li life calendar - scba suffolk lawyer — june 2009 3 by justice thomas f. whelan on friday, april...

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By Laura Lane

The Suffolk County Bar AssociationInstallation and Judiciary Night was ele-gant and undeniably a night to remember.The evening, “In Celebration of the Bench& Bar,” was held at the breathtakinglybeautiful Oheka Castle, a fitting locationfor such a special event.

Ilene S. Cooper became the 101st SCBAPresident surrounded by hundreds of col-leagues, family and friends. The thirdfemale president in the Bar Association’shistory, Ms. Cooper received a great dealof praise from well wishers.

“I have been friends with Ilene for morethan 25 years,” said State Supreme CourtJustice A. Gail Prudenti. “You are about tobe the beneficiary of her many energies,talents and abilities.”

New York State Chief AdministrativeJudge Ann Pfau marveled at Ms. Cooper’saccomplishments saying that she had threepages of background on the new SCBAPresident. “I am delighted that it is awoman president,” she added.

“No one says no to Ilene,” the master ofceremonies, Honorable A. KathleenTomlinson said. “Supreme Court JudgeSandra Day O’Connor described Ilene as‘relentless’ referring to her continual effortsto get a commitment from the SupremeCourt Justice to speak to the SCBA.”

Many people agreed that this was justthe type of president that they’d like to seelead the Suffolk County Bar Association.Suffolk County District AdministrativeJudge H. Patrick Leis III, unable to attend,wrote a letter of praise to Ms. Cooper. Hewrote that he was confident that Ms.Cooper would be an excellent president,remarking on her “proven record of leader-ship and dedication to bettering the legalprofession in Suffolk County.”

The evening also included the presenta-tion of several awards. Scott M. Karson,SCBA Past President (04-05) graciouslyaccepted a Director’s Award as did Amy L.Chaitoff, the chair of the Animal RightsCommittee. Immediate Past President JamesR. Winkler described both award winners as

A Heartfelt

Welcome_________________By Ilene S. Cooper

Below please find the speech that the newSCBA President Ilene S. Cooper gave at theJune 4 Installation and Judiciary Night.

Good evening, welcome to you all- justices, judges, col-leagues, friends and family. I thank each and every one of youfor being here, and am especially grateful to Jane LaCova,members of the Bar Association staff, and my committee ofsupporters for all of your efforts in making this evening a suc-cess. And of course, my sincere gratitude to my predecessorJim Winkler, for his leadership, his unyielding support andcontinuing friendship.

Finally, last but certainly not least, my deepest gratitude tomy family-my mother, for all of her efforts in regard to theinvitations, my son, Jared, for his tireless work in producingthe video loop being shown this evening, and my husband,Mitchell and my son, Alexander, for their advice and under-standing.

I stand before you tonight filled with both humility and pride.I am humbled by the trust you have reposed in me, and honoredto be serving you as this organization's third female President in101 years.

If someone had said to me when I graduated from law schoolthat this position would one day be mine, I would have thoughtit a foolhardy notion. But here I am, after many years of hard

PRESIDENT’S MESSAGE

CPR/AED and Heimlich TrainingThursday, July 23, 10 a.m. to 2 p.m. and 5 to 9 p.m. Bar Center, $20/person.Instructor: Barry M. Smolowitz. Limited space,call the Bar Center for reservations.

Golf and Fishing Annual OutingMonday, August 3Golf: Rock Hill County Club, Manorville.Shotgun start 1 P.M. Fishing aboard a privatecharter board the Osprey IV, out of Port JeffersonHarbor, 7:00 a.m. Fishing trip underwritten by State Bank of LongIsland. Call the Bar Center for further information.

East End Membership Cocktail PartyTuesday, September 22 at 6:30 p.m.Wolffer Estate Vineyard, Sagaponack, NY. AnAmerican winery in the classic Europeantradition. Partially underwritten by Farrell Fritz, P.C.

West End Membership Cocktail PartyMonday, October 26 at 6 p.m.Blackstone Steakhouse, 10 Pinelawn Road,Melville.

The September and October Membership meetingsare planned for SCBA members to come togetherto share ideas, discuss community issues, and theirimpact on the legal community in SuffolkCounty. Save these dates and plan to attend.

BAR EVENTS

Ilene S. Cooper

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 25 No 10June 2009website: www.scba.org

SUFFOLK LAWYERTH

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THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

(Continued on page 24)


Juggling Practice and Parenthood. . . . . . . 5Communication Strategies . . . . . . . . . . . . . 6Girlfriend and Other Success Strategies . . 5Challenges Facing Women Lawyers . . . . . 4_______________________________________

CPR and AED Saves Attorney . . . . . . . . . . 3Honoring First Ladies . . . . . . . . . . . . . . . 10Business Tips . . . . . . . . . . . . . . . . . . . . . . . 13Restaurant Review . . . . . . . . . . . . . . . . . . 11Future Lawyer’s Forum. . . . . . . . . . . . . . 19Freeze Frame . . . . . . . . . . . . . . . . . . . . 20,29SCBA photo album . . . . . . . . . . . . . . . . . . 16_______________________________________

Legal ArticlesAmerican Perspectives . . . . . . . . . . . . . . . . 25 Animal Law . . . . . . . . . . . . . . . . . . . . . . . . 12Bench Briefs . . . . . . . . . . . . . . . . . . . . . . . . . 3Commercial Litigation . . . . . . . . . . . . . . . . 18Consumer Bankruptcy . . . . . . . . . . . . . . . . 14Court Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 8Entertainment Law . . . . . . . . . . . . . . . . . . . . 8Federal Practice. . . . . . . . . . . . . . . . . . . . . . 15Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Pro Bono . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Tax Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Trusts and Estates (Harper) . . . . . . . . . . . . 13_______________________________________

Academy News . . . . . . . . . . . . . . . . . . . . . . 32Advantage Listings . . . . . . . . . . . . . . . . . . . 23Among Us . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Calendar: Academy. . . . . . . . . . . . . . . . . . . 28Calendar: SCBA . . . . . . . . . . . . . . . . . . . . . . 2Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

INSIDE…JUNE 2009

FOCUS ON WOMAN & LAWSPECIAL EDITION

SCBA Installation and Judiciary NightMore Than a Touch of Class

Suffolk County Surrogate Judge John M. Czygier, Jr., left, installed the new Board ofDirectors that included, from left, First Vice President Matthew E. Pachman, TreasurerDennis R. Chase, Second Vice President Arthur E. Shulman, President Elect Sheryl L.Randazzo, and William T. Ferris III, Secretary.

SCBA’s new President Ilene S. Cooper toasts the Bar Association at her installation.

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THE SUFFOLK LAWYER — JUNE 20092

Important Information from the Lawyers Committee on Alcohol & Drug Abuse:Thomas More GroupTwelve-Step MeetingEvery 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

SCBA

OF MEETINGS AND EVENTS

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

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

For any questions call: 631-234-5511.

JUNE 200922 Monday Executive Committee meeting, 5:30 p.m., Board Room.23 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board

Room.24 June Animal Law Committee, 6:30 p.m., Board Room.29 Monday Board of Directors, 5:30 p.m., Board Room.

JULY 200920 Monday Executive Committee, 5:30 p.m., Board Room.23 Thursday CPR/AED four hour training course taught by Barry M.

Smolowitz. Choice of two sessions: 10:00 a.m. - 2:00 p.m. or5:00 p.m.-9:00p.m. A heart healthy meal will be provided.

