THE SUFFOLK LAWYER - SCBAof The Suffolk County Bar Association.© The Suffolk County Bar Association, 2009. Material in this publication may not be stored or reproduced in any form

____________________By Barry M. Smolowitz

If you are like most of us, this is thetime of the year that we all engage issome kind of self promise. These socalled resolutions often take the formof a weight and exercise program,education commitment or some otherform of self help promise.

I hope that like me, you believethat self help can come in manyways. I for one know that the feeling of doing good forothers brings a satisfaction to one’s self that is difficult toduplicate. That is why during holiday times there is such

a large outpouring of giving.This year I am asking that each one of our members or

Suffolk attorneys, resolve that they will give a smallamount of their time, by volunteering to participate in oneof our many Pro-Bono programs.

One program in particular that is near and dear to me isthe SCBA Pro-Bono Foreclosure Settlement Conference

Project, which I currently coordinate. The project wasestablished in April 2009, and was born out of necessitydue to the country’s economic meltdown of 2008, thestatutory changes to the Civil Practice Law and Rules, andReal Property Law which now require that all residentialforeclosures be processed through a mandatory court set-

PRESIDENT’S MESSAGE

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 27 No 4January 2011website: www.scba.org

SUFFOLK LAWYERTH

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THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

Judicial Swearing-In & Robing CeremonyMonday, Jan. 10, 9 a.m.Auditorium of Touro Law Center,Central Islip

Healthy Life Series –Acupuncture Monday, Jan. 10, 4 – 6 p.m.Bar Center. Speaker Nicole V. Rotundi,L.A.C., Dipl., AC., MS

Membership Appreciation Tuesday, Feb. 1, 6 p.m.Bar Center. Author and motivationalspeaker Jon Gordon.

Theater Event - Cabaret Thursday, Feb. 10John W. Engeman Theater in Northport.Included with the play is a pre-showcocktail party in the piano bar lounge oftheater. Tickets are $60 per person. CallMarion at (631) 234-5511, ext. 21l tosecure tickets.

BAR EVENTS

Sending a Message to Poachers.................3Admitting Evidence ...................................4Maverick Judge Alamia Retires ...............5Wither Now Crawford ...............................4___________________________________

Meet your SCBA Colleague ......................3Music Review – Roger Waters................10Sweisgood Dinner......................................6SCBA photo album ............................12-13___________________________________Legal ArticlesBench Briefs ..............................................5Commercial Litigation.............................11Consumer Bankruptcy .............................14Court Notes ................................................8DMV ........................................................15Matrimonial and Family Law....................8Pro Bono ..................................................14Second Circuit Briefs.................................9Trusts and Estates (Cooper).....................11Trusts and Estates (Harper) .....................15___________________________________

Academy News ........................................24CLE Offerings ....................................20-21Among Us ..................................................7Calendar: Academy..................................24Calendar: SCBA ........................................2Committee Corner....................................16Future Lawyers Forum ..............................9

INSIDE…JANUARY 2011

FOCUSCRIMINAL PRACTICE

& PROCEDURESCBA HostsMotivationalSpeaker ___________________By Sheryl L. Randazzo

Happy 2011! How challenging will that date be to write on your next cou-ple of checks? Can you believe it’s been 11 years since the Y2K scare? Orhow about the fact that you have been practicing ___ (you fill in the blank)years? That’s the amazing thing about time … it keeps marching on. Myquestion to you is, are you marching along with it and how are you findingthe journey?

In the spirit of the New Year and an attempt to help all Suffolk County BarAssociation members with their likely New Year’s resolution of doing some-thing better from here on out, on the evening of February 1 the SCBA will behosting consultant, motivational speaker and international bestselling authorJon Gordon in our home. Through very generous sponsorship, most notablyof long time SCBA-supporter U.S. Trust Bank of America Private WealthManagement, Mr. Gordon will be sharing his positive and potentially life-altering perspective at a time when many of us can likely use it.

Why Jon Gordon? Prior to June 2010, in connection with this year’s themeof “In Celebration of Membership,” I undertook to find a book with a mean-ingful message to distribute at the Installation Dinner. Anyone who knowsme knows I love to read, so it was a labor of love and something I personal-ly enjoyed, but finding just the right book was much more challenging thananticipated. That was true until I came upon The Shark and the Goldfish:

(Continued on page 17)

The Very Special New Year’s Resolution

Sheryl L. Randazzo

FOCUS ONCRIMINAL PRACTICE

& PROCEDURESPECIAL EDITION


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Attorney volunteer Rory Alarcon assists a couple in need oflegal advice at a client consultation.

Some of the attorney volunteers, and staff from the SCBA Pro-Bono Foreclosure Settlement Conference Project.

Barry M. Smolowitz

THE SUFFOLK LAWYER — JANUARY 20112

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

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

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

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

For any questions call: 631-234-5511.

January 201110 Monday Judicial Swearing-In & Robing Ceremony, 9:00 a.m. to 11:30 p.m.

Touro Law Center.Insurance & Negligence - Defense Counsel Committee, 5:30 p.m., E.B.T. Room.Healthy Life Series - Part III - Acupuncture, 4 p.m. - 6:00 p.m., Board Room.

11 Tuesday Education Law Committee, 12:30 p.m., Board Room.12 Wednesday Surrogate’s Court Committee, 5:30 p.m., Board Room.13 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.

Municipal Law Committee, 6:00 p.m., Board Room.18 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room.19 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Health & Hospital Law Committee, 5:30 p.m., E.B.T. Room.Board of Directors, 5:30 p.m., Board Room.

20 Thursday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.26 Wednesday Solo & Small Firm Practitioners, 5:00 p.m., Board Room.

FEBRUARY1 Tuesday Membership Appreciation Event - John Gordon, Author and Guest

Speaker and driver of positive change in businesses and organizations.His recent book “The Energy Bus: 10 Rules to Fuel Your Life, Work & Team with Positive Energy” has recently become a best seller.Attendance is free.

2 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room.7 Monday Executive Committee, 12:30 p.m., Board Room.

Insurance & Negligence - Defense Counsel Committee, 5:30 p.m., E.B.T. Room.

8 Tuesday Healthy Life Series - Part IV - Feng Shui, 4:00 p.m. to 6:00 p.m., Board Room.

9 Wednesday Surrogate’s Court Committee, 5:30 p.m., Board Room.10 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.15 Tuesday Solo & Small Firm Practitioners Committee, 5:00 p.m., Board Room.

Commercial & Corporate Law Committee, 5:30 p.m., E.B.T. Room.16 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Health & Hospital Law Committee, 5:30 p.m., Board Room.17 Thursday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.28 Monday Board of Directors, 5:30 p.m., Board Room.

MARCH2 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room

Elder Law & Estate Planning /Surrogate’s Court Committees, 6:00 p.m., Great Hall.

7 Monday Insurance & Negligence - Defense Counsel Committee, 5:30 p.m., E.B.T. Room.

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

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

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

Suffolk County Bar Association

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

E-MAIL: [email protected]

Board of Directors 2010-2011

SUFFOLK LAWYERLAURA LANE

Editor-in-Chief

DOROTHY PAINE CEPARANO

Academy News

Leo K. Barnes, Jr.

Eugene D. Berman

John L. Buonora

Dennis R. Chase

Elaine Colavito

Ilene S. Cooper

Justin Giordano

Robert M. Harper

David A. Mansfield

Craig D. Robins

Frequent Contributors

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

TH

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PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

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

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

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

Association, 2009. Material in this publication may not be stored or

reproduced in any form without the express written permission of The

Suffolk County Bar Association. Advertising offices are located at The

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

427-7000.

Send letters and editorial copy to:

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

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

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

Calend

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

Thomas More GroupTwelve-Step Meeting

Every Wednesday at 6 p.m.,

Parish Outreach House, Kings Road - Hauppauge

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE: 631-697-2499

The Professional Ethics & CivilityCommittee serves the members of theSuffolk County Bar Association by pro-viding advisory opinions to members onan ethical problem that they mayencounter in their daily practice.Advisory opinions are issued only toattorneys concerning their own proposedconduct, not past conduct or the conductof another attorney. The committee does

not consider questions of law or matterswhich are in litigation as such mattersare within the authority of the court todetermine. Inquiries may be mailed tothe committee at: 560 Wheeler Road,Hauppauge, New York 11788-4357, orfaxed to Marion at (631) 234-5899, or e-mailed to [email protected]. Pleaseinclude in all inquiries your name,address, telephone and fax number.

Professional Ethics & Civility Committee

Meet Your SCBA Colleague

THE SUFFOLK LAWYER — JANUARY 2011 3

________________By Renee G. Pardo

It finally happened to me and I wasecstatic! After many incarnations of aprivate criminal defense practice, whichfirst started as a part time way to supple-ment my family’s disposable income, andnow as a single mother, as a way of com-pletely supporting myself for the firsttime in 14 years, I finally got a call at 3a.m. from a prospective client that I hadnever met before. This individual wasgiven an opportunity to call an attorneyfrom the precinct and he had rememberedmy name from a friend and decided atthat moment that I was the one to call.

Now, this may not seem a reason to cel-ebrate but for me on this particularSaturday morning at that obscene hour itwas proof that all my hard efforts werepaying off. My practice was growing,evolving and I knew now that my namewas out there as a result of other clientsthat were happy with the legal representa-tion I had provided. Normally I would getclients after the arrest, after the arraign-ment and through some long chain ofevents or references. In this instance Iwas getting the case from inception andstrictly from word of mouth to someone Ihad never met. I happily and enthusiasti-cally reassured my soon to be client that I

would be there for him. Discreetly, and in Spanish,

we discussed whether he shouldsubmit to a chemical test. Imade arrangements to meet hisgirlfriend in D-11, the arraign-ment part, on Saturday morningwhere I was assured that shewould meet me with money toretain me. As soon as it was notoffensive to call the parents ofmy children’s friends, I leaped into actionand started my quest for play dates so thatI could go to D-11 and not have to dragboth of my boys with me. No such luck,too many softball, karate and swim prac-tices going on that morning. I called myvery short list of babysitters and got onewho agreed to be there within the hour.Unfortunately it was also the one thatdemands $15 an hour, but I was not goingto quibble on this morning! I madebreakfast for my boys, told them the goodnews, took a shower, threw on my suitand kissed them goodbye promising that Iwouldn’t be gone all day and that wewould even celebrate my “extra” case bygoing to see a movie later where theycould buy exorbitantly priced stale pop-corn.

On the way to D-11 my mind was reel-ing. I knew I could do this! It had takentime, but I had finally arrived. I may notever be Paul Gianelli or Billy Keahon butthere was a place for me in this county asa hard working and dedicated criminaldefense attorney! That morning I didn’teven mind when my secure pass wasscrutinized as if I was an expert documentforger by a court officer who sees me incourt every single day. Exactly 60 sec-onds from the front door, everything,especially my good mood changed drasti-cally. The poachers were there, and theywere all around. If you handle criminal

cases in Suffolk County and youever have the opportunity to startwith your client at arraignment,particularly on a weekend, youknow what I mean. The criminaldefense attorney equivalent of theambulance chaser is the D-11“hanger outer.” These are attor-neys that have absolutely noplanned business in D-11 but goanyway in the hopes of picking

up some clients. Please understand, I get that this is a dif-

ficult economy. I understand that there isnow a huge amount of competition for anever dwindling supply of new clients thatcan pay a private attorney. I get that timesare tough for everyone and that attorneysare not immune. I also readily, if notsheepishly admit that I will take any andall opportunities to be in D11 legitimatelyand I frequently cover other attorneysarraignments and any other matters in thatpart specifically so that if someone elseasks me a question or approaches me forinformation I can talk with them and handthem my card in the hopes that they willcontact me for potential representation ifthey currently do not have an attorney.

My ability to speak Spanish has alwaysbeen extremely helpful because when onepotential client hears me speaking their lan-guage, others feel comfortable approachingme. This however was different, and I feltit from the moment I walked into the hall-way that leads to D-11.

There were attorneys, specifically twoof them that were working in tandem.One was sitting on the bench with a penallaw in his hand, taking notes and fre-quently going back to look at the list post-ed on the wall with the day’s arrests list-ed. The other one was standing there andoffering unsolicited advice (in Englishand in Spanish I might add) to people

who would approach looking for theirloved ones names on the arrest list. Iknew something was wrong and myblood ran cold as I heard the words inSpanish “no, please, I want you to takemy boyfriend’s case.” When I called outthe family name of my client the youngwoman who had just uttered those wordsto this other attorney turned to greet me.It took her all of 30 seconds to explain tome in Spanish that she was the girlfriendof the man that had called me earlier andthat based on what she had just learnedfrom the “nice attorney in the hallway”she no longer wished to retain my ser-vices. I explained to her that in fact herboyfriend specifically asked for me andhad called me to come there that morningbecause he knew I would do a good job.She told me immediately that her newattorney had agreed to work for half ofwhat I was going to charge and that herboyfriend would call me if they changedtheir mind.

As fast as I had felt so good about mydeveloping practice, I suddenly felt likesomeone had punched me in the stomach.What had I done wrong? I had been reas-suring; I had taken the time to provide thebest advice possible given the circum-stances of my potential client’s arrest; Ialso had flown like a bat out of hell fromhome to be there at precisely 9:15 a.m.(Arraignments typically don’t get startedtill 10 a.m. or 10:30) and yet I was a daylate and at $15 an hour for a babysitter athome, I was way more than a dollar short!I gathered myself together so that I couldspeak to this poacher who had so skillful-ly taken my client. At this point he wasalready in the courtroom putting in a slipso that he would be attorney of record ofmy short lived client. “Excuse me” I saidto him, “that woman was sent here to

Sending a Message to the Poachers in D-11

Renee G. Pardo




a partner at Wickham Bressler Gordon & Geasa, P.C., is a trailblazer. In her 1970law school graduation class of 250 she was one of only five women.

_____________By Laura Lane

The practice of law was somewhat of amen’s club 40 years ago, but Lynne M.Gordon persevered and was able to have itall. Married with a child, she was hired bySchechter, Schechter & Wishod in 1975.Working at the prestigious firm grantedher far more than a great job. Schechter &Wishod were responsible for obtaining theproperty for the Suffolk County BarAssociation’s building in Hauppauge. ForMs. Gordon, a long association with thebar was only beginning.

Were you encouraged by youremployer to join the SCBA? The firmwas heavily orientated toward bar associa-tion membership and supported the impor-tance of the SCBA in Suffolk County. Andtwo attorneys, Herman Schechter andEugene Wishod became SCBA president’swhile I worked at the firm.

It was a big deal acquiring the proper-ty for the SCBA at the time wasn’t it?Prior to Irving Schechter finding the prop-erty, members of the bar association wouldhave dinner meetings once a monththroughout the county.

Why was membership in the SCBAvaluable at that time? There were not manyattorneys in Suffolk County then. There cer-

tainly wasn’t the networking that we havenow. Being a member of the SCBA affordedyou the opportunity to meet other attorneysand learn about the business of law on LongIsland.

There weren’t any requirements tocontinue to learn in the profession,right? There was no established or manda-tory legal education at the time. The barraised the standards of all of us and provid-ed a bonding for us. We had a civility andrespect for each other at that time.

Isn’t it true that there weren’t manywomen in the profession at that time?When I began practicing law there weretwo large firms that considered hiring mebut didn’t because they weren’t sure howwomen would do.

What led you to become an attorney?Well I had no role models but the profes-sion looked interesting to me. Back when Iwas in 9th grade I had a friend whose father,Raymond Schafer, was a state senator. Hisoffice was in his house and when I went tothe house I saw that he had all of thesebeautiful books and that attracted me.Senator Schafer was absolutely charming,intelligent and dignified. I wanted to be justlike him. Television shows like PerryMason influenced me too.

What was it like being a woman goinginto law at that time? It never occurred tome that I couldn’t. When I was in lawschool there was harassment by the teach-ers and when I wanted to work in theDistrict Attorney’s office I was told indi-rectly that they didn’t hire women. I alwaysbelieved that you put your head down andyou did it.

You became pregnant with your secondchild when you were an attorney. Wereyou worried this would cause a problem?I took only two weeks off after my child wasborn. As much as I loved my partners, I was-n’t sure how it would go down. Many of usdid this at that time. We put a strain on ourfamily to show we could do it.

You’ve been active at the SCBA. Youchaired a couple of committees, co-chaired the Commercial Law Committeefor a few years and were a director from2007 until 2010. After all these years whydo you find continuing your membershipin the SCBA of value? You meet otherlawyers and people you wouldn’t ordinari-ly meet, like judges and people in privatepractice. And you learn a great deal aboutthe profession as well especially in com-mittee meetings. I believe it is always use-ful to be with people in the same field andwith people who have more experiencethan you.

Would you recommend membershipto others and what advice do you havefor new attorneys? Yes I would recom-mend attorneys join. It’s important to get ahandle on what practicing is like in SuffolkCounty. It is different than going west.Also the CLE’s that the SCBA offers arewonderful. My advice to new attorneys is,remember that there is tremendous stress inlaw. Try to have fun with it. Lawyers arepretty nice people most of the time.

Note: Laura Lane is the Editor-in-Chiefof The Suffolk Lawyer. She is an award-winning writer, former journalist, and cur-rently is the Assistant Director of theHAVA Department at the Nassau CountyBoard of Elections.

Lynne M. Gordon

Lynne M. Gordon

____________By Harry Tilis

In the first nine months of2010, the Second Departmentreversed three Suffolk Countyjury verdicts of guilty on mur-der in the second degree.1 Ineach of the cases, the SecondDepartment found that the evi-dence of guilt was legally suffi-cient but not overwhelming so,for in none of the cases did the SecondDepartment reverse based on a review of

the evidence. Instead, in each ofthe three cases, the reversal wason process grounds implicatingwhat Abdul and Slice imply andGibian says was nonconstitution-al error implicating theDefendant’s right to a fair trial.

Together, Abdul, Gibian andSlide stand for the propositionthat nonconstitutional error canbe the basis for reversal when

evidence of guilt is not overwhelmingand “it cannot be said that there is no sig-nificant probability that the verdict wouldhave been different absent these errors.”2

In other words, “where proof of a defen-dant’s guilt is not overwhelming, ‘everyerror of law (save, perhaps one of thesheerest technicality) is, ipso facto,deemed to be prejudicial and to require areversal, unless that error can be found tohave been rendered harmless by theweight and nature of the other proof.”3

Both Abdul and Gibian involved con-

________________By Scott Lockwood

In 2006, the United States SupremeCourt overruled its prior holding in Ohiov. Roberts, 448 US 56 (1980) and whollychanged the conceptual framework sur-rounding the admission of hearsay state-ments under the Sixth Amendment.Under the Roberts formulation, if a wit-ness was unavailable the witnesses’ testi-mony could be admitted through a thirdperson if it was found to have "adequateindicia of reliability." Generally, this wastaken to mean that the statement fell with-in a "firmly rooted hearsay exception" orhad "particularized guarantees of trust-worthiness."

