge-the-Gap (Newly Admitted/Under 2 Years) 7.0 3.0 6.0 16 $199 $199 N/A N/A

March 3-4 Bridge-the-Gap (Experienced) 13 3.0 16 $250 $299 N/A N/A March 5 Accounting for Attorneys 2.0 √ 1 $80 $115 FREE N/A March 6 Flip Your Memory Switch 1.5 √ 1.5 $35 $45 FREE N/A March 7 Evidence in Matrimonial Actions 2.0 √ 2 $80 $115 FREE N/A March 8 DH: How to Thrive in 2018 1.0 √ 1 $30 $40 FREE N/A √ DIVERSITY CREDIT AVAILABLE √ SKILLS CREDIT AVAILABLE SEMINAR RESERVATION TOTAL:

CD and DVD Order Form

Area of Law Seminar Name

P E TOTAL Credits

CD/DVD Mem-ber N/M Seminar Code

Phenomenon of False Confessions 2.0 2 75/95 110/130 7FALSE091917 Criminal Criminal Law Update 2017 2.5 0.5 3 115/130 150/175 7CRIMUP1103 Banking DH: Bitcoin 1.0 1 40/55 75/80 DH020118 DH: Best Practices to Avoid Malpractice 1.0 1 40/55 75/80 DH012318 Ethics DH: Ethics - Year in Review 1.0 1 40/55 75/80 DH011818

Construct. DH: NY Insurance Construction Defects 1.0 1 40/55 75/80 DH013018

Med. Mal Litigating a Med Mal Case (4-part Series) 8.0 8 200 250 MEDMAL

Law Firm DH: Creating Brand Awareness 1.0 1 40/55 75/80 DH020618

Litigation DH: Detecting Deception in Litigation 1.5 1.5 40/55 75/80 DH020218

Elder A View From the Guardianship Bench 2.0 2 75/95 110/130 8VIEW0117

Tech. Why Cybersecurity is Failing 1.0 1 40/55 75/80 DH013118

(FOR CD/DVD orders only) SALES TAX: 8.625% CD/DVD ORDER TOTAL: Name: TOTAL ENCLOSED Address: Phone: City/State/Zip: Email: Credit Card Acct. #: Billing zip for credit card: Security Code: __________ Exp. Date:______________ Signature:

PLEASE ALLOW 3-4 WEEKS FOR ORDER PROCESSING


This is also required when lawyers move from one firm to another or when law firms merge. These checks must be conducted before attorneys are hired or before hiring lateral attorneys and before merging firms. As noted in Comment [9A], if the firm fails to maintain an adequate conflict check-ing system, and the conflict is not revealed, the firm shall be responsible for the violation. If an attorney knows or should know of the conflict, the attorney handling the matter remains individually responsible for the vio-lation of the rules “whether or not the firm’s conflict-checking system has identified the conflict.”

Rules 1.7 and 1.8 concern conflicts and prohibit the representation of opposing parties in the same litiga-tion, regardless of the clients’ possi-ble consent. However, Comment [23] states “simultaneous representation of parties whose interest in litigation may conflict, such as co-plaintiffs or co-defendants is governed by para-graph (a)(1). A conflict may still exist by reason of substantial discrepancy in the parties’ testimony,” different positions or substantially different possibilities of settlement or liability claims. As further noted in Comment [23], “multiple representation of per-sons having similar interests in civil litigation is proper if the require-ments of paragraph (b) are met.” As

discussed in Comment [24], a conflict can still exist “if there is significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s representation of another cli-ent in a different case.”

Rule 1.4(a)(3) requires a lawyer to keep a client “reasonably informed” about the status of the matter. Rule 1.4(a)(1)(iii) requires the lawyer “to promptly inform the client of mate-rial developments in the matter including settlement or plea offers.” This promptly informing the client provision should include settlement offers or demands for settlement, the loss of any claim, including dismiss-al because of a summary judgment motion, as well as the possibility or not of settling within the policy limits along with the status of any excess insurance coverage or position concerning same. In addition to the above, Rule 1.4(a)(4) requires a lawyer “to promptly comply with the client’s reasonable request for information.” This could include updating the client as to the status of the matter, when the next conference or trial or seri-ous event will occur or that nothing of significance has happened in the matter. The client also has the right to seek information about the matter or copies of documents. If there will be some delay in fully responding to the request, at least the request should be acknowledged and the client should be advised when there will be a complete response. This includes responding to client’s telephone calls (or emails).

Rule 3.3 of the Rules of Professional Conduct addresses conduct before a Tribunal. Rule 3.3(a) prohibits a law-yer from offering or using evidence the lawyer knows to be false and the lawyer may be under an affirmative obligation to disclose same to the Tribunal.

Rule 1.16 describes the situations when a lawyer may withdraw from representing a client. These include under (c) that a lawyer may withdraw from representing a client when: “(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees; or (6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for extension, modification, or reversal of existing law; or (7) the client fails to cooperate in the representation or otherwise renders the representation unreason-ably difficult for the lawyer to carry out employment effectively.”

Citation to one of the specific rea-sons allowed under (c) is not nec-essary if the withdrawal is based on (10) “the client knowingly and freely assents to the termination of the employment”; or (11) “withdraw-al is permitted under Rule 1.13 (c) or other law.” Please note that if under (d) “permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal without its permission.” If the tribunal orders

the attorney to continue his represen-tation, the lawyer may have to do so notwithstanding good cause for ter-minating the representation. Please note that even when the withdrawal is permitted, 1.10(e) requires that the attorney must “avoid forcible preju-dice to the rights of the client” and this includes “giving reasonable notice to the client, (and) allowing time for employment of other counsel.”

If the withdrawal is prompted by the client’s demand that the lawyer engage in unprofessional conduct, or if the court requests an explanation for the withdrawal, Comment [3] pro-vides that “the lawyer may be bound to keep confidential the facts that would constitute such an explanation” and the lawyer can merely state that “professional considerations” require termination and this should ordinari-ly be accepted as sufficient.

At the same time, as noted in Comment [4] “a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.”

Kenneth J. Landau is a partner in the Mineola law firm of Shayne, Dachs, Sauer & Dachs, LLP, and concentrates in the areas of negligence, medical malpractice and insurance law on behalf of plaintiffs. He is a past Dean of the Nassau Academy of Law and hosts the weekly radio show “Law You Should Know,” broadcast every Wednesday at 3:00 p.m. or Sunday at 7:00 a.m. on WHPC 90.3 F.M. or Voicestream at www.ncc.edu/whpc. For podcasts of programs search WHPC on itunes.

ETHICAL ...



Judiciary Induction 2018

On January 12, the induction of the Family and District Court Judges was held. (l-r) Hon. Thomas A. Adams, Nassau County Administrative Judge; Hon. Eileen C. Daly-Sapraicone, Family Court; Hon. Linda K. Mejias, Family Court; Hon. Elizabeth M. Fox- McDonough, District Court; Hon. Maxine S. Broderick, District Court; and Steven G. Leventhal, NCBA President. Photo by Hector HerreraASSOCIATION NEWS

NCBA Supports Efforts to Address Opioid Epidemic on Long Island

At its board meeting on January 9, the Nassau County Bar Association Board of Directors unanimously passed a resolution in support of “Long Island Congregations, Associations and Neighborhoods” (LI-CAN) and other groups as part of a coordinated, multi-sector effort to respond to the opioid epidemic on Long Island.