AUGUST 20093 Monday SCBA’s Annual Golf and Fishing Outing, Rock Hill

Country Club, Manorville, N.Y. Shotgun at 1:00 p.m.Fishing out of Port Jefferson. Further details forthcoming.

SEPTEMBER 200914 Monday Executive Committee meeting, 5:30 p.m., Board Room.22 Tuesday East End Reception - “Meet, Greet & Mingle” with your

colleagues -Free to members at W�lffer Estate Vineyard,139 Sagg Road,, Sagaponack, N.Y., 6:30 p.m. to 8:30 p.m.Seating is limited. You must register. Call Bar Center forReservation.(This reception is underwritten by Farrell Fritz,P.C. & Aquebogue Abstract Corporation (Kenneth B.Zahler, President)

29 Tuesday Board of Directors meeting, 5:30 p.m., Board Room.

OCTOBER 200913 Tuesday Executive Committee meeting, 5:30 p.m., Board Room.15 Thursday Pro Bono Recognition Night. Further details forthcoming.19 Monday Board of Directors meeting, 5:30 p.m., Board Room.26 Monday West End Reception -“Meet, Greet & Mingle” with your

colleagues- Free to members -Blackstone Steakhouse, 10Pinelawn Road, Melville, N.Y., 6:00 p.m. - 8:00 p.m.Seating is limited. Your must register. Call Bar Center forReservation. (This reception is underwritten by CBSCoverage Group (Regina Vetere, Insurance Specialist forLawyers) and Realtime Reporting, Babylon NY (Ellen P.Birch, President).

Calendar

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.

Ilene S. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PresidentSheryl L. Randazzo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . President ElectMatthew E. Pachman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . First Vice PresidentArthur E. Shulman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second Vice PresidentDennis R. Chase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TreasurerWilliam T. Ferris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SecretaryLynne M. Gordon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Maureen T. Liccione . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Hon. Peter H. Mayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Daniel J. Tambasco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Hon. W. Gerard Asher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Annamarie Donovan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Joseph A. Hanshe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)George R. Tilschner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Cheryl F. Mintz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Lynne Poster-Zimmerman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Richard L. Stern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Kerrie Pamela Stone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)John L. Buonora . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2010)Barry M. Smolowitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2011)James R. Winkler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2012)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 2009-2010

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

DOROTHY PAINECEPARANOAcademy News

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

David A. MansfieldCraig 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.

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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 ofJuly and August, by The Long Islander Newspapers under the auspicesof The Suffolk County Bar Association.© The Suffolk County BarAssociation, 2009. Material in this publication may not be stored orreproduced in any form without the express written permission of TheSuffolk County Bar Association. Advertising offices are located at TheLong Islander, LLC, 149 Main Street, Huntington, NY 11743, 631-427-7000.

Send letters and editorial copy to: The Suffolk Lawyer

560 Wheeler Road, Hauppauge, NY 11788-4357Fax: 631-234-5899

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

or for Academy news: [email protected]

Thank you for your generosity and support

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.”

Donors Purpose

Paul S. Sibener Donation to the SCBA Scholarship FundHonoring Richard L. Stern, the New Dean of theAcademy of Law

Dawn L. Hargraves, P.C. Donation to the Lawyer Assistance Foundationin Memory of William Harrison, Esq.

Jane and Joe LaCova Donation to the Lawyer Assistance Foundation in Memory of Gloria Sherwyn, President Ilene S.Cooper’s Mother

Harvey B. Besunder Donation to the Lawyer Assistance Foundation in Memory of Gloria Sherwyn, President Ilene S.Cooper’s Mother

To Advertise in The Suffolk Lawyer

Call

(866) 867-9121

THE SUFFOLK LAWYER — JUNE 2009 3

___________________

By Justice Thomas F. Whelan

On Friday, April 24, 2009, a ceremonywas held in the courtroom of my court-house in Riverhead, New York, recogniz-ing the court personnel who had previ-ously helped to revive an attorney in car-diac arrest with CPR and the use of anAED (automated external defibrillator).On March 24, 2009, the attorney, KevinWay, slumped in his seat and fell into res-piratory arrest. Another attorney, RobertSteinberg, who is an EMT, and I, also anEMT, offered assistance and maintainedan open airway. Soon, the stricken attor-ney began to deteriorate and he slippedinto cardiac arrest.

A senior court clerk, Donna Johnson,who is also the Chief of the Riverheadvolunteer Ambulance Corp., appearedand quickly and professionally took con-trol of the situation. She immediately

directed the commencement of CPR,while at the same time, radioing for anambulance. She then called for an AED,set it up and proceeded to shock the indi-vidual. While he initially revived, after afew moments, he again went into cardiacarrest. Donna, once again, used the AEDto shock him back to sinus rhythm.Without her strong and decisive action,the outcome could have been tragicallydifferent.

The well-attended ceremony on April24, 2009, was organized by ThomasO’Neill, President of the Suffolk CountyCourt Employees Association. Remarkswere offered by me, Donna Johnson andthe attorney, Kevin Way, who appearedwith his wife and offered a moving trib-ute to all who helped in saving his life.The ceremony also acknowledged thatsuch acts are rarely accomplished withoutthe assistance of dedicated and commit-

ted co-workers. Awards were offered toSCO Dan Clark and SCO Dara Fee forassisting in obtaining the various medicalsupplies (oxygen, etc.) that were requiredfor this life-saving event. Court OfficerTodd Kosinski, who without hesitationjumped and assisted with CPR compres-sions, was also recognized for the majorrole he played in the successful outcome.

As noted above, Robert Steinberg ini-tially assisted the patient and never lefthis side. He provided valuable EMT sup-port. In addition to that Good Samaritan,another Good Samaritan, JamesSquicciarini, Assistant Suffolk CountyAttorney, upon hearing of the code inprogress, ran from a different courtroomand offered his support as an EMT. Hisobvious experience also helped to guide

all through the crisis. Also recognized were SCO Rod

Richardson, Lt. Donald Curaba, Lt. FrankDautzenberg and Sgt. Alice Stram-Clavin, who helped in positioning thebody, preparing medical equipment, call-ing 911, in removing the public from thecourtroom, crowd control, in the securingof the patient onto the stretcher, the prop-er packaging of the patient and in assist-ing Riverhead Volunteer AmbulanceSquad out of the building.

It was acknowledged that the statisticsin such matters are not very encouraging.However, thanks to the training of thevarious volunteers set forth above and theavailability of an AED on that day, theodds were defied and everyone was grate-ful for the good deed done.

Knowledge of CPR and AED

Saves Attorney’s Life in Court

SUFFOLK COUNTY

SUPREME COURT

Honorable Paul J. Baisley, Jr.

Motion to disqualify defense counselgranted; conflict of interest

In Jeffrey Douglas, an infant by hismother and natural guardian, AmyDouglas and Amy Douglas, individuallyv. Salvatore Leo, M.D., CharlesMirabile, M.D., Long Island MaternalFetal Medicine, Good SamaritanHospital and Noel Varghese, D.O.,Index No. 9110-05, decided on March26, 2009, the court granted plaintiffs’motion disqualifying defense counsel. Inopposing the motion, all three of the sub-ject defendants submitted affidavit oraffirmations acknowledging that theyhad been advised of the potential con-flicts of interest among the defendants,that they had discussed the potential con-flicts, that they were nevertheless com-fortable with their chosen defense coun-sel regardless of the potential conflict ofinterest and that they wanted the firm toremain as their counsel during the courseof this case. The court held that, here, theconflict among the defendant (all ofwhom have interposed as an affirmativedefense the limited liability provisions ofCPLR Article 16) was not merely poten-tial, it was actualized, as evidenced bythe instant motion for summary judg-ment, on behalf of two of the defendants-clients and invoking as their defense theactions or inactions of their other defen-

dant-client. The court reasoned thatbecause dual representation is fraughtwith the potential for irreconcilable con-flict it will rarely be sanctioned evenafter full disclosure has been made andthe onset of the clients obtained . . .orwhere the conflict extends to the verysubject matter of litigation.