In Crawford, the Supreme Court reject-ed the Roberts formulation and held that“[t]estimonial statements of witnesses

absent from trial have been admitted onlywhere the declarant is unavailable, andonly where the defendant has had a prioropportunity to cross-examine,” Crawfordv. Washington, 541 US 36 (2006).

The Supreme Court again revisited the


Constitutional Grounds for the Defense to Admit Evidence

Harry Tilis



Wither Now CrawfordDWIs and the Sixth Amendment





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Our Special Section Editor for January RENEE G. PARDO, ESQ. , founder of the Law Offices of Renee Pardo, P.C. is

a sole practioner concentrating in the area of criminal defense. She is a past lec-turer for Hofstra University’s Continuing Education Program and an active mem-ber and board member of Suffolk County’s Criminal Bar Association.Additionally, Ms. Pardo is a former Suffolk County Assistant District Attorney aswell as a former Tarrant County, Texas Assistant District Attorney. Ms. Pardo hasparticipated as a speaker at a number of SCBA CLE programs and as a bilingualadvocate volunteer for New York’s Proyecto Adelante.

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• Criminal Cases: Competency Issues, Criminal

Responsibility, Extreme Emotional Disturbance, Risk

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Custody/Visitation, Neglect/Abuse, Termination,

Delinquency, Family Violence, & Adoptions

• Civil Cases: Competency Issues, Head Trauma,

Sexual Harassment, Discrimination, Immigration,

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_________________By Renee G. Pardo

After 43 years of a hugely successfuland highly productive legal career, theHonorable Judge Salvatore A. Alamia ison the precipice of a well deserved retire-ment. 17 years after becoming a judge,Judge Alamia has many concerns for thefuture of the judiciary, the bar and thepublic that they serve, however, he is notconcerned about how he himself will beremembered as a judge. He knows sim-ply that “love him or hate him” he willdefinitely always be remembered. Thereason, he says, is that he was alwaysproactive and being complacent was just

not something he would tolerate fromhimself, his staff, or the attorneys thatappeared before him.

“The judiciary is the third branch ofgovernment; we are supposed to governin our own sphere,” he said. “We owesomething to the people we govern andwe have to do something more than justdirect traffic.”

In 1997 until 2004, Judge Alamia wasthe first Acting County Court Judge topreside over the Suffolk County DrugTreatment Court. While other membersof the judiciary had no interest in this typeof assignment, Judge Alamia saw aunique opportunity to do what he loves todo best - actively help people make a dif-ference in their own lives and the lives oftheir families by bringing them back intosociety after they serve the appropriatepenalty. Judge Alamia talks even nowabout his “great crew in the drug court”and how what they did on a daily basis inhis courtroom became known state wideand became a model for other courts.Very open about his dislike of politicsand what he feels is the “overwhelmingcontrol” politics now has over the judicia-

ry, Judge Alamia says of his years presid-ing over the drug court, that he was ableto use the statewide politics of the time tobe in a position to help more people.Additionally, he says while some used thephrase ”problem solving court” and oth-ers referred to the drug court negativelyas a “social work court” he only saw that

Salvatore A. Alamia Retires“Maverick” Judge spent long career helping those that others could not reach

Judge Salvatore A. Alamia, center, wasjoined by Judge John Andrew Kay, andAssistant District Attorney Ave MariaThompson at his retirement party held onNov. 17 at Captain Bills.




Suffolk County Supreme Court

Honorable Paul J. Baisley, Jr.

Summary judgment granted; movingdefendant did not design, sell, or distrib-ute the allegedly defective product; plain-tiff’s continued maintenance of thisaction after having been apprised thatPolder, Inc. was not a proper defendantwas “frivolous.”

In Maria Burdish v. PolderCorporation, Polder, Inc., and PolderInternational, Inc., Index No.: 36440/09,decided on June 7, 2010, the court grant-ed defendant’s motion for summary judg-ment. The submissions established thatPolder, Inc. was a New York corporationengaged in the real estate business andthat it had no connection with the designor distribution of stepladders.Defendant’s submissions thus, estab-lished, prima facie, that it was not liablefor the plaintiff’s injuries as it did not

design, sell, or distribute the allegedlydefective product. Plaintiff submitted noopposition. The court pointed out thatdespite having been appraised on severaloccasions that plaintiff sued the wrongentity, and that a Connecticut corporationalso named Polder, Inc. manufacturedand distributed such products and was theproper defendant, plaintiff’s counselfailed and refused to discontinue theaction against the movant. Defendant wasthen compelled to interpose an answerand the instant motion for summary judg-ment. Based upon these circumstances,the court found that plaintiff’s continuedmaintenance of this action after havingbeen apprised that the New YorkCorporation Polder, Inc., was not a prop-er defendant was “frivolous” within themeaning of 22 NYCRR §130-1.1(a).

Motion to vacate judgment denied;movant had not commenced an actionwith the filing of a summons and com-plaint.

BENCH BRIEFS

Book Reviews WantedNearly everyone likes to read, but finding the right book can be a challenge. If

you’ve enjoyed reading a book, review it in The Suffolk Lawyer. The length andstyle of the review is up to you. Just share with SCBA members why you likedthe book or, if it’s a legal publication, how you found it useful in your practice.Send your book review to [email protected].



_____________By Laura Lane

It is difficult to ask for help. FatherPeter Sweisgood knew this firsthand. Arecovered and rehabilitated alcoholic hebecame the executive director of the LongIsland Council on Alcoholism in 1981 andlater its president. He was also the found-ing member of the board of directors ofthe Freedom Institute, a counseling centerthat help people combat chemical depen-dency.

Father Sweisgood received manyawards and recognitions in his lifetimeand worked very closely with theLawyers’ Committee on Alcoholism andDrug Abuse at the state and local levels.He received a special award from theSuffolk County Bar’s Lawyers’Committee on Alcohol & Drug Abuse in1988. Sadly, he passed away in 1989. The SCBA honors his commitment andcourage each year at the Peter SweisgoodAnnual Dinner, sponsored by the Lawyers

Helping Lawyers Committee.Continuing a tradition of providing

expert advice which comes from thosewho have recovered, there were a numberof distinguished guest speakers featured atthe dinner this year who shared their sto-ries to inspire those who have struggledwith alcoholism and addiction and givethose who haven’t, a glimpse into the dis-ease that, if untreated, can ruin relation-ships and careers.

The SCBA Lawyers’ Helping LawyersCommittee is committed to helping mem-bers suffering from alcoholism and/ordrug addiction by providing direction,encouragement, and the resources avail-able to help attorneys kick their habit and

once again lead productive and healthylives. They carry on Father Sweisgood’stradition.

Note: Laura Lane is the Editor-in-Chief

of The Suffolk Lawyer. She is an award-winning writer, former journalist, andcurrently is the Assistant Director of theHAVA Department at the Nassau CountyBoard of Elections.


The Suffolk County Bar Pro Bono Foreclosure Settlement Conference Projectacknowledges with gratitude the following attorneys who have been representingthe people of Suffolk County that have been impacted by the foreclosure crisis:

The SCBA would also like to recognize John Gannon, Raymond Lang, BarryLites and Karen Napolitano who’ve had five or more court appearances inNovember. When you see your colleague volunteer attorney in court or at theBar Center say a special thank you to any one of them who have stepped up tothe plate to help the hundreds of citizens in Suffolk County who are struggling inthis time of crisis. Thank you to Barry M. Smolowitz, Project Coordinator andAdministrator Melissa McManaman who work tirelessly to keep the project run-ning smoothly.

— LaCova

Thank You ForeclosureSettlement Project

John Aicher Rory Alarcon Susan Beckett Anadel Canale Jeffrey Canarick James Corcoran Vincent Cuocci James Gentile Charles Gleis Richard Guttman

Barry Heettner Jeffrey Herzberg Irwin Izen Melissa Kollen-Rice Cheryl Mintz James Moran Curtis Morrison Pearl Murphy Mark Needleman Jerem O’Sullivan Ernest Ranalli

Amanda Reilly Joseph Rosenthal Eric Sackstein Jessica Sparacino Peter Tamsen Robbie Vaughn Aida von Oiste Trudie Walker Glenn Warmuth Paula Warmuth

SCBA Carries on the Sweisgood Tradition

“Psychiatry has failed, medicine has failed, and theclergy have failed in dealing

with alcoholism. The onlyexperts we have are the

people who have actuallyrecovered from it.”Father Peter Sweisgood

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On the Move…Richard G. Chalifoux, of

U.S. Trust, Bank of AmericaPrivate Wealth Managementhas relocated his office to 300Broad Hollow Road, Melville,NY 11747. He can be reachedby phone at (631) 547-7629 orby fax at (800) 976-2910.

Eric Naiburg, GlennObedin & Ira Weissman are pleased toannounce that their firms have merged.The new firm will be known as Naiburg,Obedin & Weissman LLP. Offices arelocated at 320 Carleton Ave. Suite 2500Central Islip, NY 11722. Mr. Naiburg andMr. Obedin were each, at different times,partners with The Honorable MartinEfman Acting Judge of the County Court.

Joseph Dujmic, former AssistantCounty Attorney in Suffolk County ahsjoined the firm of Bryan l. salamone&Associates, P.C.

Howard E. Gilbert, of the law offices ofHoward E. Gilbert has relocated his officesto 532 Broadhollow Road, Suite 107,Melville, N. Y., 11747-3609. His phonenumber is (631) 630-0100; fax: (631) 630-0101; website: www.gilbertlegal.net andemail address is: [email protected]. The practice will continue its con-centration in Labor and Employment Law.

Congratulations…Michael J. Isernia, was appointed by

the Board of Education of the SachemCentral School District at Holbrook, to filla vacant seat on the Board for the remain-der of the 2010-2011 term. He was swornin at their Regular Board Meeting onNovember 17.

Announcements,Achievements, & Accolades…

SCBA Director Annamarie Donovanhas once again been invited to visit theUniversity of Oxford in England inMarch, 2011 for a five-day programinvolving Women's Justice. The session is“Gender and Justice: Religion, Cultureand Politics.” The Oxford Round Tablesession will involve social justice forwomen worldwide that is primarilydependent on religion, culture and poli-tics, i.e., topics such as, marital property,pro-choice, anti-abortion, adultery, ston-ing, educational opportunity, etc., all ofwhich are prominent daily fare in themedia of both Eastern and Western soci-eties.

Richard G. Chalifoux was recentlycertified as an Accredited Estate Planner®(AEP®) by the National Association ofEstate Planners and Councils.

Paul Hyl, a senior associate at GenserDubow Genser & Cona (GDGC) has beenappointed to the Board of Directors ofDowling College Center for Inter-genera-tional Policy and Practice in Oakdale.

Richard K. Zuckerman, of Lamb &Barnosky, LLP, was a member of a panelpresenting on " A Review of RecentDecisions at PERB" sponsored by theNYS Bar Association's Labor and

Employment Law Section atit's 35th Annual Fall Meetingin Longboat Key, Florida onNov. 1.

Sharon N. Berlin, of Lamb &Barnosky, LLP, spoke at theSuffolk County Bar Association'sLabor and Employment LawCommittee meeting on the topic"Social Networking Issues inLitigation" on Nov. 16.

Sole Practitioner Lance R. Pomerantzjudged the final round of competition in the15th Annual Yale Mock Trial InvitationalTournament held at Yale University onDecember 4th and 5th. The trial showcasedstrong teams from the University ofMichigan and NYU. The competition fea-tured 44 teams from 24 different schools ineleven states and the District of Columbia.

Condolences….To Past President Harvey B.

Besunder, whose mother, Gertrudepassed away on December 5. In lieu offlowers, food, etc. the family asks thatdonations in Gertrude Besunder’s namebe sent to either the North Shore JewishCenter or to the SCBA’s LawyerAssistance Foundation.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: John C. Batanchiev, JuanaCortes de Torres, Jennifer L. DeVenuti,Susan E. Fine, James M. Gibbons,Lauren Kanter, Michael Masri,Kimberly R. McCrosson, Gary R.Novins, Douglas P. Perry, KatherineRocafort, Angela May Sapienza, AndreaL. Tse and Steven A. Wood, Jr.

The SCBA also welcomes its neweststudent members and wishes them successin their progress towards a career in thelaw: Evan Gotlob and Steven Saal.

On the Move –Looking to Move

This month we feature two employmentopportunities and three members seekingemployment. If you have an interest in thepostings, please contact Tina at the SCBAby calling (631) 234-5511 ext. 222 andrefer to the reference number followingthe listing.

Firms OfferingEmployment

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

Paralegal Studies (A.B.A. approved)/C.W. Post seeks an instructor. Seekingrésumés from attorneys expert in the areaof family law and knowledgeable aboutthe paralegal profession. Experience work-ing with paralegals is required. Law #17.

Members SeekingEmployment

Newly Admitted attorney seeking full-time employment. Experience, as legal


SIDNEY SIBEN’S AMONG US

Jacqueline M. Siben


More Than 40 Years Of Significant Experience In:CONDEMNATION, TAX CERTIORARI, ZONING,

LAND USE LITIGATION, COMMERCIALAND REAL PROPERTY LITIGATION

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Bay Shore, NY 11706(631) 968-7600 Fax: (631) 665-4293


________________By Lloyd C. Rosen

Unlike child support orders emanatingfrom a hearing or trial decision, child sup-port provisions set forth in agreements,and later incorporated without mergerinto orders, have been for many like a balland chain shackled to their ankle withoutany hope for reprieve. This had beenequally true for both support payees seek-ing an increase and support payors seek-ing a decrease in child support. While asupport order issued after a hearing ortrial can be modified by the court upon ashowing of a change of circumstances,modifying a support obligation set forthin a stipulation has proven far more elu-sive. The recent economic climate hasprompted parties to seek upward anddownward modifications of child supportorders, only to have their petitions dis-missed for failure to meet the thresholdslong-established by Boden and Brescia.

For many years, practicing matrimoni-

al attorneys have relied uponthe leading cases of Boden v.Boden, 42 N.Y.2d 210, 366N.E.2d 791 (1977), and Bresciav. Fitts, 56 N.Y.2d 132, 436N.E.2d 518 (1982), in advisingclients that a child supportobligation negotiated in anagreement and incorporatedinto an order is very difficult tolater modify. These cases state,generally, that before a court shouldentertain an application to modify anorder of child support incorporating,without merger, the terms of a stipulation,the moving party must demonstrate anunanticipated and unreasonable change incircumstances has occurred since the dateof the order, resulting in financial hard-ship or insufficient resources to meet theneeds of the child. There has also been ineffect a little-known loophole carved outin Family Court Act §413-a, whichenables a party to obtain a de novo deter-

mination of child support, thusentirely avoiding the Boden andBrescia standard of proof if threecriteria are met; (1) the supportorder is being paid throughSupport Collections, and (2)Support Collections sends out anotice of Cost of LivingAdjustment, and (3) any partyobjects to the automatic Cost ofLiving Adjustment within 35

days of the notice.The New York State Legislature has

recently modified Domestic Relations Law§236(B)(9)(b)(2) and Family Court Act§451(2), effective October 13, 2010, in amanner which seemingly eliminates theBoden and Brescia thresholds in an addi-tional yet different manner than providedfor in Family Court Act §413-a. Perhaps itis the increasing incidence of financialhardship in our present economy that moti-vated the legislature to make it easier foreither parent to seek modification of a childsupport obligation even if based upon anagreement.

All newly signed stipulations and courtorders pertaining to child support are sub-ject to new standards with regard to mod-ification of child support. A party seek-ing modification of a support order needsnow to demonstrate only a substantialchange in circumstances to have occurredsince the date of the order or the date theorder was last modified, even if the sup-port order is based upon an agreement,without having to meet the previouslyrequired Boden and Brescia thresholds.Establishing “substantial change in cir-cumstances” is a much lesser burden thanthe previously required “unanticipatedand unreasonable change in circum-stances.” The newly enacted legislation,DRL §236(B)(9)(b)(2) and FCA §451(2),also provide two additional thresholds formodification, in relevant part, as follows:

“. . . unless the parties have specifical-ly opted out of the following provisionsin a validly executed agreement or stipu-lation entered into between the parties,the court may modify an order of childsupport where: (i) three years have passedsince the order was entered, last modifiedor adjusted; or (ii) there has been achange in either party's gross income byfifteen percent or more since the orderwas entered, last modified, or adjusted.”

The parties can opt out of these thresh-olds but only by a validly executed agree-ment in writing.

It is notable that the new laws providethat the courts “may” (rather than “shall”)modify an order of support under thesespecified circumstances. This language isclearly intended to continue the court’sdiscretion in whether or not to actuallymodify the order of support. The legisla-ture has lowered the bar for parties seek-ing modification, and has seeminglyunraveled the complicated web of Boden,Brescia and their progeny, without actu-ally mandating modification when thestated thresholds have been met.

Based upon this development, unlessthere is an opting out of these new stan-dards, it appears less likely that a negoti-ated deviation from the Child SupportStandards Guidelines cannot be dependedupon for any length of time if either partybecomes dissatisfied with the agreement.Stay tuned as the courts grapple withthese issues in the future.

Note: Lloyd C. Rosen, an associateattorney at Wisselman, Harounian &Associates, P.C., has substantial litiga-tion and appellate experience and han-dles all aspects of matrimonial and fami-ly law. Mr. Rosen regularly appears andlitigates in the Family and SupremeCourts throughout Long Island and thefive boroughs of New York City.

Has the Bar Been Lowered for Child Support Modifications?MATRIMONIAL AND FAMILY LAW

Lloyd C. Rosen

______________________By Ilene Sherwyn Cooper

Appellate Division-Second Department

Attorney Resignations The following attorneys, who

are in good standing, with nocomplaints or charges pendingagainst them, have voluntarilyresigned from the practice oflaw in the State of New York:

Laura M. RapacioliRichard C. SammisRichard Barton SchoenfeldKathryn A. ScholleAva SolomonJoseph Paul TerranovaWilliam B. ThompsonPaul L. TractenbergRobert VischerAdam P. WarnerJordan Raphael Yellin

Attorney Reinstatements Granted The application by the following attor-

neys for reinstatement was granted:

Howard J. Pobiner

Decisions of InterestSecond, Ninth and EleventhJudicial Districts

Attorneys Suspended

Nadeen R. Gayle: By letter,dated April 19, 2010, theGrievance Committee informedthe court that the respondent wasfound guilty of one count to

commit conspiracy to commit visa fraud,and three counts of visa fraud emanatingfrom his participation in a scheme to fileimmigration documents which containedfalse statements of material facts. As aconsequence, the respondent was imme-diately suspended from the practice oflaw as a result of his being found guilty ofa serious crime, and the GrievanceCommittee was authorized to instituteand prosecute a disciplinary proceedingagainst him.