NCBA Board member Mark Goidell, along with others represent-ing LI-CAN — Executive Director Joe Morris, Rev. Gideon Pollach from St. John’s Episcopal Church, Cold Spring Harbor and Pastor Eric Olsen of Good Shepherd Lutheran Church, Plainview — reported to the board members that prescription and non-prescription pain-killers such as OxyContin, Percocet and Vicodin have a high risk of addic-tion and overdose. Heroin and fentanyl abuse have reached epidemic propor-

tions on Long Island and throughout the nation. According to the Centers for Disease Control, in 2016, more than 64,000 people in the US died due to drug overdoses — a staggering 22% increase over 2015 — with opi-oids involved in two thirds of these deaths. On Long Island, 519 deaths were attributed to opioid use during the year 2016.

The Nassau County Bar Association plans to work with LI-CAN and others to urge elected officials on the federal, state and local levels to respond vig-orously to this health emergency. The Bar will help with education and con-tinue to assist the legal community and its families struggling with addiction. Attorneys will also be encouraged to develop innovative strategies to pursue legal remedies for those harmed by the epidemic.

The Long Island Hispanic Bar Association Coat Drive Event to benefit the Hempstead Hispanic Civic Association. (l-r) Hon. Andrea Phoenix, Nassau County District Court; Steven G. Leventhal, NCBA President; Hon. Darlene Harris, Nassau County District Court; and, Hon. Helen Voutsinas, Nassau County District Court and President of LIHBA. Photo by Hector Herrera


We Care

We Acknowledge, with Thanks, Contributions to the WE CARE Fund

It’s Heartfelt to support WE CARE !

Wednesday, February 21, 2018at Domus

This spectacular event, made possible by your contributions, treats deserving children to a fun-filled afternoon

including hot dogs, ice-cream, DJ, clowns, games, gifts and other entertainment!

Please open your hearts and wallets for WE CARE:

Mail to: Nassau County Bar AssociationWe Care Hearts

15th & West Streets, Mineola, NY 11501

To pay with a credit card contact Jody Ratner(516)747-4070 x226 or

[email protected]

Contributions are tax deductible

th 30 Annual Children s FestivalHosted by the WE CARE Fund of the

Nassau County Bar Association

’

Make check payable to:Nassau Bar Foundation- WE CARE

Platinum Heart $350 Silver Heart $100Gold Heart $200 Caring Heart $50

(suggested minimum donation)

WE CARE Hearts

WE CAREpresents

Dressed to a Tea

Thursday, March 22, 2018$50 per person ¬ 5:30 p.m.

See Insert in this issue to make your reservation!

For tickets and other information contact Jody Ratner (516)747-4070x226 or [email protected]

Broadway at the Bar

DONOR IN HONOR OFEllen Birch John McGorty, 2018 Honoree for LIBN Top 40 Under 40Florence M. Fass & 17 year anniversary of Fass & Greenberg, LLP Elena L. Greenberg Hon. Peter B. Skelos Jonathan A. Dachs, recipient of The John E. Leach Memorial Award by NYSBAHon. Peter B. Skelos Hon. Jeffrey A. Goodstein, recipient of the Touro Law School Keith Romaine Outstanding Public Official Award

DONOR WISHES FOR A SPEEDY RECOVERYDiMascio & Associates, LLP Jack AngelouHon. Peter B. Skelos Jack Angelou

WISHING HON. LAWRENCE M. SCHAFFER A SPEEDY RECOVERYDiMascio & Associates, LLP

Hon. Denise SherHon. Peter B. Skelos

WISHING JILL C. STONE A SPEEDY RECOVERYDiMascio & Associates, LLP

Hon. Carnell T. FoskeyHon. Denise Sher

Hon. Peter B. Skelos

DONOR IN MEMORY OFEllen Birch Ira FogelgarenNeil S. Cohen Don SussDiMascio & Associates, LLP Howard CapellHon. Steven & Peggy Jaeger Theresa A. SiseCaryle Katz Ivan HametzHon.Ignatius L. Muscarella Roslyn Lipton, beloved grandmother of Lisa M. PetrocelliJoan M. Quinn Robert Rao, husband of Hon. Diane M. DwyerHon. Denise Sher John D. Thirkield, former Chief Clerk & Principal Law Clerk, Nassau County Supreme CourtHon. Peter B. Skelos John D. Thirkield, former Chief Clerk & Principal Law Clerk, Nassau County Supreme CourtHon. Arthur D. Spatt Nicholas S. AltimariHon. Arthur D. Spatt Angela AltimariHon. Joy M. Watson Roslyn Lipton, beloved grandmother of Lisa M. Petrocelli

IN MEMORY OF ARTHUR CONOLOGUE, “MAYOR” OF THE NASSAU COUNTY SUPREME COURT

Hon. Angelo A. DelligattiHon. John G. Marks

Hon. Ignatius L. MuscarellaJoan M. Quinn

Hon. Denise SherHon. Peter B. SkelosHon. Joy M. Watson

IN MEMORY OF HON. LEON D. LAZER, BELOVED FATHER OF DAVID LAZERStephen Gassman

Susan Katz Richman & David LiebermanHon. Denise Sher

Hon. Peter B. SkelosHon. Arthur D. Spatt

Tam O’Shanter Golf ClubBrookville, NY

The Muttontown ClubEast Norwich, NY

SAVE THE DATEThe WE CARE Fund

Golf and Tennis ClassicMonday, July 30, 2018

Details to Follow

Checks made payable to Nassau Bar Foundation — WE CARE

Contributions may be made by mail: NCBA Attn: WE CARE

15th & West Streets Mineola, NY 11501


Nassau Suffolk Law Services Volunteer Lawyers Project (VLP) and the Nassau County Bar Association (NCBA) are privileged to honor Craig D. Robins, Esq. as our Pro Bono Attorney of the Month for February, 2018. Mr. Robins, one of the founders of the VLP Bankruptcy Project, is a passionate and dedicated vol-unteer. This past year, he has donated over 70 hours assisting 18 low income clients obtain a fresh start by filing Chapter 7 bankruptcy actions. Even more impressive is that over the last 10 years he has repre-sented 157 debtors and volunteered nearly 650 hours helping clients of the VLP.

Mr. Robins recalls his first involvement in the late 1980s, when he and fellow VLP bankruptcy attor-neys spearheaded the Bankruptcy Project in Nassau County. Since that time, he has consistently taken sev-eral referrals after each of the bi-monthly clinics. These VLP clinics are screenings held at the Bar Association and staffed by experienced volunteer bankruptcy attor-neys. Mr. Robins’ commitment has been so great over the past thirty years of practice that we have seen fit to honor him on two previous occasions with this award. He was also named NCBA Pro Bono Attorney of the Year in April 2010.