Motion to dismiss complaint denied;flaws correctable

In Courtney McGough v. William Mannand Mary Kaelin, Index No. 15668-07,decided on March 5, 2009, the courtdenied defendant’s motion for dismissalof the complaint. The court noted that inopposition to the motion, the plaintiffresponded by an attorney who had notfiled a notice of appearance with the courtor served one upon defense counsel. Inaddition, this counsel attached an amend-ed complaint but such a submission wasoutside the time period to do so withoutleave of the court. While all of this waspointed out to the court in a purportedReply Affirmation, that ReplyAffirmation was not to be considered bythe court since it was not signed. Also, thecourt reasoned that while it was true thatthe plaintiff did not include a statementpursuant to CPLR 1603 that certain limi-tations on liability did not apply, such anomission was not fatal to a complaint.

Honorable Emily Pines

Motion to disqualify defense firm granted;representation in violation of DR 5-108

In Stephen U. Burke, as executor of theEstate of Lenore Gilmartin, CommackAuto Transport, Inc., Robert McCormack,Jr., Carillon Nursing and RehabilitationCenter, “John” Fritz, M.D., and CharlesMasciolo, M.D., Index No. 9089-03,Commack Auto Transport, Inc., andRobert McCormack, Jr. v. HughGilmartin, Carillon Nursing andRehabilitation Center, “John” Fritz,M.D., Robert Moriarty, M.D. and CharlesMasciolo, M.D., Index No. 24-391,Commack Auto Transport, Inc., andRobert McCormack, Jr. v. Melvin Fritz,M.D., Visiting Home Service of Suffolkand Deirdre Green, R.N., Index No. 26-300, decided on April 22, 2009, the courtgranted plaint i f f on the counter-claim/third party defendant, Gilmartin’smotion to disqualify defense counselfrom continuing to represent defendant,Charles Mascioli, M.D. The court point-ed out that it was undisputed thatdefense counsel represented Gilmartinin this very litigation, prior to hisemployment at defense firm and it couldnot be disputed that the positions ofGilmartin and Mascioli were adverse inthis litigation. Moreover, there was noallegation that the defense firm obtainedGilmartin’s consent prior to subsequentrepresentation. Rather, they continuedin their representation of Mascioli upondefense attorneys employment withtheir firm and not only took no earliersteps to erect the so called “Chinesewall” but instead, permitted defenseattorney to attend an examination beforetrial in this case.

Honorable Sandra L. Sgroi

Motion to strike note of issue granted;supplemental bill of particulars was infact an amended bill of particulars

In Richard P. Costanzo v. Robert T.Morrow, Christine R. Morrow & MaryT. Trainor, Index No. 3459-06, decidedon December 9, 2008, the court granteddefendant’s motion to strike the matterfrom the trial calendar and vacate thenote of issue and certificate of readiness.The court found that since the case hadbeen restored to a pre-note of issue sta-tus, the rule that a party may serve anamended bill of particulars once as amatter of course prior to filing the noteof issue was applicable. Plaintiff’s sup-plemental bill of particulars was, in factan amended bill of particulars sine itsought to assert new injuries not previ-ously claimed.

Honorable Thomas F. Whelan

Motion to withdraw as counsel denied;jurisdictionally defective

In Linda Posillico v. Nemco Construction,Ltd., Gutter Dr. Inc., Michael Nemechek,Gary Marzano, Kathy Marzano, and CAPElectricity, Inc., Index No. 4217-06,decided on December 1, 2008, the courtdenied defense counsel’s motion for leaveto withdraw as counsel. The recordreflected that this motion was interposed

BENCH BRIEFS


NOTICE OF TIME CHANGE FOR CPR/AED/HEIMLICH MANEUVER TRAINING

In an effort to make this training available to our members and their familieswho might have other commitments during the day of Thursday, July 23 thetraining times have been rescheduled to:

10 a.m. to 2 p.m. 5 to 9 p.m.

The program instructor is Barry M. Smolowitz;$20/person which includes a heart healthy lunch for the a.m. session and a heart

healthy dinner for the p.m. session. Registration. is limited. Please call Marion at the bar or email [email protected]. The ChaseSensale Law Group, L.L.P. is graciously sponsoring the materials forthis event.

The court employees who received a plaque from the President of the Suffolk County CourtEmployee's Association union for their assistance in saving the life of attorney Robert Way.There for the event were, Sergeant Alice Clavin, Senior Court Officer Rod Richardson,Senior Court Clerk Donna Johnson, Court Officer Todd Kosinski, attorney Kevin Way,Senior Court Officer Dan Clarke, Senior Court Officer Dara Fee, Lieutenant FrankDautzenberg, Justice Thomas Whelan, and (not in photograph) Senior Court OfficerMichael Manzello and Lieutenant Donald Curaba.

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For this special section on Women &The Law, The Suffolk Lawyer interviewedSheryl Randazzo, President-Elect of theAssociation. Sheryl has been a practicinglawyer for the past 15 years and an activemember of both the Association and theAcademy of Law. Sheryl practices EstatePlanning and Elder Law with her brother,Ralph Randazzo at Randazzo &Randazzo, LLP in Huntington.

TSL: What do you think are the biggestissues facing women lawyers today?

SR: The biggest issues facing womenlawyers today are not exclusivelywomen’s issues, but rather issues that allmembers of our profession are facing –these issues relate to how to maintain athriving and rewarding professional prac-tice without letting it consume us. Add tothat the current economic crisis, increas-ing burdens placed on lawyers financially

and professionally due to state require-ments, and the ever-growing number ofpractitioners in the market and it is obvi-ous these are challenging times for allattorneys.

For women attorneys, our greater chal-lenges do not necessarily come from ourlegal careers; they arise from out continu-ing roles as caregivers in addition to ourcareers. Many of us are still our parents’daughters, our husbands’ wives, and ourchildren’s primary caregivers on top ofpracticing law. Most women lawyers’challenges come from our efforts to try toperform each of these roles as if theywere our exclusive roles, seldom facingthe realities that they cannot each be per-formed at 100 percent simultaneously.The pressures and stress created by tryingto be everything to everybody often taketheir toll on women, and we can see thisin many female attorneys in particular.

If I had to identify the immediate issues

or needs of women attorneys, I would say– 1) taking better care of ourselves,including getting more sleep, eating bet-ter and finding time to exercise, 2) over-coming perfectionism, and 3) learninghow to delegate and/or say “no.”

TSL: Do you think those issues are thesame for women lawyers in SuffolkCounty, or are there additional or differ-ent challenges faced by women who prac-tice here?

SR: Suffolk County is a unique geogra-phy in which to practice law for womenand men. The vast space our county cov-

ers and the vast majority of practicingattorneys being solo or small firm practi-tioners is a challenge our bar associationrecognizes and tries to address in every-thing we do. For women lawyers, Ibelieve this geography and dynamic canbe further isolating as we try to do it allwithout having the “support” of a largerfirm setting.