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

COURT NOTES

Ilene S. Cooper

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Note: The opinions are thoseof the writer and not of TheSuffolk Lawyer or the SuffolkCounty Bar Association.______________By Sarah Valente

Between all the napkins, wrap-pers, bottles, cans, disposablecontainers, toilet paper, paperplates, etc., have you ever taken amoment to consider how muchtrash you produce in a day? In 2009’sSuffolk County Solid Waste ManagementReport and Recommenda-tions, it wasreported that in a five day week in 2006,Suffolk County produced approximately2,762 tons of trash per day (see chart forbreakdown by town)1. Wow, that’s a lotof trash! With these figures it should comeas no surprise that New York State pro-duces more tons of garbage per personthan most states, and that Long Islandersproduce the most garbage within all ofNew York State, at approximately 6 mil-lion tons per year, as per Vernon Rail,Assistant Regional Attorney for Region 1of Office Environmental Justice, NewYork State Department of EnvironmentalConservation2.

If you do not think this is a problem,consider the fact that for many years andeven today (although with more restric-tions) landfills are a main source of waste

disposal in Long Island; thisdoes not seem very appealing orhealthy considering the fact thatSuffolk County houses a federal-ly designated Sole SourceAquifer that is the only source ofdrinking water for all of LongIsland. Although the enactmentof the Long Island LandfillClosure Law, N.Y. Envtl.Conserv. Law (ECL) §27-0704

(McKinney, 1984) closed several LongIsland Landfills and banned dumpinggarbage into landfills in areas overaquifers, landfills such as the BrookhavenLandfill (Long Island’s highest “natural”point, which can be seen from theAtlantic Ocean, as per Vernon Rail3) stillaccept waste. In 2009, Long Island land-fills disposed of approximately 1.7 mil-lion tons of waste.4

If you still do not think this is a prob-lem, take a look at your tax bills. Thegarbage disposal is a 30 billion dollarindustry. In 2006, Suffolk County alonespent over $75,000 in waste managementcosts (this is excluding sewerage whichaccounted for over $23,520,000 incosts)5. As a result of the closing of land-fills, restrictions placed on waste productsaccepted by landfills, increased popula-tion, and increased waste, Long Island

Time to ReactFUTURE LAWYERS FORUM

Sarah Valente


___________________By Eugene D. Berman

This month we discuss theUnited States Court of Appealsfor the Second Circuit’s deci-sion in Duarte-Ceri v. Holder,No. 08-6128-ag, 2010 WL4923559 (2d Cir. December 6,2010) concerning a petition forreview from a Board ofImmigration Appeals’ (“BIA”)refusal to reopen removal proceedings.

Ramón Antonio Duarte-Ceri (“Duarte”)was born in the Dominican Republic onJune 14, 1973. In 1981, when he waseight years old, Duarte was admitted tothe United States as a lawful permanentresident. On Duarte’s 18th birthday –June 14, 1991 – his mother was natural-ized as a United States citizen.

Thereafter, in 1995, the Immigrationand Naturalization Service, by an Order toShow Cause, charged that Duarte wassubject to deportation as a non-citizenconvicted of a controlled substanceoffense and an aggravated felony.(Section 237 of the Immigration andNationality Act (“INA”), 8 U.S.C. § 1227,provides that an alien can be removed if,after admission to the United States, he orshe is convicted of an aggravated felony,8 U.S.C. § 1227 (a) (2) (A) (iii), or a vio-lation relating to a controlled substance, 8U.S.C. § 1227(a)(2)(B)(i). See 8 U.S.C. §1101(a)(43), defining “aggravated felony”and 21 U.S.C. § 802(6) defining “con-trolled substance.”).

Duarte argued that he is not subject toremoval because he is a United States citi-zen by virtue of former INA § 321(a), 8

U.S.C. § 1432(a) (1999), repealedby the Child Citizenship Act of2000, PL 106-395, October 30,2000, 114 Stat 1631, 1632.Former § 1432(a) is applicablesince it was in effect whenDuarte’s mother received her citi-zenship in 1991. Duarte-Ceri,2010 WL 4923559*3, citingAshton v. Gonzales, 431 F.3d 95,97 (2d Cir.2005) (“To determine

whether [petitioner] obtained U.S. citizen-ship as a result of his mother’s naturaliza-tion, we apply the law in effect when [peti-tioner] fulfilled the last requirement forderivative citizenship.”).

As applicable here, former § 1432 (a)provided that a “child born outside of theUnited States of alien parents … becomes acitizen of the United States [when t]he nat-uralization of the parent having legal cus-tody of the child … takes place while suchchild is under the age of eighteen years; and[s]uch child is residing in the United Statespursuant to a lawful admission for perma-nent residence at the time of the naturaliza-tion of the parent.” (Emphasis added).

The issue before the Second Circuitwas whether “Duarte still qualified as‘under the age of eighteen years’ whenhis mother was naturalized on the morn-ing of his eighteenth birthday.” Duarte-Ceri, 2010 WL 4923559*3. The courtassumed Duarte’s claim – because theBIA conducted no fact-finding on theissue – that he was born in the evening (ofJune 14, 1973) and his mother was natu-ralized in the morning (of June 14, 1991).

In its split opinion, the court’s majority

They Say It’s Your BirthdaySECOND CIRCUIT BRIEFS

Eugene D. Berman


Chris McDonough, Esq.PROFESSIONAL DISCIPLINARY MATTERS

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_________________By Dennis R. Chase

Following the release of Pink Floyd’sThe Wall, 30 years ago, mastermindRoger Waters performed, flawlessly, theentirety of the masterpiece on Nov. 3 atthe Izod Center in East Rutherford, NewJersey. Earth shattering upon release, per-fectly poignant in performance in 1990following the fall of the Berlin Wall, andpersonally relevant for Waters even now,the tour centers on an increased emphasisof an antiwar message which is deliveredwith both clarity and incredible attentionto detail. In what is rumored to beWaters’ final tour, he literally spared noexpense (with the cost of staging theshow reported to be in excess of $60 mil-lion). The show not only exceededexpectations, but was aptly hailed byCole Moreton of the Daily Mail as “oneof the most ambitious and complex rockshows ever staged.”

Waters incorporated photographs thathe personally solicited from his fansthrough his Facebook page. A multitudeof images of loved ones sacrificing theirlives to war invoked emotions that attimes were downright disturbing, as wasthe portion of a speech delivered byDwight D. Eisenhower over 50 years ago.“Every gun that is made, every warshiplaunched, every rocket fired, signifies, inthe final sense, a theft from those whohunger and are not fed, those who arecold and not clothed.”

Waters delivered his message exuber-antly and with a vengeance . . . a messagenot lost by any of those in attendance.

The show begins, however, long beforethe soft, soothing sounds of Waters him-self, trumpeting the opening notes to“Outside the Wall.” As the crowd gath-ers, a seemingly homeless man pushes ashopping cart filled with cans around thevenue sporting a sign reading ‘Nothought control’ on one side and,‘Homeless people need money for boozeand hookers’ on the other. As he reachesthe stage area, he tosses the originalstuffed Pink doll from the 1979 tour ontothe stage as the audio switches to an audiotrack from the movie Spartacus whereslaves can be heard shouting, each claim-ing to be Spartacus.

As the offstage Waters’ trumpet solosegues into the opening chords of “In theFlesh?,” all hell breaks loose. With an

amazing pyrotechnical displayand stage hands dressed as sol-diers wielding flags with thenow familiar marching ham-mers logo storming the stage,Waters finally appears donninga long black trench coat. Theopening number culminateswith a giant replica of a StukaDive Bomber crashing the stagewith ear shattering explosions offire. The stage is now set for the balanceof the show and the building of The Wall.Waters assembled only the finest musi-cians to recreate the experience including,Graham Broad (drums, percussion,ukulele), Dave Kilminster (guitar, banjo),G. E. Smith (guitar, bass guitar, man-dolin), Snowy White (guitar), Jon Carin(keyboards, guitar, lap steel guitar), HarryWaters, his son, (Hammond organ, key-boards, accordion), Robbie Wyckoff(lead vocals), Kipp Lennon (backingvocals), Mark Lennon (backing vocals),and Pat Lennon (backing vocals)

During the first half of the show, TheWall is slowly built up brick by brickseamlessly by stagehands and followingthe end of “Goodbye Cruel World,” thelast brick is put in place and the 30 foothigh wall is complete. An intermissionfollows with photos and short bios ofpeople lost in conflicts that are projectedonto the wall.

Aside from the truly amazing stagingof the show, the delivery of sound wasflawless with huge arrays of speakers notonly hanging from both the left and rightof center stage, but similar arrays hangingfrom both sides of the center of the venueand one tremendous array hanging at therear of the venue. The sonic effects ofthese strategically mounted arrays resultsin truly three dimensional sound, a featWaters has been seeking to perfect sincethe release of Amused to Death in 1992.From the crash of the dive bomber at theend of “In the Flesh?” to the approach ofthe helicopter in the beginning of “TheHappiest Days of Our Lives,” Waters’placement of these speaker arrays man-ages to maintain a heretofore unsurpassedsense of spatial imagery throughout theshow.

While there were those pining forDavid Gilmour’s vocals, RobbieWyckoff performed these songs morethan admirably, filling, admittedly, some

pretty big shoes.Perhaps the most visceral

images displayed by Waters onThe Wall appear during an espe-cially heart wrenching renditionof “Bring the Boys Back Home”and consist of true life videos ofyoung children being reunitedwith their veteran fathers. Thoseclamoring for Waters’ patentedinflatable pig won’t be disap-

pointed either. The pig is released asWaters begins to interrogate the audiencemembers to determine “who let all thisriff raff into the room” and prior tolaunching into “Run Like Hell.” Waters’production also features much larger thanlife computer controlled puppets of theSchoolmaster and others throughout theshow.

Following Gerald Scarfe's animatedsequence displayed during “The Trial” asthe song reaches is steady climax, thecrowd begins shouting "Tear down TheWall!" While one ponders just howWaters accomplishes the final scene, it isnothing less than truly spectacular . . . thewall crumbles violently from the topdown amid smoke and deafening explo-sions while a flurry of red paper confettidrops onto the audience. The entire bandthen emerges from behind the rubble asWaters again hoists his trumpet to begin“Outside the Wall” backed with a variety

of acoustic instruments from fellow bandmembers. Waters introduces the band tothe crowd, thanks the audience on behalfof each member while doing so, and thenexits the stage.

According to Matt DeMarco of TheHofstra Chronicle Online, the technolog-ical aspect of this show was astounding.He wrote, “Musically, the show was justas phenomenal. [W]aters, himself,proved that rock ‘n roll has no age limit.At 67 years old, the rock icon played aflawless show, hitting notes that he washitting 30 years ago. His energy was vis-ibly present; he was truly excited to beperforming this album for a live crowdagain.”

‘Nuff said.

Editor’s Note: Dennis R. Chase is thecurrent Second Vice President of the SuffolkCounty Bar Association, a frequent contrib-utor of The Suffolk Lawyer, and a partnerwith The Chase Sensale Law Group, L.L.P.The firm, with offices conveniently locatedthroughout the greater metropolitan areaand Long Island, concentrates their prac-tice in Workers’ Compensation, SocialSecurity Disability, Short/Long TermDisability, Disability Pension Claims,Accidental Death and Dismemberment,Unemployment Insurance Benefits, andEmployer Services.


_______________By Amy Chaitoff

East meets West at “TheHealing Power of Acupuncture,”the next program that will bepresented by the “Healthy LifeSeries” on Monday, January 10,2011, from 4-6pm in the BoardRoom. Guest speaker Nicole V.Rotondi, L.Ac., Dipl. Ac., MS.,will be speaking about howacupuncture can significantly help a mul-titude of health problems caused by ener-gy blockages from stress, pain and evenallergies. Some of the common problemsthat busy adults often experience todaywill be addressed such as constantfatigue, anxiety, headaches, body pain,chronic sickness, digestive issues, skindisorders, and even breathing problemsand fertility issues.

After the discussion, there will be anopportunity to relax and network withMs. Rotondi and other like-mindedSCBA colleagues over wine and cheese.But space is limited, so pre-registrationis strongly encouraged. The cost is $15for pre-registrants (if received byJanuary 6) and $20 thereafter. You canregister by contacting Marion at (631)234-5511 x230.

Note: Amy Chaitoff is the HealthyLife series coordinator. She is a solo

practitioner with a practicein Bayport. Her practicefocuses on representing indi-viduals, organizations, andbusinesses with animal relat-ed legal issues. She is co-founder and immediate pastco-chair of the SuffolkCounty Bar Association'sAnimal Law Committee andvice chair of the New York

State Bar Association's Animal LawCommittee. Ms. Chaitoff can bereached at (631) 265-0155 [email protected].

Amy Chaitoff

Waters Floors The Crowd With The WallMUSIC REVIEW

Dennis R. Chase

Nicole V. Rotondi, L.Ac., Dipl.Ac., MS

Ms. Rotondi obtained her mas-ter's degree in acupuncture andherbal formulae in 1999. For overten years she has been working full-time alongside a variety of practi-tioners, medical doctors, chiroprac-tors, physical therapists, nutrition-ists, massage therapists and hypno-tists. Her experience has given herthe ability to relate to differenthealthcare professionals in order toprovide her patients with well-rounded healthcare.

The Healing Powerof Acupuncture

P.O. BOX 419LONG BEACH, NY 11561

Tel: 888-805-8282Fax: 516-706-1275Text: 321-480-1678

APPEARANCES IN QUEENS COUNTY

E-mail: [email protected]

Diana C. GianturcoATTORNEY AT LAW


______________________By Ilene Sherwyn Cooper

Discovery Proceedings

In In re Greenspan, the court was con-fronted by a motion and cross-motion forsummary judgment in a proceeding forthe turnover of funds in a bank accountthat the decedent maintained jointly withhis spouse, the respondent, the petition-ers’ step-mother. The petition alleged thatthe decedent deposited the funds into theaccount as a result of the respondent’sfraud, undue influence, and intimidation.The record revealed that the decedent hadParkinson’s disease during his final yearsand had consequently retired from thepractice of medicine as an oncologist. Hewas confined to a wheelchair and neededthe assistance of home health care aides.Although his mobility was limited, hemaintained contact with a close friend,who was a weekly dinner guest at hishome, and who was also the decedent’sstock broker and financial advisor.

The transfers in issue were two weeksapart, and consisted of deposits of fundswithdrawn from the decedent’s brokerageaccount into his joint account with the

respondent. Each withdrawal offunds was effected by tele-phoned instructions by thedecedent to his broker.However, the court noted thatthe first deposit of funds wasvia a deposit slip prepared bythe respondent; and that it wasnot clear who prepared the sec-ond deposit slip. It was equallyunclear who made the subjectdeposits, though there was no questionthat the decedent was too physically dis-abled to have handled these tasks on hisown. The court also noted that on the dateof the first transaction, the decedentarranged with his broker for a withdrawalof additional funds by way of separatecheck, which was deposited into his indi-vidual account. Further, the court found itrelevant that the transfers in issue signifi-cantly altered decedent’s testamentaryscheme to leave respondent a relativelyminimal portion of his estate, and hischildren the bulk of his largesse.

About five months before the transac-tions, decedent had undergone certainpsychological testing incident to a hospi-talization, which revealed that decedent

suffered from a decline in hiscognitive abilities associated withhis Parkinson’s disease.Nevertheless, the decedent’streating physician testified that inhis view the decedent did not suf-fer from either dementia orAlzheimer’s disease, and that hehad no physical condition thataffected his cognitive function-ing.

Based on the foregoing, as well as addi-tional proof in the record, the court heldthat the respondent had made a primafacie showing that the decedent voluntar-ily and knowingly transferred the funds inquestion to his joint account. On the otherhand, while the court concluded that thepetitioners’ had failed to sufficientlyplead a cause of action for fraud or to sub-mit adequate proof of duress, it found thata question of fact existed on the issue ofundue influence. Significantly, the courtopined that while typically the burden ofproving undue influence rests upon theparty asserting it, the burden shifts to theperpetrator when a confidential relation-ship between the donor and donee exists.The court recognized that while family

relationships are not per se confidential,and thus do not necessarily give rise to apresumption that transfers between fami-ly members are unfair, when, as in thecase sub judice, the record also showsthat the donor is in a weakened anddependent state, that the donee participat-ed in the transaction from which he or shebenefitted, and there is reason to questionwhether the gift was made voluntarily,summary dismissal of a claim of undueinfluence would be unwarranted.

In re Greenspan, N.Y.L.J., July 22,2010, p. 32 (Sur. Ct. New YorkCounty).

ContemptIn In re Brissett, the executrix, who

was previously held in contempt for fail-ing to file her account, moved, by order toshow cause, to extend her time to do so.The application was opposed by therespondents, co-administrators of theestate of the decedent’s post-deceasedspouse.

The record revealed that the decedentdied in 2004 survived by her spouse, whopost-deceased her. Her will was admitted

TRUSTS AND ESTATES UPDATE

Ilene S. Cooper

__________________By Leo K. Barnes Jr.

In two opinions issued on the same daythis spring, the First and SecondDepartments continued a trend of affirm-ing trial court rulings striking pleadingspursuant to CPLR 3126 once a willfulfailure to disclose is documented.Although the result is severe, both thetrial and appellate courts are universallyrefusing to perpetually provide “one morechance” to comply with unqualifiedobligations to disclose.