Initially, Mr. Robins took his first few pro bono bankruptcy cases to gain greater experience in the field. He found he derived “a tremendous sense of ful-fillment from helping relieve the oppressive financial burden on some of our most vulnerable individuals. Assisting them to gain a fresh start and peace of mind is incredibly rewarding. “

From that point on, Mr. Robins was committed

to building and sustaining a pro bono bankruptcy caseload in addition to his regular practice. Over the years, he has felt honored to have been able to make a tremendous difference in the lives of so many people. “Every model practice should always have room for pro bono representation,” he states. “We need to be an example to the next generation.”

Mr. Robins received a Bachelor of Arts degree from Emory University in 1981, and received a Juris Doctorate from Western New England Law School in 1984. He was admitted to the Massachusetts and New York Bars in 1985 and the Florida Bar in 1987. He is also admit-ted to practice in various Federal District Courts, the United States Tax Court, and the United States Court of Federal Claims. Mr. Robins briefly interned as a judicial law clerk to the Honorable Richard Wallach, Supreme Court Judge (New York, First Department).

Mr. Robins has been practicing on Long Island for most of his career and has devoted his practice almost exclusively to bankruptcy and debt-related matters. He has represented both consumers in Chapter 7 and 13 cases, and businesses in Chapter 11 cases. A frequent contributor to the Nassau Lawyer, Mr. Robins has written extensively on procedure, legislation, and prac-tice, and the interaction of bankruptcy law on personal injury cases and matrimonial rights. Since 1991, he has made numerous presentations on bankruptcy law to attorneys and judges through the Theodore Roosevelt Chapter of the American Inns of Court, of which he is an executive board member. Mr. Robins is active in the Bankruptcy Committees of both the Nassau and Suffolk Bar Associations, and is a long-time member of

the American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.

One of Mr. Robins’ most memorable pro bono mat-ters involved a mother and daughter. The daughter had suffered brain damage as a result of choking during dinner, and was rendered a quadriplegic. Prior to the accident, she and her mother had been active working individuals. Now the daughter was unable to return to work and could not pay her extensive medical debts. Her mother, likewise, had to cease working in order to care for her daughter. She, too, fell behind on her debts. Mr. Robins took on both Chapter 7 filings pro bono. Both clients were relieved of their oppressive financial burden, and could focus their energy on the daughter’s recovery.

Susan Biller, Pro Bono Coordinator of the VLP states: “Craig Robins is a rare attorney whose compas-sion and commitment to pro bono work serves as an inspiration for all attorneys. He was a visionary found-er of our Bankruptcy Project years ago, and remains one of its most dedicated participants. We are so grate-ful for his work.”

In addition to practicing law, Mr. Robins enjoys com-petitive bicycle racing, and is an avid photographer. He enjoys spending time with his wife and his son, Max, who plans to become an attorney as well.

In recognition of his career long commitment to Nassau County’s neediest citizens, The Volunteer Lawyers Project, along with the Nassau County Bar Association, are pleased to honor Craig D. Robins as our latest Pro Bono Attorney of the Month.

The Volunteer Lawyers Project is a joint effort of Nassau Suffolk Law Services and the Nassau County Bar Association, who, for many years, have joined resources toward the goal of providing free legal assistance to Nassau County residents who are dealing with economic hardship. Nassau Suffolk Law Services is a non-profit civil legal ser-vices agency, receiving federal, state and local funding to provide free legal assistance to Long Islanders, primarily in the areas of benefits advocacy, homelessness preven-tion (foreclosure and eviction defense), access to health care, and services to special populations such as domestic violence victims, disabled, and adult home residents. The provision of free services is prioritized based on finan-cial need and funding is often inadequate in these areas. Furthermore, there is no funding for the general provision of matrimonial or bankruptcy representation, therefore the demand for pro bono assistance is the greatest in these areas. If you would like to volunteer, please contact Susan Biller, Esq. 516-292-8100, ext. 3136.

Craig D. Robins, Esq.BY SUSAN BILLER

Pro Bono Attorney of the Month

LAW YOU SHOULD KNOWLAW YOU SHOULD KNOW

Hosted by: Kenneth J. Landau, Esq.Shayne, Dachs, Sauer & Dachs, LLP Mineola•

on 90.3 FM WHPCCelebratong 25 Years!

On 90.3 FM radio or voicestream over the internet at www.ncc.edu/whpc

or search “WHPC” on iTunes for Podcast

Wed • Feb 28, 2018• 3 p.m.or Sun • March 4, 2018 • 7 a.m.

Renting a Store or an OfficeWed • March 7, 2018 • 3 p.m.

or Sun • March 11, 2018 • 7 a.m.

Lawsuits for Unpaid Wages

Wed • March 14, 2018 • 3 p.m.or Sun • March 18, 2018 • 7 a.m.

More Latin Legal Terms You Should Know*

Do You Need A Prenup?*

Wed • Feb 14, 2018 • 3 p.m.or Sun • Feb 11, 2018 • 7 a.m.

*You can earn CLE by listening to broadcast, podcast (or purchasing CDs) of these shows. Check with the

Nassau Academy of Law for the details (516)747-4464 or www.nassaubar.org

Latin Legal Terms You Should Know*

Wed • Feb 21, 2018 • 3 p.m.or Sun • Feb 25, 2018 • 7 a.m.


such extraordinary expenses to those incurred after birth.12 Furthermore, under basic tort law, plaintiffs may not recover for injuries sustained before their claim accrued,13 so under the majority decision parents could not recover for pre-natal treatment—not an impossibility, given modern medi-cine.

The majority also had to reconcile its holding with CPLR 214–a, which the Legislature had promulgated pre-cisely to limit medical malpractice actions. The statute was a response to the judicial evolution of the discov-ery rule, which first was applied to foreign-object malpractice cases but which other decisions expanded.14 The court held in B.F., however, that the extraordinary expenses claim “is not the typical medical malpractice case,” and was not even recog-nized in Becker until after CPLR 214–a was enacted.15

Judge Garcia con-tended that CPLR 214–a effectively pre-empted the field, pre-cluding judicial sup-plementation of the limitations rule in medical malpractice actions. He found in the legislative history of 214–a, and in the Legislature’s subsequent rejec-tion of bills to amend it, a clear oppo-sition to any further expansion of the opportunity to bring medical malprac-tice actions.16 The majority, however, found that “nothing in the legislative history suggest an intent to constrict judicial authority to otherwise define when a cause of action accrues.”17

Unanswered QuestionsTo the extent that courts confine

themselves to answering the ques-tions posed by each case, they are con-strained in their ability to comprehen-sively address issues. The history of the extraordinary expenses claim is an example of this, with the courts taking almost forty years after recognizing this cause of action to definitively answering when the claim accrues. As the B.F. dis-sent shows, many questions about this cause of action remain to be answered.