I am always amazed when I read arti-cles from larger bar associations and pro-fessional publications on women in thelaw and just how irrelevant they are to thetypical woman lawyer in Suffolk County.Most seem to be focused on aspirations ofbreaking a glass ceiling in a larger firm orbecoming a judge, which are clearly wor-thy endeavors, but which are so out oftouch with me and most of my SuffolkCounty colleagues.

Working alone or as the sole womanattorney in a law practice often results infeelings of isolation and having no imme-diate place to turn. This is part of the rea-son bar association and other profession-al affiliations are not only so valuable butnecessary to women attorneys in SuffolkCounty.

TSL: What changes or advances haveyou seen for women in the legal profes-sion over the past 15 years, particularlyhere in Suffolk County? What additionalchanges or advances do you think need tobe made and what do you think needs to

Challenges Facing Women Lawyers in 2009

Sheryl L. Randazzo

women and the law

An interview with President-Elect, Sheryl Randazzo


The Suffolk Lawyer wishes to thank

Women & The Law Special Section Editor Allison C. Shields

for contributing her time, effort, and expertise to our June Issue.

Allison C. Shields


_______________

By Debra Snider

A wonderful woman joined the firm Iwas with two years after I started practicinglaw. She was also a corporate lawyer, freshout of law school. I thought she was terrif-ic from the instant we met. She had thesharpest, wittiest, most ironic sense ofhumor, a quick intelligence, and more thanthe usual allotment of plain good sense.She was tall and lanky (to this day, I havenever met a woman who looked better in apair of jeans), and she had twinkly blueeyes and a shock of smooth blond hair cutperfectly to compliment her delicate, high-cheekbone face.

For some reason I forgot long ago, myfriend and I took to walking home togetherafter work. We'd leave our offices atDearborn and Madison in Chicago's Loopand walk up Michigan Avenue to WaterTower Place, where she would head east toher Streeterville apartment and I wouldjump on the 135 bus up to Belmont Harbor.

On those walks, we talked about any-thing and everything, and the conversa-tions were so engaging that I nevernoticed the actual walking. (Anyone whoknows me knows that I rarely walk evena block without complaining, and thatwas only slightly less true 28 years ago.Trudging, especially for over a milethrough heat, humidity and Chicago'spedestrian traffic, has never been afavorite activity of mine. Add to that the

more formal work clothes andshoes we wore in the 80s andyou'll get an idea of how trulygreat our conversations were.)We cut the more pompous ofour colleagues down to size, wesolved legal problems, wegriped about the illogicalitiesof our work environment, andwe plotted strategies for ourcareers and our lives.

I'm convinced that those conversationswere a big part of what set us on the roadto career success. Having similarly situat-ed girlfriends is necessary to flourishingin settings where we are not the norm,where the rules were not written by or forus, and where we have to question ourinstincts because, however solid they maybe in other arenas, they are not usuallyhardwired for naturally understandinghow to succeed in male-dominated workenvironments.

During the early years of my career, Ifelt like an impostor most of the time and,occasionally, like an unwelcome interlop-er. In addition to being incredibly sup-portive and reassuring, my daily conver-sations with my friend as we walked upMichigan Avenue kept me sane, ground-ed and focused. They helped me be happyat work. They also began the thoughtprocess that allowed me to articulate,many years later, the essential elementsof building a successful and satisfying

career. I think of these elementsas high level lessons learned;operating in accordance withthem, even before I knew themconsciously, is what differenti-ated me at work and made mycareer soar.

Success isn’t success if itdoesn’t make you happy. A

career is not a fixed road to a fixed destina-tion. It’s not about any particular destina-tion (as in job), but rather about the journey– how you feel and build skills and con-tribute along the way. Career satisfaction isan ongoing thing, a process, a pursuit; it’snot a means to an end, it is the end and it iswhat you should prioritize. Like satisfac-tion, success has to be measured in person-al terms. Cleaving to some external defini-tion, rather than to your own, is a suckerbet. You have to suit yourself.

Once you’re clear on what you want,focus on what the organizationrewards. Like people, organizations havepersonalities, core values and structure.Recognize this and figure out how therules can work for you. Get yourself inpositions where you believe that whatyou’ve set out to do can be done, that youcan do it, and that it will add value. Bewho you are – there isn’t time for twopersonalities – and look to become indis-pensable. Commit yourself to leaving

every place you work better than youfound it.

Get organized and stay organized.Being busy is not an excuse for being unre-sponsive and inconsiderate. Clear prioritiesand A+ organizational skills aren’t chores;they’re necessities that will make your lifeeasier and better, give you a competitiveadvantage, and let you be the kind of per-son you want to be relative to responsive-ness, courtesy and generosity.

Demonstrate leadership every chanceyou get. You don’t have to be a boss to bea leader. Everyone has frequent opportuni-ties to make things better and more fun,commit to the success of others, fixprocesses, and otherwise contribute tostrong teamwork, strong culture, andstrong organization. People who act likeleaders feel more empowered, more posi-tive, more effective and more satisfied.

Note: Debra Snider is an author, speak-er, no-longer-practicing lawyer and for-mer financial services senior executive.Her books include A Merger Of Equals, anovel about a woman determined to climbthe corporate ladder, and The ProductiveCulture Blueprint, a business book for andabout lawyers. Visit Debra’s website atwww.debrasnider.com for leadership, pro-ductivity and other free career resources.

Girlfriends And Other Success Strategies

women and the law

Debra Snider

______________

By Jeena R. Beli

While recently participating on apanel at the Suffolk County BarAssociation’s program, “Birth of a LawPractice” I noticed that one of the atten-dees brought his “tween” to the program.I wasn’t surprised at all, and when Irelated that my own daughter is the rea-son I put great effort into maintaining awork/life balance, he nodded with com-plete understanding. Carefully schedul-ing work-time around parent-time comeswith the territory when you’re a person-al injury litigator in solo practice. Is itdifficult? Yes. Can it be done? Yes,with a lot of planning and a little cre-ativity. Here are some things for you toconsider if you are thinking about howto juggle a career in litigation and par-enting.

Incorporate work/family balance intoyour business plan

The preparation of a yearly businessplan is crucial for everyone who has asolo practice. As you create yours, it isimportant that you design it with an ideaof how you will balance family and worklife. Add a section in your plan whichfocuses on researching child-careresources with the goal of finding thebest one that will fit your litigationschedule, including court appearances,client meetings and examinations beforetrial. If you have school-aged kids, youmay need to consider a before or after-school program. Have you consideredhow you will work in drafting motionsaround after-school and weekend activi-ties? How will you handle holiday and

Summer school breaks? Theseissues should be well thoughtout before you begin handlinga case load. Keep in mind,however, that children getsick, babysitters get flat tiresand school snow days do notnecessarily mean that court isclosed. You will need toinclude back-up childcarearrangements into your busi-ness plan.

Explore part-time office shares to getthe most out of working from home

When I started my practice in 2007, Iknew that at the beginning, workingfrom home was going to save me a lot ofoverhead costs. I also knew that work-ing within earshot of the family roomwould provide me with an opportunity tospend some unhurried, quality time withmy then four-year-old. I set up my homeworkspace with an easel and art suppliesso that my daughter and I could sharetime together while I did legal researchor checked emails.