The CPLR 3126(3) motion to strike apleading is premised upon establishing awillful failure to disclose; obviously, amovant’s regular and documented effortsto coax compliance must found themotion. Opposition to a CPLR 3126motion is often premised upon a misun-derstanding regarding disclosure obliga-tions, arguing that violation of an order todisclose, or violation of a conditionalorder of preclusion, must serve as a pred-icate for a 3126 motion. To the contrary,the relevant and controlling authority

explicitly confirms that strikinga pleading is permissible evenwhen no prior court order isviolated. In Wolfson v. NassauCounty Medical Center,1 afteran extensive failure to respondto defendant’s first set of inter-rogatories, defendant movedpursuant to CPLR 3126.Despite the fact that the plain-tiff’s failure to respond did notviolate any prior court order, the SecondDepartment affirmed the CPLR 3126 dis-missal and denied a subsequent motionby Plaintiff to reargue and vacate:

A court may dismiss an action if theplaintiff “willfully fails to disclose infor-mation which the court finds ought to havebeen disclosed” (CPLR 3126). The sanc-tion of dismissal may be warranted evenwhere, as in the present case, the plain-tiff committed no violation of a priorcourt order (see, Goldner v. LendorStructures, 29 A.D.2d 978, 289 N.Y.S.2d687; Siegel, Practice Commentaries,McKinney's Cons. Laws of N.Y. Book 7B,

CPLR C3126:6, at 645-646).In the present case, the exten-

sive nature of the plaintiffs'delay in responding to thedefendant's interrogatoriespermits an inference that thedelay was willful. The plaintiffs'current attorneys allege absolute-ly no excuse for this delay andstate only that they were not sub-stituted for the plaintiffs' former

attorneys until after, or shortly before,the defendant made the motion pursuantto CPLR 3126. This circumstance neitherexplains nor excuses the unconscionabledelay in prosecuting this action. Thedefault can therefore be consideredwillful and no error as a matter of lawwas committed when the SupremeCourt imposed the sanction of dis-missal.

Furthermore, we find that the refusal ofthe court to exercise its discretionary powerto impose a lesser sanction (see, e.g.,Applied Elec. Corp. v. City of New York[Museum of Natural History], 101 A.D.2d

795, 476 N.Y.S.2d 323) was neither abu-sive nor improvident [emphasis added].

In that same vein, Justice Kaye, writingfor a unanimous majority in Kihl v.Pfeffeer,2 (which affirmed the dismissalof a complaint for failure to respond tointerrogatories) confirmed as follows:

If the credibility of court orders and theintegrity of our judicial system are to bemaintained, a litigant cannot ignore courtorders with impunity. Indeed, theLegislature, recognizing the need forcourts to be able to command compliancewith their disclosure directives, hasspecifically provided that a “court maymake such orders * * * as are just,”including dismissal of an action (CPLR3126). Finally, we underscore thatcompliance with a disclosure orderrequires both a timely response andone that evinces a good-faith effort toaddress the requests meaningfully[emphasis added].

Five years later, again writing for themajority, Justice Kaye ruled in Brill v.

The Ultimate Remedy for Willful Failure to DiscloseCPLR 3126(3)

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SCBA Rings In The Holidays

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SCBA Rings In The Holidays


_________________By Craig D. Robins

When it comes to post-petition taxrefunds in Chapter 13 cases, the long-standing practice in this jurisdiction fordebtors who propose to pay unsecuredcreditors less than 100% is to surrender tothe trustee all tax refunds the debtorreceives during the pendency of the bank-ruptcy case. Every experienced consumerbankruptcy practitioner who practices onLong Island is keenly aware of this“requirement.”

However, what happens when only onespouse files for Chapter 13 relief? Doesthe non-filing spouse also have to surren-der his or her tax refund to the trustee?

Recently, Chapter 13 trustee MichaelMacco of Melville said yes to this ques-tion and threatened to dismiss a confirmedChapter 13 plan filed only by the wife,unless the non-filing husband cooperatedand turned over the entire joint tax refund.The trustee argued that inherent in thedebtor's obligation to turn over all post-petition tax refunds, was an obligation bythe non-debtor spouse to do the same, sothat the debtor's creditors would thenreceive a distribution from these funds.

The husband refused to do so, went to alaw library, and then brought a pro semotion seeking a determination that hisshare of the tax refund should be protect-ed. He did this two months after writinga letter to the judge expressing frustrationover what he perceived to be an extreme-ly unreasonable request from the trustee.

In an affidavit in opposition that wasbarely longer than one page, the Chapter13 trustee argued that: a) the debtorchose to file a joint tax return; b) there isno mention in the Chapter 13 plan thatthere can be an exclusion for the non-debtor spouse's tax refund if the debtorfiles a joint return; and c) the Bankruptcy

Code requires the debtor topledge all household income topay unsecured creditors.

The husband and trustee hadoral argument before CentralIslip Bankruptcy Judge RobertE. Grossman in August, whoreserved decision. The judgedelivered an oral decision at asubsequent hearing inSeptember. Judge Grossmanthen issued a detailed written decision onNovember 4, 2010. It held that the trusteehad no basis, either at law or under theterms of the plan, to compel the husband,as a non-filing spouse, to turn over hisproperty to the trustee, or to hold the debtorin default for the husband's failure to do so.In the Matter of Susan Malewicz, no. 09-74807-reg, (Bankr. E.D. New York 2010).

Why do debtors have to turn overtax refunds?

Judge Grossman first addressed theconcept of why Chapter 13 trusteesrequire debtors to turn over their taxrefunds. Apparently, Chapter 13 trusteesclaim that if a confirmed plan does notrequire a debtor to turn over tax refunds,debtors may manipulate deductions ontheir W-2 forms which would have theeffect of reducing monthly incomepayable to creditors through the plan.

Mindful of the potential for abuse,bankruptcy courts have found thatturnover of a debtor's post-confirmationtax refunds is appropriate under the fol-lowing situations: when they are proper-ty of the estate; when they are included in"projected disposable income" whichmeans they must be committed to theChapter 13 plan; and/or when the termsof the plan provide for such turnover.

Spouse's tax refund not property of

the estateThe judge determined that

Bankruptcy Code Section541(a)(2) and 1306(a) are the rel-evant statutes that determine whatis property of the estate in aChapter 13 case. He then foundthat there is no provision in thecode that includes a non-debtorspouse’s property as being includ-ed in the debtor’s “property of the

estate.”

Projected disposable income does notinclude non-filing spouse’s income

Judge Grossman noted that other courtshave permitted Chapter 13 trustees torequire turnover of post-confirmation taxrefunds under the theory that the refundsmust be included in the calculation of thedebtor’s “disposable income.”

Bankruptcy Code Section 1325(b)requires debtors to pledge all of “thedebtor’s” projected disposable income inorder for the plan to be confirmed. Here,the judge emphasized the wording whichfocused on “debtor” and ultimately foundthat a non-filing spouse’s entire income isnot included in this analysis. “Nothing inthe Code obligates anyone other than theDebtor to fulfill the requirements of theconfirmed Plan.”

The Chapter 13 plan is bindingAlthough the plan had the typical lan-

guage that “the debtor shall pay taxrefunds to the trustee,” the judge foundthat this wording could not be interpretedto include the non-debtor spouse’s taxrefunds. The judge also remarked thateven though the husband signed an affi-davit of contribution, indicating that hewas contributing his income to the plan, itwas not binding because it was not men-tioned in the Chapter 13 plan.

I actually called the debtor’s husband toget his take on what happened, as scoring apro se victory over a Chapter 13 trustee is animpressive feat. He said that he felt veryfirmly that his position was correct and evenwent to a law library to do his homework.

As for bringing the motion, he said, “Iwas not afraid to go in and stand up forwhat was right. If I lose; I lose. I’m in noworse position than when I started.” Noone can argue with that reasoning. As I’veindicated in some past articles, just becausea trustee strongly and loudly enunciates aparticular position does not mean thetrustee is correct. Always consider pre-senting your issue to the court if youbelieve you have a solid basis for doing so.As the debtor’s spouse said, you have noth-ing to lose. Congratulations to him!

I was greatly intrigued by one particularstatement that Judge Grossman inserted in thedecision: "The parties have not raised, andthis Memorandum Decision does notaddress, whether it is appropriate for theTrustee to require the turnover of the Debtor'spost-confirmation tax refunds. This leads meto ponder if the Judge questions whetherChapter 13 debtors should uniformly committheir tax refunds to the plan. Perhaps there aresome exceptions to our local practice. Thiswould certainly be a major issue, but that is asubject for another day.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast 20 years. He has offices in Coram,Mastic, West Babylon, Patchogue,Commack, Woodbury and Valley Stream.(516) 496-0800. He can be reached [email protected]. Please visithis Bankruptcy Website: www.BankruptcyCanHelp.com and his Bankruptcy Blog:www.LongIslandBankruptcyBlog.com.

Non-Filing Spouse Keeps Tax RefundPro-se litigant scores victory against Chapter 13 trustee

CONSUMER BANKRUPTCY

Craig D. Robins

_______________By Rhoda Selvin

Jeffrey S. Horn, Pro Bono Attorney ofthe Month for January 2011, has shownhis dedication to pro bono representation,especially in matrimonial matters, formany years. Since he was honored inMay 2003 (and before that, in December1994) he has completed 112 hours of ProBono Project (PBP) service, not includinghis current open case nor his many hoursof mentoring and of recruiting matrimo-nial attorneys to pro bono work.

Mr. Horn has been a member of theSuffolk County Pro Bono ActionCommittee since its inception two yearsago and its’ Matrimonial Subcommittee.Chaired by the Honorable H. PatrickLeis, III, and Barry M. Smolowitz, thecommittee has so far focused on expand-ing pro bono services in the areas of mat-rimonial matters, guardianship, foreclo-sures, and bankruptcy. Mr. Horn’s invalu-able contribution to the committee beganwith helping to start the Suffolk CountyPro Bono Mentorship Program. Herecruited experienced matrimonial attor-

neys to serve with himself as mentors toattorneys representing matrimonialclients pro bono. Mr. Horn is justly proudof his part in the still-expanding matrimo-nial mentoring service. “If a younglawyer gets a [pro bono matrimonial]case and doesn’t know what to do with it,there’s a mentor here to help,” heexplained.

One of the first events run by the ProBono Action Committee and cosponsoredby Touro College was a clinic for SuffolkCounty indigent residents that covered itsfour initial areas of action. The clinic washeld at Touro during the American BarAssociation’s newly established ProBono Week in October 2009. Again Mr.Horn played a major role, being one oftwo matrimonial attorneys on hand dur-ing the afternoon to counsel prospectivepro bono clients on how to proceed withtheir matrimonial and family law issues.

Mr. Horn feels that pro bono matrimo-nial services are still too limited due tothe scarcity of attorneys on PBP's matri-monial panel. Noting that PBP can even-tually find attorneys to accept pressing

cases—those in which the client is thedefendant and has been served---but thewaiting list for plaintiffs is too long.Some of these prospective plaintiffs arein desperate, perhaps abusive, situationsand deserve immediate relief. “If every-one regularly did one or two cases, wewould serve the community better,” hedeclared. With a goal of having twoactive cases at a time, he added, “I do itbecause I think we should.”

A 1976 graduate of Boston University,Mr. Horn received his law degree fromthe New England School of Law in 1980and was admitted to the New York StateBar in 1981. After working for a shorttime on his own, he joined his father’slaw firm, now called Horn & Horn. Hehas long been a member of SCBA andserves on both the Matrimonial andFamily Law Committee and the JudicialScreening Committee. He is also a mem-ber of the Nassau County Bar Associationand its Matrimonial Committee. His longmembership on the board of directors ofthe Suffolk County Matrimonial BarAssociation includes a term as president.

He frequently lectures for the SuffolkAcademy of Law.

For Jeffrey S. Horn’s long, effective,and thoughtful service to SuffolkCounty’s indigent citizens the Pro BonoProject is proud to name him Pro BonoAttorney of the Month once again.

Pro Bono Attorney of the Month: Jeffrey S. HornPRO BONO

Jeffrey S. Horn


____________________By David A. Mansfield

Leandra’s Law requires any defendantsentenced to a conditional discharge, pro-bation, a split sentence of probation andincarceration, or only a term of imprison-ment on an alcohol related driving offenseunder §1192(2)(2-a) or (3) as a felony or amisdemeanor to install (at their ownexpense), a mandatory ignition interlockon any vehicle they own or operate. Themandatory ignition interlock will have animpact on your practice as a defense attor-ney.

What does the defense attorney need toknow? The ignition interlock device isinstalled in the vehicle and requires thatyour client exhale into the device to insurethat the machine does not detect more than.025 percentage weight of alcohol beforeallowing the vehicle to start.

Your client must also pull over and acti-vate the device every 15 minutes or so.Each time the device is activated, a reportwill be created that will either be transmit-ted wirelessly or downloaded at anothertime by the monitor - the Suffolk CountyDepartment of Probation. The device alsohas a timer, that will cause the vehicle‘slights to flash and dim.

There is anecdotal evidence from a col-league, Frank A. DeSousa of NassauCounty, that some clients treat this deviceas the latest option in their vehicle andinvite other people to test it out. Pleaserest assured that every action will generatea report to the monitor, which could resultin the issuance of a violation of probationor conditional discharge. Your clientshould be cautioned that this is not a toyfor lack of a better legal expression.

The cost of the device canrange from no installation fee toabout $100 and there will alsobe a $100 in monthly mainte-nance fees. These rates from theapproved providers are onlygood through February 15,2011. There is no guarantee asto what the cost will be after thatdate.

Your client upon being sen-tenced to a conditional discharge or a peri-od of probation must install the device onany vehicle they own or operate within tenbusiness days of the sentence date. Theymust also notify the Department ofProbation that the installation was withinthree business days. They will be requiredto maintain and install the ignition inter-lock device in vehicles that are owned andoperated which is to be determined by aninvestigation by the monitor or theDepartment of Probation. There is a pos-sibility that it may be required to beinstalled on multiple vehicles in a house-hold if an investigation reveals that thesentenced individual customarily operatesthese vehicles.

Your client will be required to install thedevice for a minimum of six months up tothe term of any conditional discharge isone year for misdemeanors and three yearsfor a felony conditional discharge or up tothe term of probation whether its three orfive years at the discretion of theDepartment of Probation as the monitor.

Should your client be sentenced to aterm of incarceration without probation,§1192(2) (2-a) (3) they will be required tobe sentenced to either a term of probationor conditional discharge that the ignition

interlock device be installed withten business days of release P.L.§60.21. Upon release from stateprison for a felony DWI orVehicular Assault or VehicularManslaughter, your client musthave the ignition interlock devicein any vehicle owned or operatedwithin 10 business days of releaseunder Executive Law §259-c (15-a) for the duration of post-release

sentience of probation or conditional dis-charge.

Leandra’s Law has created new Class AMisdemeanors for tampering, hindering ordisabling or substituting someone to acti-vate the device under§1198(9). There arevery strict terms and conditions of the con-ditional discharge and of the conditions ofprobation, which sets forth your client’sobligations. Your client can be chargedwith a Class A Misdemeanor for operatinga vehicle not equipped with an approvedignition interlock device under §1198(9e)when required by the sentence of the court.

Should your client be unable to afford topay, they will have to apply to the sentenc-ing judge by filling out a detailed financialquestionnaire, for a waiver or a paymentplan, which will have the effect of passingalong the cost to the rest of the defendants.Your client will be required to install thedevice on any vehicle they own or operateeven if they are prohibited by theConditions of Probation from possessingor applying for a driver’s license withoutthe permission of the court or probation.

If your client does not own or operate avehicle in their household they will berequired to give some sort of proof in theform of a letter or an affidavit to the mon-

itor, who is the Department of Probationseek an exemption from the ignition inter-lock.

There is a long-standing employer’svehicle exception §1198(8) for operationof an employer’s vehicle in the course ofemployment without an ignition interlockdevice that requires a written acknowl-edgement from the employer of awarenessof your client’s conditional license statusand conviction. This exception does notapply to any employment or businesswhere the defendant has an ownershipinterest.

The defense lawyer should incorporate areference to the installation of the manda-tory ignition interlock device in the exitletter after the client has been sentenced.

Leandra’s Law as applied to universalignition interlock went into full and effecton August 15, 2010 and this article seeksto provide some basic knowledge to betterinform your client. We will all learn moreabout intent and implementation of thislaw in the coming year.

Thank you to everyone who attended therecent DMV Update seminars inSouthampton and Hauppauge. I havereviewed your evaluations and appreciatethe positive feedback. One form containeda request for more coverage of the nuts andbolts of a DWI case. Please feel free to askany questions during the course of ourmeeting to direct the discussion to a topicof general interest in the subject matter. Ilook forward to our next meetings inNovember 2011.

Note: David Mansfield practices inIslandia and is a frequent contributor tothis publication.

Mandatory Ignition Interlock DevicesDMV

David A. Mansfield

___________________By Robert M. Harper

In Matter of Singer, the Court ofAppeals found that the “safe harbor” pro-visions set forth in S.C.P.A. § 1404 andEPTL § 3-3.5 are not exhaustive and heldthat the conduct of the decedent’s son intaking the pre-objection examination ofan individual not listed in the safe harborprovisions did not trigger the in terrorem(or so-called “no contest”) clauses con-tained in the decedent’s will. SinceSinger, there has been a flurry of newcase law addressing in terrorem clausesand the conduct that will trigger them.One of the more interesting issues is theextent to which a potential objectant in aprobate proceeding can obtain a construc-tion of a will’s in terrorem clause prior toprobate in an effort to ascertain whetherthe objectant’s intended course of con-duct will trigger an in terrorem clause andcause the objectant to forfeit a bequest.This article discusses that issue.

It is axiomatic that there can be no con-struction of a will until the instrument isadmitted to probate.1 Thus, where a partypetitions to have a will construed pendinga probate proceeding, the court “maydetermine the construction issue ‘[u]ponthe entry of a decree admitting the will toprobate’”.2

The Second Department’s decision in

Matter of Martin is instructive.In Martin, the petitioner com-menced a proceeding seekingpartial probate of those portionsof the decedent’s will, whichwere not revoked by a codicil,and construction of the in ter-rorem clause contained in thewill. After issue was joined andthe petitioner moved for sum-mary judgment on the construc-tion question, the Surrogate’s Courtgranted the petitioner’s motion, constru-ing the will’s in terrorem clause in thepetitioner’s favor. The Surrogate did sobefore the decedent’s will and codicilwere admitted to probate.

On appeal, the Second Departmentreversed. Quoting the Court of Appeals’1905 decision in Matter of Davis, theAppellate Division explained that“[p]robate logically precedes construc-tion, for otherwise there is no will to con-strue.” Thus, the Second Departmentfound that since the will and codicil werenot admitted to probate, “the Surrogatehad no authority to construe their terms.”

Equally instructive is Nassau CountySurrogate John B. Riordan’s decision inMatter of Baugher, which was decidedearlier this year. There, the respondentsin a probate proceeding -- who were chil-dren of the decedent and children of her

predeceased son -- sought (1) tostay the probate proceeding pend-ing a construction of the in ter-rorem clause in the instrumentoffered for probate, and (2) anorder granting the petitioner theright to depose the nominatedsuccessor executor of the pro-pounded instrument and the attor-ney-draftsman of an earlier willprior to filing objections.