Perhaps the most obvious ques-tion concerns expenses for pre-natal treatment. Defendants can rely on the hornbook law in Judge Garcia’s dissent to argue for excluding such damages. Plaintiffs, however, can argue that rec-ognizing such damages is simply the next logical step after B.F., addressing another issue left unresolved by Becker.

A thornier question is why an extraordinary expenses claim should even require a live birth. If the claim belongs to the parents, and modern medicine can treat disabled children in utero, then why should the parents not be able to recover those expenses? Indeed, if the treatments prove unsuc-cessful, and the child either does not survive or is aborted, then the parents are no better off than were plaintiffs under the old common-law rule that a tort claim dies with the victim.18

B.F. also leaves us with the admit-tedly academic question of whether, in creating this accrual rule for extraor-dinary expenses claims, the judicia-ry has overstepped its bounds. If the Legislature has not preempted the field, its behavior in passing CPLR 214–a

and declining to amend it indicates an opposition to expansion of medical mal-practice claims. And a rule that extraor-dinary expenses claims accrue like any other medical malpractice claim is workable, however controversial it may be as a matter of policy to place on the parents the burden of independently verifying the screening procedures of their fertility clinic. If statutes are the authoritative indication of legislative intent, however, then we should not infer that the Legislature has chosen “to constrict judicial authority” before it unambiguously does so.

The genesis of CPLR 214–a may point the way to a legislative solution to the issue in B.F. As the Legislature responded to the judge-made discovery rule with a codification of its own, per-haps B.F. will impel the Legislature to

debate the issue as a matter of policy, and to enact another rule clar-ifying when the extraor-dinary expenses claim accrues. Indeed, a rule that the cause of action accrues at implanta-tion, but the limitations period is tolled until the pregnancy ends, would allow parents to claim all extraordinary expenses without forc-ing them to investigate genetic defects before

birth.The clearest lesson of B.F. is cave-

at emptor: couples considering fertility treatment should take the opportunity to thoroughly investigate any clinic they consider. The Internet provides a host of advice from public agencies,19 news outlets,20 and clinics themselves,21 but there can be no substitute for detailed questioning of any physician being con-sidered. We cannot know whether the plaintiffs in B.F. could have done any-thing to discover the danger in their donors’ eggs before it was too late. The time, money, and emotion invested in fertility treatment, however, makes any and all investigation worthwhile.

Christopher J. DelliCarpini is a partner in the DelliCarpini Law Firm of Mineola, represent-ing plaintiffs in personal injury matters. He can be reached at [email protected].

1. 2017 N.Y. Slip. Op. 08712 (2017).2. 46 N.Y.2d 401 (1978).3. Id. at 406–08.4. Id. at 412. The child in the companion case had succumbed to polycystic kidney disease after two and one-half years.5. 85 N.Y.2d 701, 704 (1995).6. Id. at 706–07.7. See Pahlad v. Brustman, 33 A.D.3d 518 (1st Dept. 2006); Ciceron v. Jamaica Hosp., 264 A.D.2d 947 (2d Dept. 1999).8. 2017 N.Y. Slip. Op. 08712 at 1–4.9. Id. at 3–4.10. Id. at 6–8.11. Id. at 7–8.12. Id. at 15–17 (Garcia, J., dissenting).13. See generally Restatement (Second) of Torts § 902, Comment a, cited in 2017 N.Y. Slip. Op. 08712 at 16–17 (Garcia, J., dissenting).14. See Walton v. Strong Mem. Hosp., 25 N.Y.3d 554, 561–65 (2015)(discussing cases), cited in B.F., 2017 N.Y. Slip. Op. 08712 at 9.15. 2017 N.Y. Slip. Op. 08712 at 11.16. Id. at 17–21 (Garcia, J., dissenting).17. Id. at 10.18. Becker, 46 N.Y.2d at 405.19. NYS Dept. of Health, Questions and Answers about Infertility and its Treatment, available at https://goo.gl/y2zdED.20. Huffington Post, 5 Common Misconceptions About PGS and PGD You Need to Know, available at https://goo.gl/kJ2Uta.21. Oregon Reproductive Medicine, Donor Egg IVF Choosing for Success, available at https://goo.gl/U5iAGt; Advanced Fertility Center of Chicago, Preimplantation genetic screening - PGS for aneuploidy with IVF Does PGS with chromosomal tests of embryos improve IVF success?, available at https://goo.gl/7UWz64.

EXPENSES ...


The clearest lesson of B.F. is caveat emptor: couples considering fertility treatment should take the opportunity to thoroughly investigate any clinic they consider.

A MEMBER BENEFIT

Ethics Helpline Clarifies The Right Thing To Do

By Omid Zareh and Kevin Kearon

One of the lesser known, but incredibly helpful, services to mem-bers is the Ethics Helpline. Members who have an ethical dilemma can get a speedy answer by calling the Nassau County Bar Association (516-747-4070), email ([email protected], put “ethics opinion” in the sub-ject line) or using traditional mail. More informal or urgent inquiries are answered by phone by the NCBA Attorney volunteers who are on call during the week or by a member of the Ethics Committee.

Typical inquiries involve how to handle client funds or escrow accounts, what an attorney is to do when a conflict of interest is discov-ered and issues of attorney - client privilege, disagreement or discord. While the Ethics Helpline does not handle attorney grievances and com-plaints by clients, it is a tremendous resource for attorneys to prevent such issues.

The Helpline’s informal or more immediate responses often provide the inquiring attorney with a prac-tical course of conduct. At times, all that is necessary is to point the inquiring attorney to the applica-ble rules in the New York Lawyer’s

Code of Professional Responsibility. Follow up questions and deliberation with other Committee members may be necessary to help guide the inquir-ing attorney. Hundreds of helpful advisories occur annually.

For more information, contact Ethics Committee Chair Kevin Kearon, (516)745-1500 or [email protected].

Omid Zareh is Past Chair of the Ethics Committee and Kevin Kearon is the cur-rent Chair.

Typical inquiries involve how to handle client funds or escrow accounts, what an attorney is to do when a conflict of interest is discovered and issues of attorney - client privilege, disagreement or discord.

LLLEGALEGALEGAL JJJOBSOBSOBS ONONON LI LI LI

NassauBar-jobs.careerwebsite.com

NASSAU COUNTY BAR ASSOCIATION JOB BOARD

Long Island’s Exclusive Online Legal Job Board Long Island’s Exclusive Online Legal Job Board Long Island’s Exclusive Online Legal Job Board

FREE for all job seekers. Employers can review posted candidate resumes online.