As my practice started to grow, I need-ed to find some professional space inwhich to meet clients and conductExaminations Before Trial. At first Ilooked for an office sublease, but I soonrealized that in paying substantialmonthly rent, I would feel the need to tiemyself down to the office, negating thetime I was enjoying with my daughter.Instead, I turned to a nationwideprovider of virtual office space (thinktimeshare). For less than $ 200.00 amonth, I have 40 hours worth of officespace, complete with desk, chairs, tele-

phone and internet connectionas well as receptionist and cof-fee station. What more could Iask for? I can get to court orschedule meetings after themorning school bus pick up andknow that I will be home intime to pick up my child fromaftercare. When I don’t havemeetings, I work from homeand enjoy every minute of it.

Capitalize on delegation to make yourbusiness work (and vice versa)

One way to manage your time moreeffectively is to delegate work to otherfamily members or to contract workersyou hire for specific projects. When Imanaged a law firm, I would hear suchcomments as, "It’s easier if I just do thistask on my own" and "If I delegate thework there is no guarantee that the workwill be done properly." However, takingcontrol of all tasks big and small canlead to early burnout and dissatisfaction.As litigator and parent, letting otherstake care of certain daily details must beincluded in your overall plan. Make a listof family, friends, and even neighborswho you think would be willing to stepin on occasion to give you a hand anddon’t be afraid to ask for assistance.

On the flip side, find a colleague ortwo who practice in the local courts whocan cover appearances for you on a perdiem basis if you have a sick child athome or cannot otherwise attend your-self. Consider meeting clients on week-ends so you can stay involved in yourchildren’s afterschool activities. Sincemany of my clients work Monday

through Friday, they appreciate theSaturday consult.

If all else fails, incorporate the kidsinto the schedule

In the courthouse, you can always tellwhen it’s the week between when camplets out and the beginning of the schoolyear. During that time, you will noticequite a few children accompanying theirlitigator parents in the Suffolk CountySupreme Court DCM part or on simplecalendar calls. As a last resort, if you donot have a trial or deposition scheduled,you can take your child into the court-room once in a while if they will notcause a disruption. I have found it nec-essary to bring my little girl with me tosimple court appearances. She usuallybrings her portable video game and putsit on silent mode. She sometimes takesa line from a famous dancing show andasks me when she will be able to go see“The Judges” again.

You may run into a situation whereyour client is not able to meet with youbecause he or she does not have anyone towatch their children. Rather than cancelthe appointment, see if you can rearrangethe meeting so that it can be done at theirhome. Offer to bring your child and youcan turn the meeting into a professionalplay date. As outlandish as this maysound, I have been able to successfullyturn what could have been a lost opportu-nity into a benefit by letting my daughterentertain my clients’ children while weget down to business, and my clientsappreciate the personal approach.

As you give your business plan one

Keeping It All in the Air

By Jeena R. Beli



___________________By Allison C. Shields

We can all agree that menand women are biologicallydifferent – and that includestheir brains. Studies haveshown that men and women’sbrains are wired differently.In general, men’s brain func-tion is more localized and menfavor the right hemisphere ofthe brain. Women’s brains have moreconnections, their brain function is moredistributed, and they use both hemi-spheres, rather than favoring one.Differences derive from hard wired sur-vival instincts and evolutionary strate-gies, along with biological influences –both hormonal and chromosomal.

In addition to the biological differ-ences, there are social differences in theway men and women are brought up, inthe way they play, in the expectationsplaced upon them, and in the way theyare taught to react to different situations.Some differences result from individualexperience.

The result of all of these differences isa difference in the way men and womencommunicate. Understanding these dif-ferences can help you adapt, or use thesedifferences to your advantage in yourpractice.1

Despite the general differences, not allmen are the same, nor are all women thesame. The communication styles dis-cussed in this article discuss ‘male’ and‘female’ styles, but just because you’re aman doesn’t mean that you follow themale communication style, and viceversa2 Most of us may recognize ele-ments of each style in our communica-tion.

To motivate and persuade people, youhave to talk to them about things theycare about in terms that matter to them.Knowing which style you favor andwhich style the person with whom youare communicating exhibits most fre-quently can help you determine the bestapproach to take with a prospect, client,boss or colleague.

‘Female’ StyleTypically, the ‘female’ style focuses

on relationship and connection. Womenlike personal details and stories, and

they get close with one anotherby talking. They bond first,before getting down to business.This style also emphasizesinteraction, caring for others, agroup perspective, teamworkand offers of help. Women lookfor win/win situations andexhibit empathy. Women are‘synthesizers;’ they look forconnections and opportunities

to bundle things together. They aremulti-taskers.

Many women are more demandingwhen it comes to making an initial deci-sion (which may include the decision tohire a lawyer), often seeking the ‘perfect’answer, but once the decision is madewomen tend to be more loyal. They don’tlike boasting or ‘in your face’ sales pitch-es. Those exhibiting the female style areinternally competitive, focusing on per-sonal best, but they want everyone to getahead and move forward. They oftendefine excellence as the merging of manytalents. They see hierarchy as a fact oflife, but prefer to minimize those distinc-tions socially.

Male StyleIn contrast to the female style, the male

style focuses on facts and figures, accom-plishments and credentials. Men are moretask-oriented and like to get right to thepoint. They get close with one another bydoing things together. When making pur-chasing decisions, men seek the ‘goodenough’ solution to get it over with. Theyare single minded.

Men are ‘analyzers;’ they take thingsapart. They respond to abstract principlessuch as right and wrong, justice and duty.Competition for men is more externallyfocused. They are hierarchical, exhibitmore of a win/lose outlook and a ‘getahead’ mentality. Men want to make theirmark on the world. They value freedom,independence and autonomy and resentbeing influenced by others. Men commu-nicate to report facts or to establish status.

How can you use these styles to helpyour practice?

Lawyers whose natural style is thefemale style are more naturally attuned tothe needs of others and are more apt tofollow-up. They are more apt to make

Successful Communication

Strategies For Women (and Men) in Law

women and the law

SAVE THE DATEMembership Cocktail Parties

with Compliments of the SCBA

Wolffer Vineyards Blackstones6:30 p.m. – 8:30 p.m. 6:00 p.m. – 8:00 p.m.September 22, 2009 October 26, 2009

Reservations LimitedFor Information Contact:

Jane La Cova Ilene S. Cooper (631) 234-5511 (516) 227-0736


Allison C. Shields

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

LAND USE LITIGATION, COMMERCIALAND REAL PROPERTY LITIGATION

Flower, Medalie & Markowitz24 E. Main Street Suite 201

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


On the Move…Jennifer Rando Cristiano has been

named an associate at Meyer, Suozzi,English & Klein, P.C. Ms. RandoCristiano concentrates her practice onbankruptcy and commercial litigation

Marie A. Landsman has joinedMeyer, Suozzi, English & Klein, P.C. Ms.Landsman’s practice includes represent-ing landlords and tenants in all aspects ofleasing and licensing involving commer-cial space, including office, retail, shop-ping centers, warehouses, television stu-dios, and antenna towers, as well as com-mercial real estate financing.

Lisa Clare Kombrink has been nameda partner of Twomey, Latham, Shea,Kelley.

Deborah Berger and ReginaBrandow of Berger & Brandow, LLPhave moved their office to 1344 StonyBrook Road, Stony Brook, New York,11790. The firm still concentrates in theareas of education law representing onlyparents, as well as trusts and estates, andreal estate.

Certilman Balin has announced theaddition of two new partners. Vincent J.Pizzulli, Jr. has joined the Real EstatePractice Group, and Paul B. Sweeney hasjoined the Litigation Group. Both will bebased in the firm's East Meadow office.

Congratulations…To Janessa Trotto upon her induction

as President of the Suffolk CountyWomen’s Bar Association.