Acknowledging the respondents’ argu-ment that the in terrorem clause containedin the decedent’s will violated public pol-icy, Judge Riordan found that the issue ofwhether an in terrorem clause is violativeof public policy is one that is properlyresolved in a construction proceeding.Given that the will had yet to be probated,the Surrogate also concluded that such aconstruction proceeding was prematureand would have to await the will’s admis-sion to probate. Accordingly, the courtdenied the respondents’ motion for a stayof the probate proceeding pending con-struction of the will’s in terrorem clause.

Despite declining to stay the probateproceeding pending resolution of the con-struction proceeding, Surrogate Riordan,relying on Singer, granted the respon-dents’ motion for an order permitting thepetitioner to depose the nominated suc-cessor executor of the instrument offered

for probate and the attorney-draftsman ofa prior will before filing objections.However, that was a hollow victory forthe respondents, as Judge Riordan furtheradvised the petitioner and respondentsthat they proceed with the requestedexaminations “at their own peril.” Therationale underlying those words of cau-tion was the fact that they might triggerthe will’s in terrorem clause by taking theexaminations, thereby forfeiting theirbequests under the will.

One of the most important lessons to belearned from Martin and Baugher is thata court cannot construe an in terroremclause contained in a will until that instru-ment is admitted to probate. To theextent that parties engage in conduct,which might be found to violate in ter-rorem clauses during subsequent con-struction proceedings, the parties do so“at their own peril.”

Note: Robert M. Harper is an associateat Farrell Fritz, P.C., concentrating intrusts and estates litigation. He alsoserves as Co-Chair of the Suffolk CountyBar Association’s Membership Servicesand Activities Committee.

1 Matter of Baugher, 29 Misc.3d 700 (Sur. Ct.,Nassau County 2010).

2 Matter of Martin, 17 A.D.3d 598 (2d Dept 2005)(quoting S.C.P.A. § 1420) (emphasis added).

Construing in Terrorem Clauses Prior to ProbateTRUSTS AND ESTATES

Robert M. Harper


Health and Hospital LawThomas J. Forceand William J. McDonald, Co- Chairs

The committee met to finalize the cur-riculum for a Medical Billing CLE, to dis-cuss development of Palliative Care CLE,and to plan mini-CLEs to improve atten-dance. Dates were selected for the MedicalBilling CLE and Palliative Care CLE. TheMedical Billing curriculum was outlinedand members were given topics.

Surrogate's CourtBrette A. Haefeli,and John J. Roe, III, Co-Chairs

There was a discussion regardingupcoming meetings for the year. Updatefrom Surrogate's Court on electronic filing.There was also a discussion on the possi-bility of CLE credits for committee meet-ings.

Insurance & Negligence - Defense CounselRobert E. Schleier, Jr., Chair

Ideas were shared regarding buildinginterest in the committee and various topicsinvolving insurance coverage were dis-

cussed. The committee agreed that it would be

beneficial to have various speakers come into discuss relevant topics. The possibilityof putting together a CLE presentation wasalso considered, but it was agreed that thereis a need to get the committee off theground first.

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

The committee met to discuss and edu-cate members regarding annuities inMedicaid Planning and the effect of theDRA 2005 on planning methods forMedicaid.

Neil Katz will speak at the next meetingregarding any change in the estate tax lawsand/or estate planning tax savings strategies.

District CourtHon. Joseph A. Santorelli,and Harry Tilis, Co-Chairs

The Committee met to discuss newissues of concern regarding practice in theDistrict Court and discussed plans to workon topics of ongoing concern.

Members of the committee will form asubgroup to explore the costs and benefits

of alternatives that would enable hearingsand trials to move forward on a more rea-sonable schedule. Those interested in con-tributing and serving should contact HarryTilis at [email protected].

The committee recognized the hard workof Bryan Cameron and Judge JosephSantorelli for their work on the October 26CLE about the nuts and bolts of arraign-ments in District Court. Ideas were brain-stormed regarding new CLE programsincluding building on the success of thearraignments program by featuring othernuts and bolts practice and ethics pro-grams. It was agreed that the committeewill be recommending a CLE program andestablishing a working group to explorecalendar issues.

SCBA Charity FoundationJoseph A. Hanshe, Managing DirectorLynn Poster-Zimmerman, Assist.Managing Director

It was decided that the meetings willrelocate to the CI Court Attorney Loungefor the convenience of the attorney partici-pants.

There is a plan to implement theChildren School Supply needs when fullboard is seated and qualified. It was sug-

gested that an E-Blast be sent to enlistmembers on the Board.

Solo & Small firm PractitionersAllison Shields, Chair

The purpose of the meeting was to dis-cuss issues and topics of concern to soloand small firm practitioners, to explore theidea of having expert speakers present atfuture meetings, and if so, to develop a listof topics and speakers, and to explore thepotential of doing a practice managementCLE program in conjunction with theAcademy of Law.

There was a lively discussion about net-working, building business and buildingrelationships. A decision was made to get aspeaker to discuss credit cards, electronicpayment options, etc. The Chair also plansto share with the group some informationfrom recent presentations from the ABAGeneral Practice, Solo and Small FirmDivision meeting and in a private webinaron cash flow.

The committee is continuing to puttogether a committee roster of contact andpractice information. Committee membersmay send this information to the Chair [email protected] if theywish to be included.

News & Notes From SCBA CommitteesCOMMITTEE CORNER

program features two luminaries in the worldof trusts and estates, Raymond Radigan andRichard Chalifoux. The program, scheduledfor lunchtime on Tuesday, January 18, isopen to all, with a special discount availableto Trust Series’ registrants.

“The State of the Estate Tax” – and ram-ifications for estate planning – will be dis-cussed in depth by a highly respected duo,David DePinto and David Ross Okrent, onthe evening of Monday, February 7. Co-Curriculum Chair Eileen Coen Cacioppo, anestates and elder law attorney, is the programcoordinator. While taxation remains a nebu-lous matter, the practicalities and ethical con-siderations affecting estate lawyers continue.This program will provide perspectives onhow to make viable estate planning decisions.

Finally, what Valentine’s Day would becomplete without an Elder Law Update bythe SCBA’s “matinee idol,” George Roach?Whatever your evening plans for Monday,February 14, be sure to save the afternoon –2:00 to 5:00 p.m. – for this insightful treat-ment of everything that is new and signifi-cant in the practice area.

Real EstateTitle reports are an essential component of

any real estate lawyer’s practice. When thereare questions about or obstructions to cleartrial, deals and contracts can fall apart. On theevening of Wednesday, January 19, a semi-nar on Dealing with a Title Company willcover, among other things. the assessment ofrisk by title companies; issues related to doc-ument preparation, mortgage payoff letters,and title clearance; and potential problemsrelated to boundaries, easements, covenantsand restrictions, and correction deeds. Thepresenters are John Cruz, Esq., counsel forFirst American Title Insurance Company,and Kenneth Zahler of Aquebogue AbstractCorporation. Past Academy Dean JohnCalcagni is the program coordinator.

Real Estate Ethics – i.e.,do’s and don’tsrelated to escrow funds as well as importantpractice pointers – will be the focus of a sem-inar scheduled for the evening of Wednesday,March 2. Gerard McCreight, an Academy

Officer and the program coordinator, isassembling a knowledgeable panel to addresspertinent issues.

Finally, as practitioners have learned alltoo well, residential real estate has acquiredan omnipresent “stepsister” – foreclosure.Plans are in place for a comprehensive springconference on “Foreclosure: Soup to Nuts”that will cover everything from identifyingforeclosure flags, through how the bank startsthe process, through changes to settlementconference mandates, through actual foreclo-sure prosecution and defenses, through newrules related to attorney fees. Past SCBAPresident Barry Smolowitz is assembling afaculty for the program that will include bankand defense attorneys, representatives of thebench, a settlement conference referee, andcourt administrators. Save Friday, May 13,for this important program.

Matrimonial & Family LawPractice

CLE programs for practitioners who han-dle divorce actions and the ancillary issuessurrounding divorce punctuate theAcademy’s Winter Syllabus.

On Monday, January 31, advice forUncontested Matrimonial Actions will bedisseminated by Frederick J. Crockett III,management analyst with the NYS SupremeCourt Matrimonial Part in Suffolk, andFamily Court Judge John Kelly at an extend-ed lunch ‘n learn program. Attendees willreceive invaluable forms and checklists aswell as practical tips for getting things rightthe first time.

On Wednesday, February 9, in the evening,a Family Court Update developed by Hon.John Kelly, Hon. Isabel Buse, and Hon. JohnRaimondi, will cover a variety of issues ofimportance to those who practice in that venue.

And, of course, Matrimonial Mondays inMarch, an Academy series in existence formore than two decades, comprises importantprograms those in the field never want tomiss. On March 7, Stephen Gassman willpresent his always well received AnnualUpdate. Then, a three-seminar series fol-lows: On March 14, the topic is Discovery

from Consult to Trial. John Bivona,Vincent Stempel, Jeffrey Horn, and CPAGlenn Liebman constitute the faculty; LindaKurtzberg is the program moderator. OnMarch 21, Custody Arrangements &Issues of Child Support will be addressedby Hon. Carol MacKenzie, Hon. AndrewCrecca, Diane Carroll and MargaretSchaefler, with Dawn Hargraves moderating.Finally, on March 28, The New No FaultLaw & Its Applications to Date will be cov-ered by Hon. Mark Cohen, Robert A., Cohenand Howard Leff, with Arthur Shulman mod-erating. All of the programs are presented inthe evening. A tuition discount is available tothose who enroll in the full series.

Labor & Employment LawThe Annual Law in the Workplace

Conference developed by the SCBA’s Laborand Employment Law Committee will be pre-sented this year on Friday, February 4, at theSCBA Center. With an emphasis on wageand hour and technology issues, the programwill include an employment law update, apublic sector labor law update, interactivepanel discussions, keynote addresses, andhands-on workshops. The who’s who facultyincludes Sima Ali, Sharon Berlin, AndyCepregi (DOAR Litigation), David M.Cohen, Brian Conneely, John Crotty, EricaGaray, Ilene Kreitzer, Troy Kessler, PaulLevitt, Philip Maier (PERB), Irv Miljoner(U.S. Dept. Of Labor), Scott MichaelMishkin, Brian Murphy, Jeffrey Naness, Hon.Emily Pines, Kathryn Russo, and MarcWenger. The program chairs are Ms. Ali andMr. Conneely. This must-attend program forlawyers, human resource directors, labor rela-tions specialists, business owners and execu-tives, and municipal leaders and employeesincludes continental breakfast, an elegant buf-fet lunch, and copious course materials.

Health & Hospital LawOn Thursday, January 13, the SCBA Health

& Hospital Law Committee will present anevening seminar on “The Anatomy of aMedical Bill.” A knowledgeable faculty willdiscuss how to read and understand hospital

bills, responsibility for bills if the patient isdeceased or has declared bankruptcy; collectionissues, issues related to the Fair Debt CollectionPractices Act, and other pertinent matters.

New Lawyer TrainingThose admitted under two years should

take note of the Academy’s 16-credit Bridgethe Gap “Weekend,” scheduled for Friday,March 11, and Saturday, March 12. Day onecomprises transactional practice, and day twofocuses on litigation. The faculty of skilledpractitioners and jurists, with StephenKunken and William Ferris serving as pro-gram chairs, provides advice on ethics andprofessionalism, bread-and-butter practiceareas, navigating the court system, and muchmore. The program fulfills a year’s worth ofMCLE requirements for the newly admitted.

East End CLEFor the convenience of East End con-

stituents, the Academy has arranged to pre-sent some of its popular programs at the FourSeasons Caterer in Southampton. On theevening of Thursday, March 3, Landlord-Tenant Trials, coordinated by Hon. StephenUkeiley, will provide litigation strategies andinsights into relevant statutory law. OnThursday, March 24, East End judges willpresent “Views from the Bench” – completewith courtroom tips, trial strategies, andoverviews of interesting cases – in a programdeveloped by Brian Doyle and AcademyDean Richard Stern. Finally, a reprise of“Evidence–What You Thought YouLearned in Law School” – the extremelywell received program presented at theSCBA Center by Hon. Mark Cohen, WilliamFerris, and Brian Doyle – will be presentedon a February evening to be announced.

More information on the Academy’sWinter 2011 programs is available throughvarious publicity mailings or by calling theAcademy at 631-234-5588. The CLE spreadin this publication provides a registrationform for early winter offerings.

Note: The writer is the executive directorof the Suffolk Academy of Law.

The New Year Brings New CLE Opportunities (Continued from page 28)


meet me. I am the attorney that herboyfriend called at 3a.m. and I agreed tomeet them here.” He looked at me as if Iwere from an alien planet and he said tome “well, maybe so, but she had a lot ofquestions and said she wanted a realSpanish attorney to help her and that theyhadn’t made up their mind yet as to who

they would use even if he had spoken toyou this morning.” “I am Spanish!” I stu-pidly replied because I was so angry thatthis poacher would have the audacity toinsinuate that I was a stupid white girl whocannot communicate in Spanish. (O.k.,maybe that’s my own insecurity, but youget the point!) He gives me a shrug and

moves away, on to talk to the next client ofsome unsuspecting attorney that hadn’tbothered to get to D11 before 9 a.m.

I tell this story not because I am lookingfor sympathy, not because I am looking forsome sort of way to get these attorneys introuble. Rather, I tell this story because Iwant to know that I am not the only onethat believes there has to be some sort ofline that is never crossed by our fellowcriminal defense practitioners. I under-stand that no formal, numbered ethics vio-lation is committed if an attorney justanswers a question asked of him or her bysomeone who is standing nearby, howeveris there not some sort of good faith that weall owe each other to at least honor anoth-er attorney’s name if it is specifically men-tioned by a potential client? I’d like tothink that we are more than just vendors ata flea market trying to outsell the competi-tion. Times may be tough but I think that’smore reason not to be a poacher.

So please, if you get a call at 3a.m. makesure you tell your potential client not onlythat you’ll be there for him or her but thatthere may be other attorneys standingaround waiting for them too. Remind themthat they are not going to a flea market andthat the hallway in front of D-11 is not asuitable place to change their mind aboutrepresentation. Also, if you want to knowhow to say all that in Spanish, or if youneed someone to cover your arraignmentfor you, call me. After all, I take anyopportunity to be in D-11 legitimately, butI’ll never be a poacher!

Note: Renee G. Pardo is a formerTarrant County, Texas and SuffolkCounty, New York Assistant DistrictAttorney. She is now in private practicewith an office in Central Islip. Ms. Pardois a criminal defense attorney who is fluentin the Spanish language, a board memberof the Suffolk County Criminal Bar

Sending a Message to the Poachers in D-11(Continued from page 3)

he was put in a position to actively helpmankind.

“Do you know how many times I heardthe expression the only good addict is adead addict?” Judge Alamia said shakinghis head. “That’s ridiculous. You get anopportunity to help another fellow humanbeing, you have to take it.”

As any practitioner who has had theopportunity to appear before JudgeAlamia knows, even if his intention is tobe helpful in the larger outcome of thelives of the defendants that appear beforehim, he can be quite intimidating, loud,tough and seemingly intolerant to thevices that have brought people in front ofhim. Nevertheless, Judge Alamia says ofhis demeanor in court, “In many ways Iam a father figure or a grandfather figureto the people that have appeared beforeme. I never hit my children, but my girlsknew when I was upset with their conductand just hearing my voice they knew whatwas expected of them and how to behave.Many of the people that appear before menever had any kind of father figure andnever had a chance.”

Judge Alamia’s accomplishments, on andoff the bench, are known in Suffolk Countyand beyond. An adjunct professor of TouroLaw School, a former Suffolk CountyAssistant District Attorney from 1972-1979and a former Chief of the Frauds Bureau,Judge Alamia did not start his career as ajudge until he became Fifth District CourtJudge (Town of Islip) in January 1993. At

that time he had already spent over 13 suc-cessful years in private practice at the LawOffice of Salvatore A. Alamia (formerlyRohl & Alamia). In 13 years he had triedabout 20 homicide cases in private practiceand felt he had accomplished everything hecould in private practice.

“Right from the beginning he was in thegame, honing his skills and becoming agreat trial attorney” says defense attorneyand former colleague from the DistrictAttorney’s Office, Eric Naiburg. “Whenhe went into private practice, he neverstopped or rested on his laurels.”

Judge Alamia was a graduate ofManhattan College (Class of 1963) wherehe studied electrical engineering. Hereceived his law degree from New YorkUniversity in 1967. Judge Alamia is alsoan avid skier, painter and world traveler.He is looking forward to doing more of allof that and spending time with his wifeSusan and their daughters.

Note: Renee G. Pardo is a formerTarrant County, Texas and Suffolk County,New York Assistant District Attorney. Sheis now in private practice with an office inCentral Islip. Ms. Pardo is a criminaldefense attorney who is fluent in theSpanish language, a board member of theSuffolk County Criminal Bar Associationand a former lecturer for HofstraUniversity's Continuing Education LegalProgram. She can be reached at (631)277-2200.

Salvatore A. Alamia Retires(Continued from page 5)

Positive Ways to Thrive During Waves ofChange.

Since that time I have had wonderfulconversations with many of you who haveread The Shark and the Goldfish, conver-sations which have often expanded intoinsightful and heartwarming dialoguesabout things that really matter and how allof us can help one another, and the book’srelevance to our membership is undeni-able. For those of you who haven’t read it,the book offers a simple fable that rein-forces a proven truth – that you can notcontrol the events in your life, but you cancontrol how you respond to them.

Since June, I have picked up and sharedother books by Jon Gordon, most notablyThe Energy Bus: 10 Rules to Fuel YourLife, Work and Team with Positive Energyand Soup: A Recipe to Nourish Your Team

and Culture. Each has its own valuablemessage and insightful simplicity as tohow it is relayed, and all have been rele-vant to my life in some way. It is basedupon the relevance of Mr. Gordon’s vari-ous messages that we are so fortunate tohave him as our guest for the MembershipAppreciation Event on February 1.

As you start the New Year, and as a giftto yourself, make plans to attend ourMembership Appreciation Event, hearwhat Mr. Gordon has to offer, apply it toyour own life and practice, and seek toenjoy the journey. And please thank U.S.Trust Bank of America and all of our othersponsors for their contribution to makingthis part of the journey available to all ofus.

Looking forward to seeing you there –Sheryl L. Randazzo.