2 Associate Attorneys Experience in Civil Litigation; Public Sector Collective

Bargaining

Corporate Associate Attorney Large firm, 3-6 years experience in general corporate

and transactional matters

Commercial Litigation Associate Attorney 3-5 years of experience, aviation litigation a plus

Trusts & Estates Attorney

Associate with 2 years experience

Paralegal, Trusts & Estates 2 years experience, full time position

Personal Injury/Med Mal Attorney 2 years experience, Woodbury office

Commercial Litigation/Insurance Coverage Attorney

Associate with 2-5 years experience in litigation

Immigrant Rights Attorney Statewide nonprofit law firm, Long Island office

Tax Attorney Associate with 3+ years experience 2 Associate Attorneys Experience in -Civil Litigation -Public Sector Collective Bargaining Corporate Associate Attorney Large firm, 3-6 years experience in general corporate and transactional matters Commercial Litigation Associate Attorney 3-5 years of experience, aviation litigation a plus Trusts & Estates Attorney Associate with 2 years experience

Paralegal, Trusts & Estates 2 years experience, full time position Personal Injury/ Med Mal Attorney 2 years experience, Long Island office Commercial Litigation/Insurance Coverage Attorney Associate with 2-5 years experience in litigation Immigrant Rights Attorney Statewide nonprofit law firm, Long Island office


2018 begins and we give Domus a toast.

The home of our bar association, of which we can boast.

Domus has stood here since 1931.

May our care keep it thriving for years yet to come.

That care needs our focus, our effort, our time,

So Domus continues to live in its prime.

Just thirteen years short of its century mark,

Each year brings new members, new programs, a spark.

The Santagata Room welcomes us, refurbished, renewed.

The Cloak Room serves us delec-table food.

Committee meetings continue, service projects abound.

The Academy of Law teaches us, annual events come around.

The Steven Eisman Fund con-tinues to grow,

A tribute to his memory, and this home we all know.

Happy New Year to all! May our vison be clear.

May 2018 bring us all happi-ness, health and good cheer.

For Domus we continue the work that’s begun.

And as Tiny Tim said, “God bless us, every one!”

To Domus!

— Kevin Mulry, NCBA Board Meeting, January 9, 2018

Toast to Domus

Lunch with the Judges

Newly-elected District Court Judge Elizabeth Fox-McDonough (seated, center) at the Nassau County Bar Association’s first New Lawyer/Judge lunch of 2018. The lunch series provides the unique opportunity for newer practitioners to meet judges informal-ly outside the courtroom. (seated l-r) Akiva Shapiro, Hon. Judge Fox-McDonough and Laura Mulholland. (standing l-r) Barry Dynkin, NCBA Board Member Andrea Brodie, Christopher Haner, NCBA President Steven G. Leventhal and Timothy Jenks.

Moritt Hock & Hamroff sponsors the informal program. Attorneys practicing up to 10 years who would like to attend the next luncheon may contact Donna Gerdik in Membership, 516-747-4070, [email protected].(Photo by Hector Herrera)

NCBA

Sustaining Members2017 - 2018

Martin P. AbruzzoMary Ann Aiello

Mark E. AlterLeon ApplewhaiteErnest T. Bartol

Jack A. BennardoAllan S. BotterHoward R. BrillNeil R. Cahn

Robert M. CalicaRalph A. Catalano

Alan W. ClarkHon. Leonard S. Clark

Richard D. CollinsEileen C. DalyJohn M. Daly

Frank G. D’AngeloJohn P. DiMascio

John P. Dimascio, Jr.Thomas P. Dougherty

Hon.Dorothy D. T. EisenbergCharo Ezdrin

Bernard FeigenHoward S. FenstermanJordan S. Fensterman

Samuel J. FerraraLawrence R. GaissertDomingo R. Gallardo

Marc C. GannEugene S. Ginsberg

Frank Giorgio, Jr.John J. Giuffre

Douglas J. GoodRobert S. Greco

Hon. Frank A. Gulotta, Jr.Alan B. Hodish

Warren S. HoffmanJames P. JosephElena KarabatosZachary E. Kitton

Hon. Susan T. KluewerMartha Krisel

Donald F. LeistmanGregory S. Lisi

Hon. Roy S. MahonShalom S. Maidenbaum

Peter J. MancusoMichael R. Martone

John P. McEnteeChristopher T. McGrath

Anthony J. MontiglioLinda G. Nanos

Hon. Michael L. OrensteinGary PetropoulosMichael E. Ratner

Edward T. Robinson IIIHon. Marie G. Santagata

Stephen W. SchlisselHon. Denise L. SherHon. Peter B. Skelos

Ira S. SlavitHon. Arthur D. Spatt

Hon. Joseph J. SperberMichael F. Sperendi

Sanford StrengerClaire Talwar

Thomas A. ToscanoHon. Joy M. Watson

Every year thousands of attorneys renew their membership in the Nassau County Bar Association. In addition to dues,

some members show their appreciation to the NCBA by making a special contribution and becoming a

Sustaining Member. The NCBA is grateful for these individuals who strongly

value the Nassau County Bar Association’s mission and its contributions for the betterment of the legal profession.

To become a Sustaining MemberPlease contact the

NCBA Membership Office (516)747-4070


NCBA Committee Meeting Calendar • Feb. 20 - March 15, 2018Questions? Contact Stephanie Pagano (516) 747-4070 [email protected]

Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.Check website for updated information: www.nassaubar.org

GENERAL, SOLO AND SMALL LAW PRACTICE MANAGEMENT Tuesday, February 20 12:30 p.m. Deborah Kaminetzky

INTELLECTUAL PROPERTY Monday, February 26 12:30 p.m. Ariel Ronneburger

EDUCATION LAW Monday, February 26 12: 30 p.m. John Sheahan

ADOPTION LAW Tuesday, February 27 12:30 p.m. Martha Krisel

VETERANS & MILITARY LAW Tuesday, February 27 12:30 p.m. Gary Port

ANIMAL LAW Tuesday, February 27 6:00 p.m. Marilyn Genoa/Matthew Miller

WOMEN IN THE LAW Wednesday, February 28 12:30 p.m. Christie Jacobson

MEDICAL-LEGAL Wednesday, February 28 12:30 p.m. Alan Clark

TAX LAW Wednesday, February 28 12:30 p.m. Brad Polizzano/Michelle Espey

HOSPITAL & HEALTH LAW Thursday, March 1 8:30 a.m. Douglas Nadjari

PUBLICATIONS Thursday, March 1 12:45 p.m. Rhoda Andors/Anthony Fasano

COMMUNITY RELATIONS & PUBLIC EDUCATION Thursday, March 1 12:45 p.m. Moriah Adamo

ETHICS Monday, March 5 5:30 p.m. Kevin Kearon

CIVIL RIGHTS/CRIMINAL COURT LAW & PROCEDURE Wednesday, March 7 12:30 p.m. Kristina Heuser/Daniel Russo

NEW LAWYERS Monday, March 12 6:30 p.m. Jamie Rosen/John Stellakis

ALTERNATIVE DISPUTE RESOLUTION Wednesday, March 14 12:30 p.m. Donna-Marie Korth/William J.A. Sparks

LABOR & EMPLOYMENT Wednesday, March 14 12:30 p.m. Christopher Marlborough

ASSOCIATION MEMBERSHIP Wednesday, March 14 12:45 p.m. Adam D’Antonio

REAL PROPERTY Wednesday, March 14 5:30 p.m. Patrick Yu/Rebecca Langweber

MATRIMONIAL LAW Wednesday, March 14 5:30 p.m. Jennifer Rosenkrantz

SURROGATES COURT ESTATES & TRUSTS Thursday, March 15 5:30 p.m. Dennis Wiley/Sally Donahue

We are pleased to announce the formation of the Diversity and Inclusion Committee of the Nassau County Bar Association and invite you to participate. The Co-Chairs of the committee are Hon. Maxine S. Broderick and Hon. Linda K. Mejias. Please contact

Stephanie Pagano at [email protected] if you would like to be a member of this committee in formation.