To Barry M. Smolowitz, recipient ofthe SCBA President’s Award; kudos toScott M. Karson and Amy Chaitoff whoreceived the Directors Awards.

Congratulations to Margery Weinrothwho was recognized by the SuffolkCounty Women’s Bar Association for herdedication and continued support of theirprograms.

Announcements, Achievements, & Accolades…

Works by Chuck Von Schmidt will beincluded in a show featuring award win-ning artists from the Huntington ArtsCouncil's juried landscape, sculpture, por-traiture and photography shows. His workwill be displayed at the Main Street PetiteGallery, 213 Main Street, Huntington.Gallery hours are Monday to Friday from9 a.m. to 5 p.m. and the first twoSaturdays of month from 11 a.m. to 5 p.m.

Lisa Renee Pomerantz was a speakerat the Women’s Expo EducationWorkshop on June 9. Her topic, “GettingYour Product to Market: Consignment,Licensing & Other Options,” was part ofthe expo entitled “Increasing Your SalesDuring Difficult Economic Times” thatwas held at the Middle Country PublicLibrary in Centereach. The program wasopen to the public.

Touro College/Jacob D. FuchsbergLaw Center and its Externship Programpresented Certilman Balin Adler &

Hyman, LLP with the 2008-09Outstanding Employer Awardin appreciation of the law firm'srole in employing Touro Lawstudents at the firm. CertilmanBalin has been involved withthe externship program, sincethe program began three yearsago.

Jay Silverman, a partnerat Ruskin Moscou Faltischek,P.C. has been elected president of TempleBeth Israel in Port Washington for a two-year term.

The law firm of GenserDubow Genser & Cona LLPis offering its booklet, “YourGuide to Elder Law and EstatePlanning” for free as a commu-nity service. The 44-page book-let details everything one needsto make sure their loved onesare taken care of financially,especially during these tougheconomic times, when it ismore important than ever to

plan ahead and protect your assets.Partner and commercial litigator

Christine McInerney of Ruskin Moscou

Faltischek, P.C. has been selected as awinner of w2wlink’s Ascendancy Awardsfor Business Women. She was honoredas an outstanding woman who hasachieved and innovated in the entrepre-neurial setting as well as for her mentor-ship of women in the workplace.McInerney was one of 27 winners nation-ally in the categories of Corporate,Entrepreneur and Career Transition.w2wlink.com is an online communitydedicated to professional women, provid-ing expert knowledge, tools to meet chal-lenges and connections with others in

SIDNEY SIBEN’S AMONG US

Jacqueline M. Siben

(Contiued on page 22)

______________

By Glen P. Warmuth

A blog, short for weblog, is defined as“a Web site that contains an online person-al journal with reflections, comments, andoften hyperlinks provided by the writer”1.Blogs give their writers the ability toimmediately convey information to aworldwide audience typically with no edi-torial oversight. This lack of editorialoversight coupled with the failure of manybloggers to understand the applicable lawoften leads to serious problems when ablogger posts a statement which could beconsidered defamatory.

Defamation cases involving bloggersdiffer from typical defamation casesbecause blogging is often done anony-mously and anonymous speech is protect-ed by the First Amendment2. The issue inanonymous blogger cases is how the courtwill weigh the blogger’s right to remainanonymous against the right of the partywho was allegedly defamed to identify theblogger.

To identify the blogger the prospectiveplaintiff will bring a CPLR 3102(c) pro-ceeding and seek pre-action disclosure.The petitioner may seek the name of theblogger or, if this is not available, theunique IP address of the computer used bythe blogger.

Google, Inc. hosts Blogger.com whichis a popular blogging website and Googleis often named as a respondent in CPLR3102(c) proceedings. In these CPLR3102(c) proceedings Google takes theposition that it is up to “those people [thebloggers] to come in and protect their owninterests”3. Google has no reason to con-test the CPLR 3102(c) proceedings as it isprotected from any claims of defamationby the Communications Decency Act, 47USC §230. In Zeran v. America Online4,

the plaintiff attempted to holdAmerica Online responsible forthe postings of an anonymoususer. The court held that theCommunications Decency Actcreated “federal immunity”from any such suit and that theAct “precludes courts fromentertaining claims that wouldplace a computer serviceprovider in a publisher’s role.”

Therefore, if the bloggers wish toremain anonymous, they must seek tointervene in the CPLR 3102(c) and defendtheir anonymity, all while remaininganonymous. In Greenbaum v. Google5 thepetitioner claimed she was defamed by ananonymous blogger known as Orthomomand by anonymous commentators whoposted statements on the blog. Petitionerbrought a CPLR 3102(c) proceeding tocompel Google to provide “data identify-ing Orthomom and the anonymous com-mentators.” The court, on its own motion,ordered that Orthomom be given notice ofthe proceeding. Orthomom then appearedand made a motion to dismiss citing a vari-ety of arguments including the right toanonymous speech and a claim that theallegedly defamatory statements were pro-tected as opinion. The court noted thatthere were no appellate decisions in NewYork regarding CPLR 3102(c) proceed-ings in which the identity of an anonymousblogger was sought. The court dismissedthe petition on the threshold issue ofwhether the statements in question weredefamatory holding that the statementswere statements of opinion and not factand therefore were not actionable. Thecourt never got to the point of weighingthe right to sue against the right to anony-mous speech.

In Ottinger v. Journal News6 the peti-

tioners sought the identity of anindividual who had posted state-ments on a blog hosted by theNew York Journal News. Thecourt noted Greenbaum but foundthat it did not set a standard as towhat test should be applied. Thecourt then adopted a four part testdeveloped by the Superior Courtof New Jersey, Appellate

Division7 that specificallyaddresses the right to anonymous speech.Under this test: 1) reasonable steps mustbe taken to notify the blogger of the pro-ceeding; 2) the petitioner is required to setout the exact statements allegedly made bythe blogger; 3) the petitioner must makeout a prima facie case of defamation; and4) the court must determine that thestrength of the petitioner’s claims out-weighs the blogger’s right to anonymousfree speech. In Ottinger, the anonymousblogger never appeared and the courtfound in favor of the Ottingers. Once theblogger was identified the Ottingersbrought a plenary action against him fordefamation. The defamation action ispending8.

In Admission Consultants Inc. v.Google9 the court did not apply the stan-dard set out in Ottinger and did not addressthe right to anonymous speech. Instead,the court simply applied the well-settledstandard typically applied in CPLR3102(c) proceedings which requires that“the moving party must first show that it‘has a meritorious cause of action and thatthe information being sought is materialand necessary to the actionable wrong.’Liberty Imports, Inc. v. Bourguet, et al.,146 AD2d 535, 536 (1989).” Despiteapplying a much less stringent standardthen the one set out in Ottinger, the courtdismissed the petition holding that the

petitioner had failed to show it had a mer-itorious cause of action.

In Cohen v. Google10, a CPLR 3102(c)proceeding currently pending in NewYork County, fashion model LiskulaCohen seeks to compel Google to identifythe blogger who created the blog“skanksnyc” which featured a variety ofunflattering and allegedly defamatoryentries regarding Ms. Cohen. The peti-tioner moved by order to show cause tocompel Google to identify the blogger cit-ing the standard set out in AdmissionConsultants, Inc. and not the higher stan-dard set out in Ottinger. The blogger hasappeared, anonymously, and is contestingthe proceeding. The outcome of the pro-ceeding will likely hinge on what standardthe court chooses to apply. Whatever thelower court decides it appears that Cohenhas the potential to yield the first appellatedecision in New York regarding theunmasking of anonymous bloggers.