Motivational Speaker Comes to SCBA (Continued from page 1)

(Judges Chin, the decision’s author, andHall) viewed “under the age of eighteenyears” to be ambiguous. “On one hand, itcould refer to an applicant who has not yetreached the eighteenth anniversary of hisbirth. … On the other hand, it could referto an applicant who has not yet lived in theworld for eighteen years..” Id. Duarte’sclaim would fail under the first interpreta-tion, and succeed under the second, underwhich “he had lived approximately seven-teen years, 364 days, and twelve hours.”Id. Agreeing with Duarte, and based onthe assumed facts, the court found thatDuarte had not lived for 18 years when hismother was naturalized.

In explaining its holding, the majoritycited the Supreme Court’s opinions inTown of Louisville v. Portsmouth SavingsBank, 104 U.S. 469 (1881) and Taylor v.Brown, 147 U.S. 640 (1893), to support itsview that “[t]he legal fiction that a day isindivisible is a rule of convenience that issatisfactory only as long as it does notoperate to destroy an important right.”Since application of that legal fictionwould result in Duarte’s deportation aswell as forfeiture of his right to be a UnitedStates citizen, the majority “conclude[ed]

that the circumstances of this case andprinciples of statutory construction requireus to adopt the interpretation that preservesrather than extinguishes citizenship.”Duarte-Ceri, 2010 WL 4923559*3.

Since, as mentioned above, the BIA hadnot conducted any fact-finding concerningthe hour of Duarte’s birth on June 14,1973, the Second Circuit held Duarte’spetition for review in abeyance and trans-ferred the matter to the district court for ahearing on his nationality claim.

Judge Livingston, in her dissenting opin-ion, had a far different view. “[E]ven if §1432(a) contained an ambiguity – which itdoes not – the majority ignores the principleof statutory construction that an ambiguousstatute must be construed to avoid absurdresults.” Duarte-Ceri, 2010 WL 4923559*15(internal quotation mark omitted).

Judge Livingston explained that “[i]ninterpreting a statute, we give its terms,read in their appropriate context, theirordinary, common meaning” and that as“reflected in everyday speech and writ-ing,” the ordinary, common meaning ofthe phrase “under the age of eighteen” is“before one’s eighteenth birthday.”Duarte-Ceri, 2010 WL 4923559*8.

Judge Livingston cited various statutesto demonstrate her view that a person turns18 at the first minute of his or her birthday.

In New York, for example, a personwho has turned eighteen – from the veryfirst minute of that significant birthday –can be employed serving alcoholic bever-ages, get married without his parents’ con-sent, work as a teacher in a public school,enter a nude dancing establishment, serveon a jury, operate a powerboat unaccom-panied in New York waters, be sold ‘dan-gerous fireworks,’ apply for any class ofadult drivers’ license, purchase state lot-tery tickets, and he can no longer beclaimed as a dependent child for purposesof family assistance. For purposes of fed-eral law, he can, among other things, votein an election held on his birthday.

Duarte-Ceri, 2010 WL 4923559*9(footnotes with statutory citations andquotations omitted).

Based on the “common understandingof the statutory text read as a whole,”Judge Livingston viewed that “[n]o rea-sonable reader would read the words of §1432(a) to refer to a person’s so-called‘biological’ age, when it is absolutely clearfrom context that the statute (being a

statute) refers to ‘age’ in a traditional,legal sense – the same sense in which thephrases ‘under the age,’ ‘over the age,’‘reaches the age,’ and the like are alwaysused when used in statutes.” Duarte-Ceri,2010 WL 4923559*10 (citation to majori-ty opinion omitted).

Continuing, Judge Livingston explained:No reader of a typical underage drinking

law thinks that it means that a person canbuy alcohol on their twenty-first birthdayonly after the exact minute and hour atwhich they were born twenty-one yearsbefore. Nor would a reasonable reader ofthe Constitution think that if the polls hap-pened to close before a person’s birth hourwhen an election was held on his eighteenthbirthday, that this person had no right tovote earlier in the day. And yet the majori-ty finds § 1432(a) susceptible to just suchan unreasonable reading, contrary to anyprinciple of statutory construction of whichI am aware and, indeed, to common sense.

Id. (statutory citations and quotationsomitted).

Note: Eugene D. Berman is Of Counselto DePinto, Nornes & Associates, LLP inMelville, N.Y.

They Say It’s Your Birthday (Continued from page 9)

fessions others made to the crimes forwhich the defendants stood trial. InGibian, the defense sought to introduce thedefendant’s mother’s confession to themurder. In Abdul, the Second Departmentdiscussed the issue of whether evidencethat a co-defendant had confessed could beadmitted for the truth of the matter assert-ed even though the confession could beoffered only as hearsay within hearsay.4

In Gibian, the court held the mother’sconfession should have been admittedbecause the defense offered it as evidenceof the defendant’s state of mind to explainhis awareness of details of the murder, hismotive to confess falsely and his reason forremoving evidence from the crime scene.Despite the defense’s theory which theAppellate Division said was sufficientbasis to admit the mother’s confession, theGibian court discussed, in what fairly canbe described as dicta, the fundamental rightto present a defense and to admit hearsay orother secondary forms of evidence as adirect benefit of the Constitutional right topresent a defense and have a fair trial.

Likewise, in Abdul, the Appellate

Division discussed in what fairly can bedescribed as dicta the admissibility of theco-defendant’s hearsay confession—here,a double hearsay situation. In Adbul,where the defense would have apparentlyoffered the out of court confession of theco-defendant for the truth of the matterasserted, in contrast to the state of mindrationale used in Gibian, the SecondDepartment ruled that the first level ofhearsay in the confession was admissibleas a statement against the co-defendant’spenal interest and that “indicia of trustwor-thiness exist in this case which would allowthe statement to be introduced into evi-dence for its truth.”5

Adbul, by recognizing that the co-defen-dant’s confession was admissible as a state-ment against penal interest6, found that allelements of this hearsay exception were sat-isfied. As to the second level of hearsay,though, the only requirement that theSecond Department finds necessary to con-sider is whether sufficient indicia of trust-worthiness exist to admit the statement.

To reach this seemingly minimal founda-tion for the defense to admit the totem polehearsay, the Second Department relied, inpart, on People v. Settles7 where a nonver-batim police summary of a confession wasruled admissible. In Settles, the first levelof hearsay was the confessor’s statement tothe police, and the second level of hearsaywas the summary (as opposed to transcript)of the confession. The Court of Appealsruled that the summary could have beenadmitted upon proper foundation havingbeen laid.8 Settles supports the Abdul deci-sion on state law evidentiary grounds.

Additional support, relied on in bothGibian and Abdul, comes from Chambers

v. Mississippi,9 a far broader case becauseChambers holds that a Constitutional basisexists for a defendant to admit secondaryforms of evidence like hearsay even whenthose secondary forms of evidence wouldbe excluded by the rules of evidence.

In Chambers, a confession, later repudi-ated, was made. The defendant called theconfessor as a witness, and the confessorrepudiated the confession and offered analibi that, if believed, would have shownthat the confessor did not commit the crimefor which the defendant was accused. Thestate court disallowed efforts to impeachthe confessor with the confession under thestate’s evidence code. Further, the statecourt disallowed testimony from other wit-nesses who heard the confessor make theconfession because the state did not recog-nize the statement against penal interestexception to the hearsay rule.

The United States Supreme Court heldthat “exceptions (to the hearsay rule) tai-lored to allow the introduction of evidencewhich in fact is likely to be trustworthyhave long existed.”10 In addition, inChambers, “that testimony also was criticalto Chambers’ defense. In these circum-stances, where constitutional rights (dueprocess and confrontation and calling wit-nesses in one’s own defense) directlyaffecting the ascertainment of guilt isimplicated, the hearsay rule may not beapplied mechanistically to defeat the endsof justice.”11

The Chambers fair trial rule is thedefense’s Constitutional route to admit evi-dence12 or excuse technical defenseerrors13 much the same way that Crawfordis the defense’s Constitutional route toexclude evidence otherwise admissible on

a hearsay analysis. Defense counsel shouldbe relying on both state evidentiary princi-ples and Chambers.

Note: Harry Tilis has been in privatepractice for over 20 years since he gradu-ated magna cum laude from the CornellLaw School. Originally a business lawyerwith Proskauer Rose, Mr. Tilis has contin-ued to serve business clients while expand-ing the Tilis Law Group practice toinclude all aspects of "real people" lawincluding criminal law in all SuffolkCounty's courts, real estate, family lawand wills and estates.

1 People v. Slide, 76 AD3d 1106 (2d Dep’t 2010);People v. Gibian, 76 AD3d 583 (2d Dep’t 2010);People v. Abdul, 76 AD3d 563 (2d Dep’t 2010).In addition, the Second Department reversed aplea to attempted murder in the second degreecharge, People v. Santiago, 71 AD3d 703 (2dDep’t 2010).

2 People v. Slide, 76 AD3d at --- citing People v.Grant, 7 NY3d 421 (2006) and People v.Crimmins, 36 NY2d 230 (1975).

3 People v. Gibian, 76 AD3d --- quoting People v.Crimmins, 36 NY2d 230 at 241 (1975).

4 People v. Abdul, 76 AD3d at ---.5 Id.6 People v. Brown, 26 NY2d 88 (1970).7 People v. Settles, 46 NY2d 154 (1978).8 Id. at 170.9 410 US 284 (1973).10 Id. at 302.11 Id.12 See, e.g., People v. Oxley, 64 AD3d 1078 (3d

Dep’t 2009)(trial court erred by excluding hearsaytestimony that someone else confessed to thecrime even though it is undisputed that such con-fession would not be admissible as a statementagainst penal interest because the declarant wasavailable.)

13 See, e.g., People v. Green, 70 AD3d 39 (2d Dep’t2009)(defense failure to provide alibi notice, ifrequired, does not require exclusion of alibi wit-ness when lesser sanctions were available.)


Constitutional Grounds for the Defense to Admit Evidence (Continued from page 4)

Wither Now Crawford (Continued from page 4)

Right of Confrontation under the SixthAmendment in Melendez-Diaz v.Massachusetts, 129 S Ct 2527 (2009).

In Melendez-Diaz, the Supreme Courtreversed a felony conviction for drug traf-ficking based upon a violation of thedefendant’s rights as protected under theConfrontation Clause of the SixthAmendment. At the time of trial, the pros-ecution had submitted three "certificates ofanalysis" showing the results of the foren-sic analysis performed on the seized pow-dery substance. The certificates reportedthe weight of the seized bags and stated thesubstance found was cocaine. The certifi-cates were sworn before a notary public inaccordance with Massachusetts law. TheSupreme Court held that the admission ofthese documents was in violation of thedefendant’s right to confrontation.

In affirming the conviction, theMassachusetts Supreme Court had heldthat “a drug certificate is akin to a businessrecord and the confrontation clause is notimplicated by this type of evidence.”

The holding of the Massachusetts Courtwas (quite naturally) taken up by theRespondent in Melendez-Diaz, with therespondent making the argument that thecertificates were exempt from cross exam-ination since they were business or officialrecords of the facts contained therein,Brief of Respondent, 36-45. The courtsummarily dismissed this argument, stat-ing that “the affidavits do not qualify astraditional official or business records, andeven if they did, their authors would besubject to confrontation nonetheless”,

Melendez-Diaz v. Massachusetts, 129 S Ct2527, 2538, 174 L Ed 2d 314 (2009). Thecourt continued:

Documents kept in the regular course ofbusiness may ordinarily be admitted at trialdespite their hearsay status. See Fed. RuleEvid. 803(6). But that is not the case if theregularly conducted business activity is theproduction of evidence for use at trial. Ourdecision in Palmer v. Hoffman, 318 US109 (1943), made that distinction clear.There we held that an accident report pro-vided by an employee of a railroad compa-ny did not qualify as a business recordbecause, although kept in the regularcourse of the railroad's operations, it was"calculated for use essentially in the court,not in the business." Id., at 114. The ana-lysts' certificates--like police reports gener-ated by law enforcement officials--do notqualify as business or public records forprecisely the same reason. See Rule 803(8)(defining public records as "excluding,however, in criminal cases mattersobserved by police officers and other lawenforcement personnel").

Melendez-Diaz v. Massachusetts, 129 SCt 2527, 2538, 174 L Ed 2d 314 (2009).

Following Melendez-Diaz, the AppellateTerm for the Second Department, Ninth andTenth Judicial Districts examined the Rightof Confrontation in the context of the prose-cution of driving while intoxicated cases.

In People v. Lent, 29 Misc 3d 14 (2010),the Appellate Term addressed the businessrecord exception utilized for the admissionof calibration records in driving whileintoxicated cases involving a breath testing

device and held that these records wereadmissible absent live testimony since therecords at issue were created "to fulfill[the] official mandate that the machines bemaintained in working order".

In making this pronouncement, theAppellate Term did not explain what exact-ly qualifies as an “official mandate.”Further, the court also failed to enumerateexactly from where this mandate emanatedand who is authorized to make such an offi-cial pronouncement.

Given the discussion of the SupremeCourt in Melendez-Diaz, it seems clear thatan “official mandate” must be fundamen-tally distinct from a business record.However, the Spartan record on this issuein the Appellate Term raises more ques-tions than it answers.

It now appears incumbent upon theprosecution to present evidence of an offi-cial mandate from a police or governmen-tal agency as to the procedures underlyingthe calibration records. However, even thisis potentially problematic for the prosecu-tion of driving while intoxicated casesgiven the probable reasoning for any man-date.

In People v. Todd, 38 NY 2d 755, 756,381 NYS 2d 50 (1975), the Court ofAppeals reversed a driving while intoxi-cated conviction holding that “[t]he Peoplefailed to establish that the breathalyzerapparatus had been timely calibrated;hence, the results of the breath test wereinadmissible.” In that case the machinehad not been calibrated in seven months.

The “official mandate” referred to in the

Lent decision appears to be little more thana rule of evidentiary admissibility createdby the courts. This runs afoul of theMelendez-Diaz decision. The only purposefor the creation of this record, for the “offi-cial mandate” referred to in the Lent deci-sion is “for the purpose of establishing orproving some fact at trial”, Melendez-Diazv. Massachusetts, 129 S Ct 2527, 2539-40,174 L Ed 2d 314 (2009).

Without further clarification from theAppellate Term as to the nature of this“official mandate”, the trial courts are leftwith no guidance to determine whether akey piece of prosecution evidence isadmissible. Fortunately further clarifica-tion on this issue may be forthcoming.

The United States Supreme Court hasgranted certiorari in a driving while intox-icated conviction involving the issue of theadmission of certificates without live testi-mony. In Bullcoming v. New Mexico, 147NM 487, 226 P 3d 1 (2010), the NewMexico Supreme Court upheld a drivingwhile intoxicated conviction where thetrial court had admitted, over objection,the certificate of analysis from a blood testwithout live testimony from the individualwho performed the testing. It seems fairlysafe to say that the Supreme Court will set-tle the issue, however, how they will settleremains unknown, and until then, all pros-ecutions involving a reading in a drivingwhile intoxicated case will be unsettled.

Note: Scott Lockwood is a solo practi-tioner in Deer Park New York and can bereached at (631) 242-3369.

In the last paragraph of last month’sarticle, The Suffolk CountyCourthouse Through The Centuries,the founding date for Riverhead andthe first County Courthouse wasincorrect. Riverhead was founded in1683 and the first County Courthousewas built in 1728. The Suffolk Lawyerregrets the error.

Correction


Bench Briefs (Continued from page 5)

CPLR 3126(3) -- The Ultimate Remedy for Willful Failure to Disclose (Continued from page 11)

In Robert McGahy v. Director of ChildSupport Enforcement Bureau, Index No.:49381/09, decided on March 8, 2010, thecourt denied plaintiff’s motion for an orderpursuant to CPLR §211(b) vacating ajudgment entered against the movant onMay 4, 1979. In denying the motion, thecourt noted that the movant had not com-menced an action to vacate the offendingjudgment by the filing of a summons andcomplaint. As such, there was no actionpending and the court did not have juris-diction to render the relief sought.

Motion for an order adjudging defen-dant/debtors in contempt for failure tocomply with subpoenas/subpoenas ducestecum granted; motion was served morethan 30 days prior to the return date but thedefect was deemed waived.

In Peter Makris v. Port Richey MobileHome Park, Inc., a Florida Corporation,Harold E. Fisher, Dennis Costigan a/k/aDennis Costagan, Christopher L.Amandola and William Mortgage Corp., aFlorida Corporation, Index No.: 23375/09,decided on June 7, 2010, the court grantedthe unopposed motion of plaintiff/judg-ment creditor for an order adjudging defen-dant/debtors in contempt for failure tocomply with subpoenas/subpoenas ducestecum previously served. Although themotion was served more than 30 days priorto the return date in violation of JudiciaryLaw §756, defendants did not oppose themotion. Accordingly, the defect, whichwas not jurisdictional, was deemed waived.

Honorable Peter H. Mayer

Motion to dismiss granted; attempts toserve the respondents at their residence didnot satisfy the “due diligence” require-ments for “nail and mail” service

In In the Matter of the Application ofJerome Feder, Erica Fried and AndreaResnick v. Town of Islip Zoning Board ofAppeals, Richard I. Scheyer, Chairman;Albert R. Morrison, Vice Chairman; andKurt Pahlitzsch, Barbara O’Connor andJames H. Bowers, Members; and BarryWetherall and Harriet Wetherall, IndexNo.: 37362/08, decided on April 28, 2010,the court granted respondents Wetheralls’motion to dismiss the petition on the basisthat personal jurisdiction had not beenacquired over them; petitioners havingattempted to serve them via CPLR

§308[4]. The court pointed out thataccording to the affidavit of service, theprocess server attempted to serve respon-dents at their dwelling on ThursdayOctober 9, 2008 at 7:12 p.m.; on Friday,October 10, 2008 at 9:30 a.m.; and onOctober 11, 2008 at 1:46 p.m. on theSaturday of the Columbus Day holidayweekend. When on Monday, October 13,2008, the observance date of ColumbusDay, 2008, the process server tried again,she was unsuccessful at 7:19 a.m. Theprocess server then affixed the copy of thenotice of petition and petition to the frontdoor of the premises and thereafter maileda copy to their residence. In granting themotion to dismiss, the court reasoned thatthe process server’s first two attemptswere made on weekdays at times when therespondents could reasonably be expectedto be at work or in transit from work. Thethird attempt and fourth attempt weremade during the holiday weekend, times atwhich the process server should haveanticipated the respondents might be awayfrom home. As such the court concludedthat these attempts to serve the respon-dents at their residence did not satisfy the“due diligence” requirements for “nail andmail” service.

Honorable Thomas F. Whelan

Motion for an order of attachment;plaintiff failed to establish any entitlementto the attachment.