CommiTTee reporTs

Real Property LawMeeting Date: 1/10/18Chairs: Patrick Yu, Rebecca Langweber

James Rigano and Nicholas Rigano delivered a presentation entitled “Buying/Selling Envi-ronmentally Contaminated Real Property,” which focused on matters such as the contamina-tion of groundwater, remediation programs, and suggestions on how to deal with the environ-mental issue from both the buy-er’s and seller’s standpoint. Committee mem-bers also engaged in a discussion of topics of interest, including having the NCBA Board of Directors take a position on the tax map verification and block fees, and on several proposed bills before the New York State As-sembly regarding the removal of companion

animals during an eviction.The next meeting is sched-

uled for February 7, 2018, at 12:30 p.m. at NCBA, which will feature a presentation by archi-tect Monte Leeper entitled “Ar-chitects and Attorneys.”

Women in the LawMeeting Dates: 10/25/17, 11/29/17. 12/6/17Chairs: Christie Jacobson, Jennifer Koo

At the committee meeting on October 25, 2017, guest speak-

ers and personal stylists Dana Amoroso and Corinne Amey of presented a lecture enti-tled “Fall Fashion Trends: Professional and Personal.” At the meeting on November 29, 2017, guest speakers Christopher Caruso, Associate Dean for Career Services at Hofst-ra University School of Law, and Vernadette

Horne, Director of Career and Profession-al Development and Diversity Initiatives at Hofstra University School of Law, delivered a presentation entitled “Negotiating Your Job Offer and Asking for a Raise.” At the meet-ing on December 6, 2017, the committee co-sponsored a Dean’s Hour Event with the Nassau Academy of Law entitled “Paid Fam-ily Leave in New York: Everything Employ-ers Need to Know Now,” featuring Melissa Osipoff, who discussed major features of the new paid family leave act.

Animal LawMeeting Date: January 2018Chairs: Matthew Miller, Marilyn K. Genoa

Committee members discussed various topics of interest, including communicating with the Real Property Law Committee to determine the appropriateness of a joint re-

quest to the NCBA Board of Directors that the NCBA support an upcoming bill in the New York State Assembly regarding the re-moval of companion animals at an eviction.

Intellectual PropertyMeeting Date: 1/25/18Chairs: Ariel Ronneburger

The committee welcomed Professor Iri-na Manta of the Hofstra University School of Law who delivered a lecture on the First Amendment and privacy issues.The Committee Reports column is com-piled by Michael J. Langer, a partner in the Law Offices of Michael J. Langer, P.C. Mr. Langer is a former law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s practice focuses on matrimonial and family law, estate and com-mercial litigation, and criminal defense.

Michael J. Langer


Race to Judgment By Frederic BlockReviewed by Joe Ryan

Far from a “novel,” Race to Judgment1 reveals the truth of what makes our criminal justice system such a danger-ous place where the wrongly accused can have their lives destroyed because certain law enforcement officials seek to rack up records of convictions to reach the top of their league by blind zeal and dirty tricks. The “novel” comes from an impeccable source: Senior E.D.N.Y. U.S. District Court Frederic Block who, at 83 years of age, was quoted as saying: “There are some creative juices left in my bones.”2

Judge Block’s creative juices trans-form a true story into a novel based upon the scandalous revelations arising out of documented wrongful prosecu-tions by the Brooklyn District Attorney’s Office under the leadership of former DA Charles (“Joe”) Hynes and his chief sub-ordinate, ADA Michael Vecchione. Both become fictional characters: Brooklyn DA James Neary and ADA Anthony Racanelli.

The Judge’s insight comes from reli-able sources: Jabbar Collins, an African-American prisoner who secured his freedom after serving 16 years in prison for having been wrongfully convicted by the Brooklyn DA’s office of murder-ing a Hasidic rabbi. His release was granted by fellow EDNY, and now Chief Judge, Dora L. Irizarry after evidence established that a key witness falsely accused Collins of the murder despite the witness’s prior recantation, later overcome by Vecchione’s strong arm tac-

tics to deliver the devastating “lie” at trial without notifying Collin’s defense counsel. Fellow EDNY Judge Edward Korman likewise questions the credibil-ity of Vecchione’s denial of prosecutorial misconduct in a separate challenge to another Brooklyn DA conviction. And Judge Block favorably ruled in Collins’s favor in related lawsuits where Collins sought to unseal state court records of “cooperating” witnesses to prove that they had lied at his trial by concealing Vecchione’s efforts to secure their free-dom in exchange for their “testimony.”

Judge Block never realized that the Collins exoneration would become the cornerstone of African-American lawyer Kenneth Thompson’s successful cam-paign that defeated 13-year incumbent District Attorney Hynes’ primary bid for re-election. Thompson hammered away that Hynes’ refusal to repudi-ate Vecchione’s documented misconduct constituted proof of corruption in the Brooklyn DA’s Office.

The Judge dedicates Race to the memory of Thompson, who died from an unexpected illness at 50 years of age, because of Thompson’s effort to reform the Kings County criminal jus-tice system by establishing a blue-ribbon committee to review more than fifty suspect convictions. Ironically, early in the Judge’s judicial career, Thompson had tried a case before the Judge when he served as an AUSA for the E.D.N.Y.

The Race “plot” carries three crim-inal cases: (1) JoJo White’s success-ful petition for freedom before Judge Black and a $14 million dollar settle-ment for having been wrongly convicted for murdering a Hasidic rabbi; (2) the on-going prosecution of LaTroy Jackson, a recently married African-American school teacher with a pregnant wife, for the murder of a Hasidic rabbi seven years ago based which rests upon the

word of a “key witness” under the influ-ence of ADA Anthony Racanelli; and (3) Kenneth William’s representation of a Hasidic 17-year old rape victim who was impregnated by her revered Hasidic father at a time when the Brooklyn DA deferred to the Hasidic tight-knit com-munity’s own methods of dealing with crime in exchange for Hasidic political support.

Race offers much more than a crime story: Judge Block, an accomplished pianist, composer and play-write has composed eight original songs (musi-cal scores are on the RACE website) suitably adapted to each scene, and performed by his protagonist, defense attorney Kenneth Williams, who is a cabaret performer when not defending the wrongly accused in court. Brooklyn restaurants, Brooklyn architectural and historical sites, a Greek wedding (Betsy, the Judge’s wife, is Greek), abortion issues, and the origins of the Hasidic sect contribute much to the reader’s edu-cation and delight.