Note: Glen P. Warmuth has been work-ing at Stim & Warmuth, P.C. for over 20years and teaches a number of courses atDowling College including Entertainment& Media Law. He can be contacted [email protected].

1 http://www.merriam-webster.com/dictionary/blog2 McIntyre v. Ohio Elections Comm'n, 514 U.S.

334 (1995)3 Greenbaum v. Google, 18 Misc.3d 185 (Sup.

Ct. NY Cty. 2007)4 129 F.3d 327 (4th Cir. 1997)5 18 Misc.3d 185 (Sup. Ct. NY Cty. 2007)6 Supreme Court, Westchester County, Index No

03892/2008.7 Dendrite International v. Doe, (775 A.2d 756

[2001])8 Supreme Court, Westchester County, Index No

16429/20089 N.Y.L.J. 12/8/08, p.18, col.2 (N.Y.Cty Index

No.115190/07, Cahn, J).10 Supreme Court, New York County, Index No.

100012/2009

Anonymous Bloggers, Defamation and Pre-Action Disclosure

Glen F. Warmuth


______________________

By Ilene Sherwyn Cooper

Attorney Resignations The following attorneys, who are in

good standing, with no complaints orcharges pending against them, have vol-untarily resigned from the practice of lawin the State of New York:

Richard AkelMarisa MacInnes AlleyEdward L. Anderson IIPeter C. BennettSusan M. BerkowitzEric CarlsonDonna Lou Carrier-TaiRichard F. CheslofskaDavid R. ChipmanDonald S. CohenRichard Daniel CorcoranNick F. De MartinoJames W. DonnellyRichard A. EpsteinKevin M. FieldsBradford A. FullerEugene I. GessowRobert T. GuinanMatthew Breen HaireDiana Fantano HoffmanAdrienne D. Jappe

Sebastian A. JerezTerri Len JohnsonStanley H. KaufmanRobert E. KellyGretchen Hollar KirkmanPaul J. KoivuniemiLeonard A. LampertVittorio S. LaPiraShari Lynn LoPrestiLeifur MagnussonCraig S. MalinaJane Sanders MarksonChristopher J. MatareseDaniel C. MooneyRobert T. PlevyJay M. PreserNathaniel R. PufferJames Anthony RiceLeonard H. RubinNancy Newport SmithGerard William StagnatoAndrea Lynne ThompsonHoward Vogel

Attorney Reinstatements Granted The application by the following attor-

neys for reinstatement was granted:

Arthur E. Jackman, Jr.Frank Sheehan

Attorney Resignations/Grievance Com-mitteeInvestigation Pending:

The following attorneys, whoare currently the subject of aninvestigation by the GrievanceCommittee, have voluntarilytendered their resignation:

Andrew J. Nitzberg: Mr.Nitzberg acknowledged that hewas the subject of an ongoing

investigation by the GrievanceCommittee and that charges of his pro-fessional misconduct would be prosecut-ed against him based upon allegationsthat he breached his fiduciary dutyregarding the maintenance of clientescrow funds. Mr. Nitzberg acknowl-edged that he would be unable to suc-cessfully defend himself on the meritsagainst any disciplinary charges whichmight be brought against him. In addi-tion, he acknowledged that his resigna-tion was freely and voluntarily tenderedand that he was fully aware of the impli-cations of submitting his resignation.Further, he acknowledged that his resig-nation was subject to an order directingthat he make restitution and reimburse

the Lawyers' Fund for Client Protection.In view of the foregoing, Mr. Nitzberg’sresignation was accepted and he was dis-barred from the practice of law in theState of New York.

Jane Posner: Ms. Posner acknowl-edged that she was the subject of anongoing investigation by the GrievanceCommittee and that charges of her pro-fessional misconduct would be prosecut-ed against her based upon allegationsregarding conversion of client and thirdparty funds in her attorney trust account.Ms. Posner acknowledged that shewould be unable to successfully defendherself on the merits against any disci-plinary charges which might be broughtagainst her. In addition, she acknowl-edged that her resignation was freely andvoluntarily tendered and that she wasfully aware of the implications of sub-mitting her resignation. Further, sheacknowledged that her resignation wassubject to an order directing that shemake restitution and reimburse theLawyers' Fund for Client Protection. Inview of the foregoing, Ms. Posner’s res-ignation was accepted and she was dis-

COURT NOTES

ENTERTAINMENT & MEDIA LAW

Ilene S. Cooper

Appellate Division Second Department

(Continmued on page 23)

_______________By Rhoda Selvin

Suffolk County attorneys will soon, andoften, hear from Linda Raphan, Esq., whojoined the legal staff of Nassau/SuffolkLaw Services on June 1, 2009 as the ProBono Coordinator/Recruiter. She will beworking directly with Miriam Pismeny,Managing Attorney of the Pro BonoProject’s panel. Together, they will bereaching out to our legal community in aneffort to address the unmet needs of theindigent, who continue to experience an

inordinate delay in accessing legal services.In fact, it might surprise you, that the pro-ject has a five year waiting list for plaintiffshoping to commence a divorce action inthis county. The immediate focus of the ProBono Coordinator will be in the areas ofmatrimonial and legal guardianship.

It was through the efforts of SuffolkCounty’s District Administrative JudgeH. Patrick III and the local Pro BonoAction Committee that Nassau/SuffolkLaw Services was able to secure the fund-ing for the newly created position of Pro

Bono Coordinator. Ms. Raphan is a member of the Suffolk

County Bar and was recently appointedto the Board of the Pro Bono Foundation.She was admitted to the bar in 1985, hav-ing received a Bachelor of Arts degreefrom the State University of New York atBuffalo in 1980 and a Juris Doctoratefrom Southwestern School of Law in LosAngeles in 1984. Ms. Raphan had been apartner in a small law firm, and in recentyears, her services at the VolunteerLawyer’s Project extended to mentoringless experienced attorneys.

Our county’s new Pro BonoCoordinator has an ambitious agenda --she plans to contact every lawyer inSuffolk County. Sensitive to every practi-tioner’s time and financial limitations, sheis committed to working with each volun-teer attorney to design a plan that willallow them to contribute to pro bonowork. She would like to be viewed as "thego to" person when questions arise froman assigned case.

Now more than ever, pro bono workhas been a collaborative effort of thebench, the bar, the court administrationand the law schools. Suffolk County hasbeen a leader in pro bono efforts for overtwo decades. Barry Smolowitz, a pastpresident of the Suffolk County BarAssociation, asserts, "There is no doubt.

With Ms. Raphan coming on board,Suffolk County will continue to be aleader in its pro bono efforts throughoutthe state. I encourage my colleagues ofthe bar to join in our efforts."

New Pro Bono Coordinator/Recruiter Begins Work

Linda Raphan


Articles Wanted for:Date Special Section Editor2009September Real Property Jeannie DaalOctober Commercial Litigation Leo K. Barnes, Jr.November ADR Lisa Renee PomerantzDecember Tax Eric Morgenthal_______________________________________________________________

2010January Matrimonial Arthur ShulmanFebruary Animal Law Amy ChaitoffMarch Elder David OkrentApril Education Christopher GattoMay Workers Compensation Dennis ChaseJune Women & the Law Alison Arden Besunder

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

Our county’s new ProBono Coordinator has anambitious agenda sheplans to contact everylawyer in Suffolk County.