In James R. Duffy, Sr. v. LorettaMcLean, Michael McLean, ArleneGraham and Vincenza Staron a/k/a JeanStaron, Index No.: 24444/10, decided onAugust 3, 2010, the court denied plain-tiff’s motion for an order of attachment.The court noted that this was an action torecover rents purportedly due from thedefendants under the terms of an allegedlyoral, month to month, lease of certain res-idential premises and/or guarantees of theobligors under the lease. By the instantmotion plaintiff sought to attach the bankaccounts of defendant Vincenza Starona/k/a Jean Staron. Defendants opposed themotion on several grounds, including thatdefendant, Vincenza Staron was adjudicat-ed to be an incapacitated person by theSupreme Court of Queens County in 2006and that all funds owned by her were sub-ject to Article 81 Guardianship Accountsunder the control of her co-guardians. The

defendants further contended that plaintiffwas not the owner of the premises at issueand was not the owner at the time the mak-ing of purported lease. In denying themotion the court found that plaintiff failedto establish any entitlement to the attach-ment demanded. There had been no show-ing that plaintiff had any likelihood of suc-cess on the merits. The court further point-ed out that plaintiff’s attempt to sue theincapacitated defendant directly for breachof a lease she allegedly entered into sometwo years after her adjudication of inca-pacity was not likely to result in a moneyjudgment in favor of the plaintiff. Thosequestions coupled with the cloud overplaintiff’s title to the subject premises,suggested that plaintiff would not be suc-cessful on his underlying pleaded claims.As such the motion was denied.

Motion to quash subpoenas granted;subpoenas were facially invalid and unen-forceable for want of compliance withCPLR §3104(a)(4); subpoenas were over-broad and lacked the specificity imposedby CPLR §3120.

In Salvatore Magluarnera and CatherineSolce-Castellano, individually and deriva-tively on behalf of and in the right of BurrManor Estates, Inc. and Jefferson WoodsEstates, Inc. v. Joseph Salomon, JeffreyFeldman, Barry Feldman, Feldman &Company, Burr Manor Estates, Inc. andJefferson Woods Estates, Inc., Index No.:10783/08, decided on June 26, 2009, thecourt granted motion by the plaintiffs/coun-terclaim defendants, for an order quashingten of eleven non-party subpoenas servedby the defendants with respect to theirasserted counterclaims. In denying themotion, the court noted that the use of sub-poena duces tecum by a party seeking thedisclosure of documents from a non-partywas liberalized in September 2003 howev-

er, a party must still give notice of the “cir-cumstances or reasons” why such disclo-sure is sought. The court further pointed outthat the Second Judicial Department hasindicated that the “circumstances or rea-sons” that a party seeking discovery isrequired to set forth in a subpoena or dis-closure notice directed to a non-party, mustraise to the level of “special circum-stances.” Special circumstances are estab-lished by a showing that it cannot beobtained from other sources. In addition,the notice of subpoena duces tecum shallamong other things describe each item orcategory of items demanded with reason-able particularity. Failure to note the needfor the disclosure on the face of the subpoe-na or disclosure renders the subpoenafacially invalid and unenforceable. Here,the court found that the subpoenas werefacially invalid and unenforceable for wantof compliance with CPLR §3104(a)(4).Additionally, the subpoenas were over-broad and lacked the specificity imposed byCPLR §3120.

Please send future decisions to appear in“Decisions of Interest” column to ElaineM. Colavito at [email protected] is no guarantee that decisionsreceived will be published. Submissionsare limited to decisions from SuffolkCounty trial courts. To be considered forinclusion in the February 2011 issue, sub-mission must be received on or beforeJanuary 1, 2011. Submissions are acceptedon a continual basis.

Note: Elaine Colavito is an Associate atHeidell Pittoni Murphy & Bach, LLP con-centrating in litigation defense. She grad-uated from Touro Law Center in 2007 inthe top 6% of her class. She can be con-tacted at (516) 408-1600.

City of New York3 that statutory deadlines,like court orders, cannot be ignored with-out significant consequences.

The Spring 2010 DirectivesThe First Department’s decision in Fish

& Richardson P.C. v. Schindler4 rejectedthe “one more chance” argument as a basisfor an abuse of discretion reversal.

Defendant argues that it was an abuse ofdiscretion for the court to strike the answerin the absence of a conditional order or aspecific warning by the court that he facedimminent dismissal. Defendant points tono authority holding that a court mustissue such a “last chance” warning ororder in all cases before exercising itsdiscretion to strike a pleading. CPLR3126 permits the court to “make such

orders ... as are just,” and it may, in anappropriate case, determine that the pat-tern of noncompliance is so significantthat a severe sanction is appropriate. Sucha determination should not be set asideabsent a clear abuse of discretion (seeArts4All, 54 A.D.3d at 286, 863 N.Y.S.2d193) [emphasis added].

The Second Department’s opinion inXiao Yang Chen v. Fischer5 was alsopremised upon a CPLR 3126 motion afterplaintiff’s spoliation of evidence violatedseveral orders to disclose (ruling that theSupreme Court improvidently exercisedits discretion in denying that branch of thedefendant's motion which was to dismisscertain other personal injury causes ofaction after the plaintiff willfully defieddiscovery orders by deleting from her

computer's hard drive materials that shehad been directed to produce).

Compilation Should Start atEngagement

It is good practice to ready the client fordisclosure obligations at the time thatcounsel is engaged by the party for repre-sentation. An overview of the anticipateddiscovery proceedings (documented in afollow up letter) will avoid unnecessarydelays. Explain to the client that inasmuchas certain deadlines for production will beimposed by the court, counsel mustimpose ancillary obligations upon theclient so that production obligations areachieved on a timely and proactive basis.After the Supreme Court struck the defen-dant’s answer in Fish & Richardson the

client attempted to turn the table on hisformer counsel by blaming the formercounsel for the disclosure failure. To hiscredit, former counsel successfully avoid-ed criticism for failure to disclose becausecounsel documented his effort to encour-age the client to comply with the disclo-sure obligations.

Note: Leo K. Barnes Jr. is a member ofBARNES & BARNES, P.C. in Melville and canbe reached at [email protected]

1 141 A.D.2d 815, 530 N.Y.S.2d 27 (2nd Dep’t1988).

2 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999).3 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004).4 75 A.D.3d 219, 901 N.Y.S.2d 598 (1st Dep’t

2010).5 73 A.D.3d 219, 901 N.Y.S.2d 598 (2nd Dep’t

2010).

intern, with research, drafting memorandaand motions. Reference Att. #15.

Attorney, fully experienced in all phas-es of personal injury, no-fault and SUMlitigation, seeks full-time position.Reference Att #21.

Attorney admitted more than 15 years,with experience in residential lending,

mortgages and real estate transactions,seeking full-time employment. For furtherinformation and resume contact Tina atthe SCBA: 631-234-5511, ext. 222, refer-ence Att. #2.

Keep on the alert for additionalcareer opportunity listings on theSCBA Website and each month in TheSuffolk Lawyer.

Among Us (Continued from page 6)


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

The Suffolk Academy of Law, the educational arm of the Suffolk CountyBar Association, provides a comprehensive curriculum of continuing legaleducation courses. Listings include January seminars, Winter(January–March) updates and conferences, and ongoing series. Watchfor additional program details or announcements.

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

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

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

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

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

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

Americans with Disabilities Act: If you plan to attend a program andneed assistance related to a disability provided for under the ADA,,please let us know.

Disclaimer: Speakers and topics are subject to change without notice.The Suffolk Academy of Law is not liable for errors or omissions in thispublicity information.

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

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

INQUIRIES: 631-234-5588.

WINTER CLE

UPDATESVideo Replay

ANNUAL CRIMINAL LAW UPDATETuesday, January 18, 2011

Presenters: Hon. Mark Cohen (NYS Court of Claims; ActingJustice, NYS Supreme Court) and Kent Mostin(Appeals Bureau, Nassau Legal Aid)Moderator: William T. Ferris, Esq. (Bracken, Margolin & Besunder)Time: 4:00 – 7:00 p.m. (Sign-in from 3:45 p.m.) Location: SCBA Center Refreshments: SnacksMCLE: 3 Hours (professional practice) [Non-Transitional]

FAMILY COURT UPDATEWednesday, February 9, 2011 (Live & Webcast)

Developed by: Hon. John Kelly; Hon. Isabel Buse; Hon. John Raimondi (Suffolk County Family Court)Time: 6:00 – 9:00 p.m. (Sign-in from 5:30 p.m.) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

ELDER LAW UPDATEMonday, February 14, 2011 (Live & Webcast)

Presenter:George L. Roach (Grabie & Grabie, LLC)Time: 2:00 – 5:00 p.m. (Sign-in from 1:30 p.m.)Location: SCBA Center Refreshments: Valentine’s DaySnacks MCLE: 3 Hours (2.5 professional practice; 0.5 ethics)[Non-Transitional and Transitional]

MATRIMONIAL LAW UPDATEMonday, March 7, 2011

Presenter:Stephen GassmanTime: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

CONFERENCEPresented by the SCBA Labor & Employment Law Committee

LAW IN THE WORKPLACEFriday, February 4, 2011

This full-day conference will explore timely legal issues affectingthe workplace, including wage and hour and technology. Theprogram, featuring an outstanding faculty, includes panel dis-cussions, key note addresses, breakout workshops, andupdates on public sector labor law and employment law. Theprogram is intended for lawyers, human resource directors,labor relations specialists, business executives, and municipalleaders and employees.Faculty: Simi Ali; Sharon Berlin, Andy Cepregi (DOARLitigation); David M Coen; Brian Conneely; John Crotty;Erica Garay; Ilene Kreitzer; Troy Kessler; Paul Levitt; PhilipMaier (Eastern Regional PERB); Irv Miljoner (U.S. Dept. ofLabor); Scott Michael Mishkin; Brian Murphy; JeffreyNaness; Hon. Emily Pines; Kathryn Russo; and MarcWengerChairs: Simi Ali and Brian ConneelyTime: 9:00 a.m. – 4:00 p.m. (Sign-in from 8:30 a.m.) Location: SCBA Center Refreshments: Continental Breakfast & Lunch BuffetMCLE: 6 Hours (professional practice) [Non-Transitional and Transitional]

SERIESTRUSTS A TO Z

One lunchtime program each month through May (Live & Webcast)Past sessions are available as on-line video replays and mayalso be purchased as DVDs or audio CDs.

Each Program:Time: 12:30–2:15 p.m. (Sign-in from noon.) Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice) [Non-Transitional and Transitional]

Series Coordinator: Ralph Randazzo (Randazzo & Randazzo, LLP – Huntington)

IRREVOCABLE LIFE INSURANCE TRUSTS

Wednesday, February 2, 2011Presenter: Richard A. Weinblatt

(Haley Weinblatt & Calcagni, LLP – Islandia)

GRANTOR RETAINED ANNUITYTRUSTS (GRATS)

Tuesday, March 1, 2011Presenter: Paul E. Dorr, Jr.

(Bernstein Global Wealth Management)

DYNASTY TRUSTS Tuesday, April 5, 2011Presenter: Paul McGloin

(Deutsche Bank Private Wealth Management)

CHARITABLE TRUSTS Wednesday, May 4, 2011

Presenter: Paul E. Dorr, Jr. (Bernstein Global Wealth Management)

LIFETIME TRUSTS FOR MINORS Tuesday, June 7, 2011 (postponed from Jan. 11)

Presenter: Ralph Randazzo (Randazzo & Randazzo, LLP – Huntington)

SEMINARSE-DISCOVERY

Wednesday, January 12, 2011 (Live & Webcast)This program responds to last summer’s ruling by ChiefJudge Jonathan Lippman altering the Uniform Rules of TrialCourts. The new rules require that attorneys be “sufficientlyversed in matters relating to their clients’ technology systemsto discuss competently all issues relating to electronic dis-covery” at preliminary conferences. This program, taught bya knowledgeable faculty, will teach you to build an EDD(electronic data discovery) process that is defendable incourt incorporate EDD into your overall litigation strategyavoid possible sanctions resulting from lack of technologicalexpertisePresenters: Hon. Emily Pines (NYS Supreme Court–Suffolk);Maura Grossman, Esq. (Wachtell, Lipton, Rosen &Katz–NYC); Yalkin Demirkaya and Sal Llanera (CyberDiligence, Inc.)Coordinators: Hon. James Flanagan; Cheryl Mintz, Esq.; Allison Shields, Esq.Time: 6:00– 9:00 p.m. (Sign-in from 5:30 p.m.) Location: SCBA Center Refreshments: Light supper

MCLE: 3 Hours (professional practice OR skills)[Non-Transitional and Transitional]

Presented by the SCBA Health & Hospital Law Committee

THE ANATOMY OF A MEDICAL BILLThursday, January 13, 2011 (Live & Webcast)

Topics for this exploration of medical billing and related mattersinclude:Reading and understanding medical billsResponsibility for medical bills (e.g., if patient is deceased orhas declared bankruptcy)Collection issuesIssues Related to the Fair Debt Collections Practices ActPresenters: Members of the SCBA Health & Hospital Law CommitteeTime: 6:00– 9:00 p.m. (Sign-in from 5:03 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

FIDUCIARY SELECTION, FIDUCIARYLIABILITY & PRUDENT INVESTOR ACT

Tuesday, January 18, 2011 – Lunch ‘n Learn (Live & Webcast)

Selecting or acting as a fiduciary is a significant responsibility.This seminar, featuring an extremely knowledgeable faculty, willaddress fiduciary duties, criteria for appointments, methods forassessing the viability of investments, ethical obligations, andmuch, much more. It is a must-attend for anyone involved withthe oversight of other people’s money!Note: Those enrolled in the Trusts Series may attend this pro-gram at a discounted tuition rate.Faculty: Raymond Radigan, Esq. and Richard Chalifoux,Esq. – U.S. Trust/Bank of AmericaCoordinator: Ralph Randazzo (Randazzo & Randazzo, LLP – Huntington)Time: 12:30–2:30 p.m. (Sign-in from noon) Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice) [Non-Transitional and Transitional]

DEALING WITH A TITLE COMPANYWednesday, January 19, 2011 (Live & Webcast)

Clearing title is one of the most important components of a realestate transactions. This program will cover, among otherthings. the assessment of risk by a title company issues relatedto document preparation, mortgage payoff letters, and titleclearance potential problems related to boundaries, easements,covenants and restrictions, and correction deedsFaculty: John Cruz, Esq. (Counsel, First American TitleInsurance Company); Kenneth Azhler (Aquebogue AbstractCorporation)Moderator: John R. Calcagni, Esq. (Haley, Weinblatt &Calcagni, LLP // Past Dean–Suffolk Academy of Law)Time: 6:00– 9:00 p.m. (Sign-in from 5:03 p.m.) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

THE TOP TEN DO’S & DON’TS IN CONSUMER BANKRUPTCY CASESThursday, January 20, 2011 – Lunch ‘n Learn

(Live & Webcast)The Honorable Alan S. Trust, Judge of the U.S. BankruptcyCourt, EDNY, spearheads this program. An interactiveexchange – among members of the bar, paralegals, Judge Trustand other presenters – will shed light on procedural and practi-cal issues affecting those who practice before the BankruptcyCourt. The program is highly recommended for new lawyers,paralegals, and those who are new to bankruptcy practice.

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

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


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

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

Faculty: Hon. Alan S. Trust (U.S. Bankruptcy Court–EDNY);Richard L. Stern (Macco & Stern, LLP); Others TBACoordinator: Richard L. Stern (Academy Dean)Time: 12:30–2:30 p.m. (Sign-in from noon) Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice) [Non-Transitional andTransitional]

UNCONTESTED MATRIMONIAL ACTIONSMonday, January 31, 2011 – Lunch ‘n Learn

(Live & Webcast)Gain practical how-to guidance at this succinct lunchtime pro-gram. The management analysist for the Matrimonial Part of theNYS Supreme Court, Suffolk County, will explain the nuancesthat can make the difference between having your papers reject-ed and having them accepted the first time around. Helpful

checklists and useful forms will be distributed.Faculty: Frederick J. Crockett III (NYS Supreme Court(Suffolk) Management Analyst, Matrimonial Part); Hon. John Kelly (Family Court)Time: 12:30–2:45 p.m. (Sign-in from noon) Location: SCBA Center Refreshments: LunchMCLE: 2.5 Hours (professional practice) [Non-Transitional and Transitional]


Discovery Proceedings (Continued from page 11)

Time to React (Continued from page 9)

cannot process all of the trash it produces;this results in over 78,000 tons of SuffolkCounty’s trash being long-hauled out ofstate per year), approximately 300 tons perday, requiring on average 65 transporta-tion trucks per day6. Not only does thisincrease taxpayer expenses for exportationof garbage, but it also increases air pollu-tion, providing supporting evidence for theAmerican Lung Association’s finding thatSuffolk County’s air quality is “360 timesabove recommended levels for diesel sootemission,” says Vernon Rail.7 It does notseem like a leap to assume a connectionbetween the overwhelming pollution andthe sky high cancer rates in New York(over 100,000 New Yorkers diagnosedwith cancer each year)8. The “UnitedStates Environmental Protection Agency(EPA) estimates that shifting 10 percent oflong-haul freight from highway to rail[transportation for out of state exportationof waste] would decrease annual green-house gas emissions by more than 12 mil-lion tons.9”

So what is the answer? Continue to con-sume all we want, produce as much wasteas we want, and disregard all signs point-ing to environmental destruction? No!Although there must be change on a largerscale, until that happens, we must each doour part by taking steps to decrease theamount of waste we generate – whetherthat means using reusable, eco-friendlyshopping bags, reusable water containers,composting, etc., it must be done.

Fortunately, Suffolk County has madeseveral initiatives toward decreasing wastegeneration, including Waste Reductionand the Pay Per Bag System. The SolidWaste Management Act of 1988, whichpushed the “Waste Reduction” initiativeby means of disseminating of informationand efforts to educate the population aboutthe effects of pollution and failure to recy-cle and reduce waste, proved to be some-

what effective, decreasing per capita wastegeneration in Suffolk County by 3.1%from 1990-200610; this however is notnearly enough. The Pay-Per-Bag Systemhas been adopted by the Town of ShelterIsland, Town of Southampton, and Townof Southold11. This initiative assigns thecost of waste management directly to theindividual generating the waste as opposedto funding waste management coststhrough property taxes. For example, inthe Town of Southold, its largest disposalbag, which is 48 gallons, capable of hold-ing up to 75lbs costs $2.25 to dispose of.Although this system may seem appropri-ate for only smaller communities, it incen-tivizes waste reduction on an individuallevel (which is the goal).