The answer is “Yes”—this could become a movie, starring Denzel Washington as Kenneth Williams, thanks to Judge Block, so Race to Judgment.

Joe Ryan, a defense attorney, is a Past President of the Nassau County Bar Association, and former AUSA of the EDNY.

1. Frederic Block, Race to Judgment (Oct. 10, 2017), ISBN 9781590794586. 2. Anthony M. Destefano, Brooklyn Judge Frederic Block, 83, has stories to tell, amNewYo-rk, available at https://goo.gl/VFvB5Y.

LAWYER LIT

Race to JudgmentAuthor: Frederic BlockPublished: 10/10/2017List price: $16.48

members to family members at below market rates.2 Justice Ramos pointed out that such conduct might give rise to grounds for commencement of a derivative action for breach of fiducia-ry duty, but that did not mean that the company was unable to operate and manage the property in accordance with the operating agreement.

In Matter of Ross one of three broth-ers, each of whom owned one-third of the membership interests of a limited liability company, sought dissolution after the sale of the sole piece of prop-erty owned by the LLC.3 The operat-ing agreement contained a very broad purposes clause which recited that the purpose for which the company was formed was to “engage in any lawful act or activities for which limited liability companies may be formed” under New York law. Petitioner’s two brothers did not want to dissolve and distribute the proceeds of the sale, but wanted to reinvest the proceeds in additional properties. Citing the broad purposes clause and the fact that the LLC was very profitable, Justice Driscoll dis-missed the dissolution petition, finding that petitioner had not demonstrated it was not reasonably practicable to carry on business in conformance with the stated purposes of the company as provided in the operating agreement.

Accordingly, broad “purposes” claus-es are often found to be obstacles to obtaining dissolution in cases involv-

ing limited liability companies. This, together with the absence of a statu-tory election to buy out the minority owner,4 often make judicial dissolution an impractical remedy in limited liabil-ity company disputes.

The Advantages of Cash-Out MergerIn view of the obstacles to judicial

dissolution and absence of statutory buy-outs in the case of limited liability companies, the cash out (also referred to as “freeze-out”) merger of a minority member’s interest in an LLC may be considered as an alternative remedy.

Section 1002 of the LLC Law pro-vides the procedure for merger of limited liability companies. Unless a greater percentage is required under the oper-ating agreement, the majority members may vote to merge with a limited lia-bility company of which the minority owners are not members. Section 1002(c) provides that such a merger may be approved at a meeting of the members called for such purpose on 20 days’ notice. Section 407(a) of the LLC Law provides, however, that unless otherwise provided in the operating agreement, whenever action may be taken by vote, it may be taken by written consents instead.

In Stulman v. John Dory LLC, Justice Ramos considered the interplay of these two sections and held that the provi-sion in Section 407 permitting action to be taken by written consents without a meeting trumped the provision in Section 1002(b) requiring votes at a meeting.5 Similarly, in Slayton v. High Line Stages, LLC, Justice Kornreich

came to the same conclusion that a cash out merger could be effected by means of written consents in lieu of a meeting for that purpose.6

Section 1002(g) provides that a mem-ber of the limited liability company shall not have any right at law or in equity to attack the validity of the merger or have it set aside or rescinded, except in an action contesting either compliance with the operating agreement, or the proce-dures set forth in Section 1002 itself.

Note that the merger provisions of the Limited Liability Company Law are gen-erally patterned after those contained in the Revised Limited Partnership Act. In Appleton Acquisition, LLC v. National Housing Partnership the Court of Appeals held that RLPA § 121–1102(d) barred a limited partner from seek-ing to set aside a merger based upon alleged fraud.7 The court noted that the language contained in BCL § 623(k) per-mitting an exception to challenge merg-ers based upon common law fraud or illegality does not appear in the Revised Limited Partnership Law. Nor does it appear in the LLC Law. Of course, having a valid business purpose for the merger never hurts.

The Right to Dissent and to An Appraisal

A member of a limited liability com-pany who is being cashed or frozen does not lack a remedy. As pointed out by Justice Ramos in Stulman, a former member who disputes the calculation of the value to be paid for his or her membership interest has the right to dissent pursuant to LLC Law § 1005,

and have the fair value determined in an appraisal proceeding. The LLC Law largely adopts the procedures set forth in BCL § 623 for appraisal proceedings when a shareholder of a corporation dissents with respect to a merger.8

In determining fair value New York law does not permit a “minority dis-count,” for lack of control, but does per-mit a discount for lack of marketabili-ty.9 However, in an appropriate case, a zero discount for lack of marketability has been upheld.10

ConclusionThe “cash-out” or “freeze-out” merg-

er should not be overlooked by counsel working on resolving member disputes in limited liability companies. Often it is a more efficient technique than a dissolution.

Thomas J. McNamara is a member of Certilman Balin Adler & Hyman LLP in East Meadow, and former chair of the NCBA Commercial Litigation Committee.

1. 72 A.D.3d 121 (2d Dept. 2010).2. 2015 N.Y. Slip Op 31455(U) (Sup. Ct., N.Y. Co. July 20, 2015).3. Index No. 605338/2015 (Sup. Ct., Nassau Co. Dec. 10, 2015). The decision is available from the court’s Decision Search page, available at https://goo.gl/85iDUM.4. BCL §1118.5. 2010 NY Slip Op 33911(U) (Sup. Ct., N.Y. Co. Sept. 10, 2010).6. 46 Misc.3d 450 (Sup. Ct., N.Y. Co. 2014).7. 10 N.Y.3d 250 (2008).8. LLC Law §1005(b).9. See, e.g., Giamo v. Vitale, 101 A.D.3d 523 (1st Dept. 2012); Murphy v. U.S. Dredging Corp., 74 A.D.3d 815 (2d Dept. 2010).10. See, e.g., Chiu v. Chiu, 125 A.D.3d 824 (2d Dept. 2015).

MERGERS ...



Farrell Fritz is pleased to announce the promotion to partner of commer-cial litigation attorney Matthew D. Donovan effective January 1, 2018.

Mary P. Giordano takes plea-sure in announcing the opening of her new firm, Giordano Law, LLC., located at 1050 Franklin Avenue, Suite 302, Garden City, New York 11501 516-750-5511, where she will contin-ue to practice in the areas of Wills, Trusts, Elder Law, Medicaid Planning and Applications, Estate Planning & Administration.

Jeffrey D. Forchelli has announced that the law firm he founded over 40 years ago has changed its name to Forchelli Deegan Terrana LLP and the firm has promoted to partnership Stephanie Alberts (Tax, Trusts & Estates), Danielle Gatto (Litigtion) and Parshhueram Misir (Litigation). As the firm’s name has gotten shorter, the number of attorneys has expanded including Jonah Blumenthal (Tax, Trusts & Estates) and Jessica Leis (Land Use & Zoning) who have joined the firm as associates.

Charlene Thompson has been appointed the new Commissioner of the Hempstead Community Development Agency, a public benefit corporation organized to plan and implement pol-icies and programs that address the ongoing revitalization of both the res-idential and commercial sectors of the Village, foster economic growth, pro-vide assistance to public service orga-nizations, eliminate blight, improve opportunities for low and moderate income citizens and promote a better overall quality of life.