Suffolk County should not stop here, itmust continue to find alternative ways toreduce waste in order to reduce costs to itsconstituents as well as decrease theirhealth risks. Long Islanders pay some ofthe highest property taxes in the UnitedStates; it seems unfair that those paying somuch are exposed to such detrimentalenvironmental health conditions. The timeto be proactive is long past, we must nowbe reactive.

Note: Sarah Valente is a third year parttime evening student at Touro Law Centerwith an undergraduate degree in elemen-tary education from St. John’s University.She is currently the secretary of theEnvironmental Law Society and hopes topursue a career in education law. Ms.Valente can be reached at [email protected].

1 Suffolk County, Division of Recycling and SolidWaste Management, Suffolk County Solid WasteManagement Report and Recommendations(Hauppauge: Suffolk County Department ofEnvironment and Energy, 2009) 96.

2 Vernon Rail, Presentation for Touro’sEnvironmental Law Society at Touro Law Center,28 Oct. 2010.

3 Rail, 28 Oct. 2010.4 New York Department of Environmental

Conservation, “Long Island Landfills,” 20 Nov.2010 <http://www.dec.ny.gov/chemical/23698.html>.

5City-data.com, “Suffolk County, New YorkDetailed Profile,” 19 Nov. 2010 <http://www.city-data.com/county/Suffolk_ County-NY.html>.

6 Suffolk County, Division of Recycling and SolidWaste Management, 96.

7 Rail, 28 Oct. 2010.

8 New York, New York State Department of Health,“New York State Cancer Registry,” 20 Nov. 2010<http://www.health.state.ny.us/statistics/cancer/registry/>.




2006 Suffolk County Solid Waste Generation

* This weight is calculated per person per day in a five day week** 2006 solid waste management data unavailable

(most recent available data is from 2003)*** Brookhaven is Long Island’s largest town by area**** 2006 Solid waste management data unavailable

(most recent available data is from 2004)***** 2006 solid waste management data unavailable

(most recent available data is from 2003)

Source: 2009 Suffolk County Solid Waste Management Report andRecommendations http://legis.suffolkcountyny.gov/clerk/cmeet/rswc/SC%20

Solid%20Waste%20Report%202009.pdf

Town Population(Approximate)

Waste Per PersonPer Day (in lbs)*

Total Waste PerYear (in tons)

Total WasteRecycled Per Year

Babylon** 217, 061

Brookhaven*** 485,295 3.81lbs pp/pd 337,285 31%

East Hampton**** 21,399

Huntington 202,767 5.67 lbs/pp/pd 209,829 33.3%

Islip 332,484 5.71 lbs/pp/pd 346,453 40%

Riverhead 33,098 3.61 lbs/pp/pd 21,781 13.6%

Shelter Island 2,483 4.22 lbs/pp/pd 1,911 44%

Smithtown***** 119,605

Southampton 58,876 1.13 lbs/pp/pd 12,176 45.6%

Southold 30,000 4.89 lbs/pp/pd 20,186 56.4%

to probate several years after her death,and letters testamentary issued to herniece, as the named fiduciary thereunder.

Following the issuance of letters testa-mentary, the fiduciaries of the estate ofthe post-deceased spouse petitioned for acompulsory accounting, which applica-tion was granted. The executrix wasordered to account within 30 days of ser-vice upon her of a certified copy of thecourt’s order. When no account wasfiled, the fiduciaries moved to hold theexecutrix in contempt, which applicationwas granted upon the default of theexecutrix, and the court authorized theissuance of a warrant of commitmentwithout further notice in the event theexecutrix failed to purge herself of thecontempt within thirty days of serviceupon her of the court’s order with noticeof entry.

Thereafter, a warrant of commitmentissued and the executrix was broughtbefore the court by the Sheriff of the Cityof New York. At that time, counsel for theexecutrix stated that the their client’s fail-ure to account was attributable to their lawoffice failure rather than her willful disre-gard of the court’s order, Based on coun-sel’s representations, the court temporarilyvacated the order of commitment, provid-ed that in the event the executrix failed toaccount by a date certain, the warrant

would once again issue. A warrant of com-mitment was again issued as a result of theexecutrix’s failure to account, and yetanother stay was granted until a date cer-tain.

However, in lieu of filing her account,the executrix moved by order to showcause for an extension of time to file heraccount and for another stay of the warrantof commitment pending the outcome ofthe application. The court declined to grantthe temporary relief.

In opposition to the relief requested bythe executrix, the respondents maintainedthat she transferred to herself all estateassets, contrary to the provisions of thedecedent’s will, and requested that thecourt, inter alia, issue an order revokingthe letters testamentary of the executrix,appointing one of them as the fiduciary ofthe estate, and imposing sanctions.

The court opined that although a war-rant of commitment remained extant, theremedies afforded by the provisions ofSCPA §2205 were likely to prove morefruitful than the imprisonment of theexecutrix for failure to comply with thecourt’s directives. Accordingly, the courtdenied the request by the executrix foranother extension of time to account,suspended the letters testamentary issuedto her, directed that a hearing be held onthe issue of whether the executrix’s let-

ters testamentary should be revoked andone of the respondents be appointed inher place and stead, and ordered that onthe hearing date the parties be preparedto discuss a turnover of the books andrecords of the estate, and whether a trialdate should be fixed for the successorfiduciary to take and state the account ofthe suspended executrix.

In re Brissett, N.Y.L.J., July 26,2010, at 26 (Sur. Ct. Bronx County)

Attorney MalpracticeIn an action brought by the plaintiff,

individually, against her attorneys for,inter alia, breach of fiduciary duty, thecourt dismissed the complaint pursuant toCPLR 3211(a)(1) and (7) on the groundsfinding that the scope of counsel’semployment was limited to representingplaintiff in her fiduciary capacity, ratherthan her individual capacity. The recordrevealed that the defendants had beenretained to represent the plaintiff as co-executor of her late father’s estate. Theplaintiff was the subject of a pending suitto recover monies due on notes that sheexecuted before her father died. The plain-tiff alleged that the defendants had failedto inform her about the circumstances sur-rounding the execution of those notes andhad failed to question their validity. Thedefendants submitted a copy of their

retainer with the plaintiff which reflectedthat she understood and accepted its termsbefore engaging counsel to represent her,and the limited nature of counsel’s repre-sentation; i.e. as co-executor of herdeceased father’s estate.

Based on the foregoing, the SupremeCourt dismissed the complaint, and theAppellate Division affirmed, holding thatthe language of the retainer agreementconclusively established a defense toplaintiff’s claims of malpractice.Specifically, the court concluded thatplaintiff’s individual liability on thenotes was outside the scope of defen-dants’ representation of the plaintiff inher capacity as co-executor of the estate.The court also found that the complaintfailed to establish that the plaintiff’salleged damages were proximatelycaused by any acts or omissions of thedefendants.

Hallman v. Kantor, 72 A.D.3d 895,901 N.Y.S.2d 284 (2d Dept. 2010).

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


tlement procedure. These conferences arenow a required predicate before any resi-dential foreclosure matter can proceed toan IAS Judge for possible litigation or theissuance of an Order of Reference.

Our project is unlike any other in theState of New York. While some foreclo-sure programs give homeowners generaladvice on how to apply for a mortgagemodification or other related legal infor-mation, our project invites EVERY home-owner that is subject to a residential fore-closure filing to contact us and receive aFREE one-on-one legal consultation. Inaddition, if after the consultation it appearsthat the homeowner is in need of futurelegal representation at the settlement con-ference level, they will be provided a pro-bono lawyer at each settlement conferencethat the homeowner attends. The home-owner need only request the representa-tion. Unlike some of the other programs,our project does not have any strict finan-cial guidelines. The volunteer attorneyreviews the client’s case file at each meet-ing, and determines on a case-by-casebasis if continuing pro-bono representationis warranted.

By way of comparison, prior to the eco-nomic crisis, the average number of fore-closure filings per year in Suffolk wereabout 1,500. Since 2008 that number hasincreased to approximately 18,000 filingsper year.

Since the programs inception, we havehelped over 1,800 homeowners. The set-tlement conference process has been suc-cessful in about 33 percent of the cases (asuccessful outcome is deemed to include asuccessful mortgage modification or anyother disposition that allows the matter tobe settled prior to going into an IAS part).Between May 2010 and November 2010

the project has opened 620 new cases, andhas covered 422 court settlement confer-ence calendars.

Becoming a volunteer in this project iseasy and has additional benefits.

You will meet other attorneys and be apart of an ongoing dialogue regardingforeclosures. This project will begin toprepare to undertake and fully litigate aforeclosure matter (as of December 20,2010 attorney fees can now be awarded toa successful homeowner litigant).

In addition to the satisfaction of helpingyour many neighbors, you will also earn 5CLE credits upon completion of the freetraining program and completing at leastfour appearances.

Volunteer attorneys who continue toserve will also receive a CLE coupon goodtowards one CLE credit for every addition-al two appearance dates they perform. Forinstance if you volunteer for 6 additionalappearances, at either a court settlementconference or client consultation, you willreceive 3 coupons which would be goodfor ANY 3 credit Suffolk Academy of LawCLE program.

Access to a special website whichinclude forms, laws, CLE material, on-lineappointment scheduling, and an attorneyforum.

Every volunteer attorney is affordedlegal liability coverage which is being pro-vided through the Nassau Suffolk LawServices policy.

This project is a pro-bono unbundlingprogram. This means that you are not theattorney of record, but only the attorney ofthe day when representing a client.

Currently, the project has over 160 attor-neys who have volunteered, many ofwhom have been very generous in donat-ing their time and talents, but the workload

is just too great. We wish to keep this pro-ject active and successful, but we needyour help. Won’t you consider joining ourproject? Call our Suffolk County Pro BonoCoordinator, Linda Novick at (631) 234-5511, ext. 233. The work is not difficultand is extremely rewarding.

To the 160 plus Suffolk lawyers whohave and continue to donate their time,

please allow me to thank you all. All of ushave made a positive impact, and each ofyou can be proud of the work you do!

Note: Barry M. Smolowitz is an attorneypracticing in Kings Park, Past SCBAPresident, SCBA Director of Technology,and Coordinator of the SCBA Pro BonoForeclosure Settlement Conference Project.

The Very Special New Year’s Resolution (Continued from page 1)

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________________________By Dorothy Paine Ceparano

By the time readers receive this publica-tion, the new year undoubtedly will havedawned and holiday celebrations will be arecent – and, it is hoped, happy – memory.

As work schedules return to normal, oneof the things lawyers might want to do is tothink about ways to extend their practicesand expand their existing skills. Continuinglegal education, of course, is dedicated tothose goals, and this winter the Academyoffers a number of new and interesting CLEofferings. Whatever your field or futureambitions, you will probably find worth-while and professionally enabling opportu-nities in the Academy’s winter syllabus.

An overview of what is scheduled fromJanuary through March (plus a few springdates) follows.

LitigationThe new year kicks off with a cutting-

edge seminar on E-Discovery, scheduledfor the evening of Wednesday, January 12.The expert faculty assembled for the pro-

gram will cover what attorneys must knowabout the new e-discovery State require-ments. Last summer, Chief Judge JonathanLippman altered the Uniform Rules of TrialCourts to stipulate that attorneys “must besufficiently versed in matters relating totheir clients’ technology systems to discusscompetently all issues relating to electronicdiscovery” at preliminary conferences. Inthis program, you will learn how to build anEDD (electronic data discovery) processthat is defendable in court, that contributesto your overall litigation strategy, and thatwill help you to avoid possible sanctions.Presenters are Hon. Emily Pines; MauraGrossman of the New York City firmWachtell, Lipton, Rosen & Katz; and com-puter experts Yalkin Demirkaya and SalLlanera of Cyber Diligence, Inc., an e-dis-covery, computer forensics, and informa-tion technology investigative services firm.SCBA Director Cheryl Mintz and AcademyOfficers Allison Shields and Hon. JamesFlanagan are the program coordinators.

Later this winter, a CLE entitled“Evaluation of a Negligence Case” will pro-vide personal injury lawyers with requisite

information for case evaluation, suggestionsto increase case value or improve defensepositions, forms for intake and pre-trial dis-covery, and insight into the judicial standardof material deviation pursuant to CPLR sec-tion 5501. The program will be presented onthe evening of Wednesday, March 16, andwill feature Hon. James Flanagan with anexpert panel representing perspectives of thebench, plaintiff’s bar, and defense.

Criminal PracticeIf you missed the information-packed

Criminal Law Update presented by Hon.Mark Cohen and Kent Moston in the fall,another opportunity to gain their keeninsights on the practical ramifications of U.S.Supreme Court and NYS Court of Appealsdecisions awaits. A video replay will be pre-sented in the SCBA Great Hall on Tuesday,January 18 (4:00 – 7:00 p.m.). William Ferriswill provide in-person commentary.

Those who handle criminal matters willalso want to look for publicity announcing thespecific date of a February evening seminar onHandling DUI and DWI Cases. Subjectmatter will include the new intoxilator law andthe special considerations of DUI mattersinvolving prescription drugs. ScottLockwood, an Academy Officer and the pro-gram coordinator, will assemble a knowledge-able faculty to address these and other issues.

Bankruptcy PracticeJust as some businesses do well in a poor

economy, some legal practice areas seespikes in the demand for services duringfinancial downturns. One such area is bank-ruptcy practice, and the growth in client andpotential client bases has triggered a conse-quent demand for CLE courses. In anattempt to meet the needs of constituents, theAcademy has presented a number of pro-grams on bankruptcy and related topics oflate, with three new ones are on the horizon.

On Thursday, January 20, Bankruptcy

Judge Alan Trust and Academy DeanRichard Stern, a bankruptcy lawyer withMacco & Stern, will present a lunchtimeprogram entitled “The Top Ten Do’s &Don’ts in Consumer Bankruptcy Cases.”An interactive discussion will focus on pro-cedural and practical issues affecting thosewho practice before the Bankruptcy Court,and new lawyers and paralegals are strong-ly urged to attend.

Then, on Tuesday, February 15, the focusof another lunchtime program will beChapter 13 Plans. This seminar will featureChapter 13 Trustees Marianne DeRosa andMichael Macco, who will explain Chapter 13and review do’s and don’ts, common errors,and practical issues.

Finally, a Bankruptcy Update has beenscheduled for the spring: On the evening ofThursday, April 14, a panel of judges andexperienced practitioners will reviewchanges, trends, and potential developmentsthat affect bankruptcy practice.

Elder Law & Estate PracticeThose whose practices comprise elder

law or estate matters will find abundantofferings in the Academy’s WinterSemester.

The Trusts Series developed by RalphRandazzo continues this winter withIrrevocable Life Insurance Trusts, pre-sented by Richard Weinblatt, scheduled forlunchtime on February 2, and GrantorRetained Annuity Trusts (GRATS), pre-sented by Paul Dorr, scheduled forlunchtime on March 1. (Another componentof the series, Lifetime Trusts for Minors,which was originally scheduled for January,has been postponed to June 7.)

A relevant adjunct to the Trust Series is anewly announced lunchtime program enti-tled “Fiduciary Selection, FiduciaryLiability & the Prudent Investor Act.”Also coordinated by Mr. Randazzo, this

ACADEMY OF LAW NEWS

ACADEMY

Calendarof Meetings & Seminars

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

January7 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m.

Breakfast buffet. All SCBA members welcome. 12 Wednesday E-Discovery. 6:00–9:00 p.m. Sign-in and light supper from

5:30 p.m.13 Thursday` Anatomy of a Medical Bill (Health & Hospital Law).

6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.18 Tuesday Fiduciary Selection, Fiduciary Liability & the Prudent

Investor Act. 12:30–2:30 p.m. Sign-in and lunch from noon18 Tuesday Video Replay: Criminal Law Update. 4:00–7:00 p.m.

Sign-in from 3:45 p.m. Snacks.19 Wednesday Dealing with a Title Company. 6:00–9:00 p.m.

Sign-in and light supper from 5:30 p.m.20 Thursday Top Ten Do’s & Don’ts in Consumer Bankruptcy Cases

(recommended for new lawyers and paralegals). 12:30–2:30 p.m.Sign-in and lunch from noon.

24 Monday Academy Curriculum Committee Meeting. 4:30 p.m. All welcome.

31 Monday Uncontested Matrimonial Actions. 12:30–2:45 p.m. Sign-in and lunch from noon.

February2 Wednesday Trusts Series; Irrevocable Life Insurance Trusts.

12:30–2:15 p.m. Sign-in and lunch from noon4 Friday Law in the Workplace Conference. 9:00 a.m.– 4:00 p.m.

Sign in from 8:30 a.m. Continental breakfast and lunch buffet.7 Monday State of the Estate Tax. 6:00–9:00 p.m. Sign-in and light

supper from 5:30 p.m.9 Wednesday Family Court Update. 6:00–9:00 p.m. Sign-in and light supper

from 5:30 p.m.10 Thursday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m.

Breakfast buffet. All SCBA members welcome. (Note changefrom customary first Friday of the month schedule.)

14 Monday Elder Law Update with George Roach. 2:00–5:00 p.m. Sign in from 1:30 p.m. Valentine’s Day snacks.

15 Tuesday Chapter 13 Plans. 12:30–2: p.m. Sign-in and lunch from noon

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

The New Year Brings New CLE Opportunities

More Academy Newson pages 21;

CLE Course Listings on pages 20-21


ACADEMY OF LAW OFFICERS

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

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

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

DEANRichard L. Stern

Executive DirectorDorothy Paine Ceparano

Openings on Academy BoardThe Academy’s Nominating Committee

will meet twice in early 201l: first, to nom-inate a new Dean as Richard Stern com-pletes his second term in office (mandatorylimit according to Academy Bylaws) and,second, to select a slate to fill five vacan-cies occurring on the Academy Board asNancy Ellis, Diane Farrell, RichardFilliberto, Allison Shields, and John Zahercomplete four-year terms (the mandatorylimit for service as an Academy Officer).

Academy bylaws state that the Deanmust be a former or current AcademyOfficer or Trustee (Academy trustees arethe members of the SCBA Board ofDirectors) and must meet all the criteria forelection to the SCBA Board of Directors(one of the positions on the SCBA Board is

occupied by the Academy Dean).New Officers, as per Academy Bylaws,

are selected from among volunteers whohave been active in Academy work andwho have attended some Academy meet-ings. The openings are for one-year terms,upon completion of which application maybe made for a subsequent three-year term.

SCBA members who are interested inapplying for a spot on the Academy boardshould contact Dean Richard Stern, whoserves as chair of the 2011 SALNominating Committee, or AcademyExecutive Director Dorothy PaineCeparano. Please send a resume stressingAcademy and/or SCBA service by mail(560 Wheeler Road, Hauppauge 11788) ore-mail ([email protected]).