Christopher H. Palmer, Managing Partner of Cullen and Dykman LLP, has announced that Elizabeth Usinger has been promoted to Partner in its Garden City office. Ms. Usinger focuses her practice on civil litigation, with an emphasis on construction law and represents many of the firm’s cli-ents, including financial institutions, private lenders, general contractors and individuals in a wide variety of matters including breach of contract claims, business torts, fraudulent con-veyances, debt recovery, and equitable claims.

Abrams Fensterman is proud to announce Maya Petrocelli and John Cahalan have been promoted to partners in the firm’s Commercial Litigation Department.

L’Abbate Balkan Colavita & Contini, LLP proudly announces that Daniel A. McFaul, Jr. has been promoted to the position of partner in the firm’s Design Professional Group. The firm also welcomes the following five associates: Anthony Bevigna (Attorney Liability Group), Neil P. Diskin (Design Professionals),

Gabriel Arevalo (Legal and Business Professionals) and Daniel D. Pojero and Miles F. Altarac (Insurance Industry).

Meyer Suozzi Managing Attorney, Patricia Galteri is proud to announce that its scholarship commit-tee, chaired by NCBA and NYSBA Past President A. Thomas Levin, has award-ed scholarships to five veter-ans who served in Iraq and Afghanistan, now enrolled at Nassau Community College (NCC). The NCC scholarship program, which was ini-tiated by the firm in 2011, recognizes local veterans who are continuing their education after returning from military service. Partner Alexander Berger, Chair of the firm’s Commercial Real Estate Department, was elected to a three-year term as a member of the Board of Trustees of Long Island Children’s Museum.

Ross L. Schiller of Ross L. Schiller & Associates P.C., has been named the East Meadow Herald Man of the Year. Schiller serves on the Nassau County Bar Association Board of Directors.

Pegalis and Erickson, LLC is proud to announce that the firm has been rec-ognized by Best Lawyers in America© in the coveted New York 2018 Best Law Firms list, as a Tier One Plaintiffs’ Personal Injury Litigation and Plaintiffs’ Medical Malpractice Law Firm. In addition, six of the firm’s attorneys have been named to the Best Lawyers© list: Steven Pegalis and Annamarie Bondi-Stoddard for Personal Injury Litigation and Plaintiffs’ Medical Malpractice Law. Attorneys Sanford Nagrotsky, Robert Fallarino, and Linda Oliva were recognized for Plaintiffs’ Medical Malpractice Law.

Marc Hamroff, managing partner of Moritt Hock & Hamroff LLP, has announced that effective Janaury 1, 2018, Michelle E. Espey (Tax Law) has been named counsel to the firm and Stephen J. Ginsberg (Complex Commercial Litigation) has been named a partner of the firm.

Ronald Fatoullah of Ronald Fatoullah & Associates spoke to AARP volunteers at the First Presbyterian Church in Smithtown regarding estate planning and the new tax laws. Elizabeth Forspan lectured to the Association of Retired Police Officers of Nassau County, where she discussed Medicaid and other long term planning techniques.

Karen Tenenbaum, of Tenenbaum Law, P.C., was featured and inter-viewed on the radio show “The Non-Profit Voice” for her active involve-ment in the non-profit communi-

ty. Her article, “Don’t Lose Your Restaurant Because of Unpaid Taxes: 3 Things You Should Know” was published in Total Food Service. Lance E. Rothenberg of the firm authored “5 Things Restaurant Operators Must Know About Taxes and Personal Liability” which was published in Restaurant Hospitality.

Past President Emily Franchina, has formed her

new independent firm, Franchina Law Group, located at 1050 Franklin Avenue in Garden City where will continue her focus on empowering fam-ilies, seniors, and individuals through estate planning, elder law, and atten-tion to special needs.

Melissa Negrin-Wiener, a part-ner at Genser Dubow Genser & Cona, accepted on behalf of the firm the pres-tigious HIA-LI “Those Who Make a Difference” Award which recognizes Long Island’s extraordinary leaders and organizations that have contributed to the business community.

Michael H. Sahn, Managing Partner of Sahn Ward Coschignano, PLLC has announced that the firm has promoted Elaine M. Colavito to Partner. Ms. Colavito, President-elect of the Nassau County Women’s Bar Association, concentrates her practice in matrimonial and family law, civil litigation and commercial transactions.

Leslie H. Tayne of Tayne Law Group, P.C., was the Keynote speaker at the LIBN Business Finance Awards and was interviewed as a guest on the WABC Radio show about financial res-olutions for the New Year. Ms. Tayne also spoke at Melville Chamber on “How to Effectively Brand Your Business,” was on the Real Estate Radio LIVE show sharing insight about bad credit and home buying and will be speaking at NCBA in a Lunch and Learn on “Creating Brand Awareness Through Social Media for Your Law Firm.”

The Law Offices of Seidner & Associates, PC, focusing on Matrimonial, Family, and Elder Law, is proud to announce that the Hon. Merik R. Aaron has joined the firm after retiring from the Nassau County Family Court and having previously served as an acting Nassau County Supreme Court Justice. Matthew S. Seidner has been selected to the 2017 New York Metro Super Lawyers list and is rated AV Preeminent by Martindale-Hubbell.

PLEASE E-MAIL YOUR SUBMISSIONS TO: [email protected] with subject line: IN BRIEF

The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to rep-resenting attorneys for nearly 35 years, Ms. Rice is a Past President of NCBA.

in Brief

The Nassau Lawyer welcomes sub-missions to the IN BRIEF column announcing news, events and recent accomplishments of its current mem-bers. Due to space limitations, sub-missions may be edited for length and content.

PLEASE NOTE: All submissions to the IN BRIEF column must be made as WORD DOCUMENTS.

Marian C. Rice

We welcome the following new members

NCBA New Members

AttorneysMarc D. Bianchi

Harris Beach PLLC

Justin Matthew Block

Sinnreich Kosakoff & Messina LLP

John L. Ciarelli


Andrea M. DiGregorio

Appeals Bureau

Charles Finocchiaro

Tenenbaum Law, P.C.

Kaitlyn E. Flynn

Leo Gabovich

Tenenbaum Law, P.C.

Timothy F. Hill


Jaime Dale Lewis

Law Office of Jaime D Lewis, PLLC

Cynthia R. Miller

Ralph Randazzo

Ira Seligman

Richman & Levine, PC

Jonathan Shalamov

Susan M. Tokarski

Nassau County Attorney

Traci R. Wilkerson

StudentsRyan James Johnson

Elizabeth S. Sy

Jennifer Waite

In MemoriamRudolph deWinter

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Documents

T J of n C B a FEBRUARY 2018 Vol. 67, … · Michael J. Langer, Esq. Douglas M. Lieberman, Esq. Nicole Lubell, Esq. Randa D. Mahar, Esq. Cheryl Y. Mallis, Esq. Angelica M. McKessy,