“

”

PRO BONO


____________________

By Sarah Jane LaCova

The Suffolk County JudicialCommittee on Women in the Courts pre-sented celebrated women on June 12,2009 at the First Ladies of New YorkArt Exhibit and Reception. Followingthe presentation of the Colors by theNYS Courts Color Guard, Karen Shukersang the National Anthem. Lynn C.Fullshire, Suffolk County Women in theCourts Committee Co-Chair, opened theevening by sharing a few remarks fol-lowed by some of the members of thecommittee who reported on the follow-ing women who were honored: Hon.Judith S. Kaye, first woman appointed tothe New York State Court of Appeals;Hon. A. Gail Prudenti, first womanPresiding Justice, Appellate Division,Second Judicial Department; Hon. RuthBader Ginsburg, first NYS womanappointed to the U.S. Supreme Court;Hon. Jane M. Bolin, first African-American woman judge in both NYState and the United States; Hon. BirdieAmsterdam, first woman elected to NewYork State Supreme Court; Hon. Syrena

Stackpole, first woman elected to publicoffice in New York State; CharlotteSmallwood, Esq., first woman DistrictAttorney elected in New York State andKate Stoneman, Esq., first woman topass the New York State Bar.

Ms. Smallwood spoke describing her-self as a “26 year old country girl” whenfirst elected District Attorney ofWyoming County. She regaled the audi-ence with stories about her election andtenure when she tried her first murdercase in her county in 40 years and suc-cessfully argued the appeal of this deathpenalty case before the Court of Appealsin 1953 In 1999, Governor George Patakirecognized her historical accomplish-ments as a “Woman of Distinction.”

Acting County Court Judge Gaetan B.Lozito narrated an essay “Without YouThere Would Be No “Us” andAdministrative Judge H. Patrick Leis IIIrecognized the honorees, giving a spe-cial “thank you” to our Presiding JusticeA. Gail Prudenti who attended the cele-bration. Martha M. Rogers, Esq. co-chair of the committee gave the closingremarks.

Honoring First Ladies in

the Legal Profession

Hon. H. Patrick Leis, III, left, Charlotte Smallwood, Presiding Justice A. Gail Prudenti andActing County Court Judge Gaetan B. Lozito at the First Ladies of New York Art Exhibitand Reception.

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_________________

By Dennis R. Chase

And, oh, how we’ve missedyou. I am the first to admitMirabelle holds a very specialplace in my heart (and the heartof my lovely wife, Sheri, aswell). Following our marriageceremony on the beach of asmall private island off the coastof Antigua, over seven yearsago, we invited 25 of our closestfriends and family members to Mirabelle tocelebrate our nuptials. This may have beenthe very first time I heard guests ravingabout the wedding food. As always withMirabelle, down to the very smallest detail,the meal was absolute perfection.

Mirabelle reopened a few weeks ago attheir new location (inside the historicThree Village Inn in Stony Brook) in amagnificent room with beautifully lushdecor (including a very romanticfireplace), crisp white linen tablecloths,and only the finest china. Not unlikeMirabelle’s original location in St. James,the diner still feels as though they arebeing welcomed to the dining room of avery dear (and rich) friend’s home. Theroom is elegantly lit with classic wallsconces and filled with delightful dinnermusic. Inasmuch as Chef Guy Reuge hasbeen offering Long Islanders only thefinest dining experience for over 25 years,it comes as no surprise that Guy knowshow to do things not only right, but toperfection. When Zagat first published

their suburban guide in the1980’s, Mirabelle was awarded arating of 27/23/25 (on a 30 pointscale for food, décor, andservice) and enticed readers withthe comment, “not widelyknown, but the few who know itwant to keep it a secret.”

Our first dining experience atthe newly reopened Mirabellebegan with a quite delectable andauspicious start in what staff

described as a treat from the Chef, aseafood sausage comprised of anunbelievable combination of only thefreshest halibut, salmon, scallop, shrimp,and lobster served with pickled cucumber,greens and olive oil . . . the combination ofwhich could best be described as simplyscrumptious. This was closely followedby the crustiest sour dough bread this sideof heaven with sweet butter fashioned bythe West Creek Farms Creamery. Try as Imay, I simply cannot locate a distributorfor this wonderful butter, however, aftermuch inquiry regarding this dairy delight,the staff was kind enough to not onlyprovide me with the name of the creamery,but to send my guests home with a fairlygenerous sampling, to be enjoyed thefollowing morning on freshly baked rolls.

Appetizers were amazing and beganwith a heavenly tomato tartlet served withsour cream, basil scented oil, and friedbasil. The tartlet’s crust was light, flakey,and most importantly, buttery. Thetomato, although clearly out of season on

Long Island, possessed that just pickedtaste and freshness. The pan roasted foiegras au gout du jour (taste of the day) wasexcellence exemplified. When tasting thefoie gras for the very first time, a fellowdiner described this delicacy as fattygoodness. Need I say more? The fieldgreens salad with simple vinaigrette andgoat cheese was anything but simple. Arich, crispy array of carefully selectedgreens was well complemented by themost precise blend of olive oil andbalsamic vinegar one could imagine.While the pan roasted foie gras may havebeen the shining star among the appetizers,this was very closely followed by the ril-lettes of duck and foie gras, toastedbrioche, and miniature salad. Duck, whenprepared well (and Mirabelle has becomesynonymous with perfect duck presenta-tion) combined the best of all worlds, fowl,foie gras, toasted bread, and only the fresh-est of field greens.

Ordinarily, the vegetarian entrée is noth-ing but a mere afterthought, not unlike the

vegetables served with a steak. Nothing atMirabelle, however, is an afterthought.Every part of every meal is flawless andthis sumptuous and decidedly perfect dishcertainly did not veer at all from ChefReuge’s high standards. The PapetonProvencal vegetable served with a tantaliz-ing saffron aioli basil pesto, and toastedtomato basil bread was amazing enough tomake even the most carnivorous dinersamong us salivate. Not that the carnivoreswere disappointed, however, with the panroasted Painted Hills Farm beef filletboasting a flavorful morel mushroom andPort sauce, served with leek potato cream,and potato millefeuille (translated as athousand leaves). This incredibly deli-cious, dry aged beef fillet, organicallygrown, was tender beyond all compare.But, back to the wonderfully prepared duck. . . the duck Mirabelle served in two equal-ly pleasing courses included a seared breastof duck with fava and coco bean ragout,and shallot cassis marmalade followed by a

Mirabelle... We’re Ever So Glad You’re Back!

RESTAURANT REVIEW

Dennis R. Chase

MIRABELLE

Maria & Guy Reuge, owners150 Main StreetStony Brook, NY 11790631-584-5999

Email: [email protected]


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“An animal's eyes have the power tospeak a great language.” ~Martin Buber_________________By Amy L. Chaitoff

Dogs, cats, parrots, chinchillas, rabbitsand a poker playing Yorkie, were justsome of the guests in attendance at theSCBA Animal Law Committee’s firstannual “Dog Day Afternoon Agility Expoand Pet Fair” this past Sunday May 31st atDoggie “U” K9 Academy in Bay Shore.The 13,000 square foot facility trans-formed into a menagerie with over 20 ani-

mal rescue groups participating in the funand educating the community on how ani-mals assist people everyday, the legalissues affecting animals and the peoplewho care for them and the importance oftreating animals humanly. Some of thegroups in attendance included GratefulGreyhounds, Monty’s Place ChinchillaRescue and Refuge, Project Sage HorseRescue Inc., Long Island Parrot Society ofNew York, A Home at Last; the list goeson and on. Walk 97.5 FM Radio K.T.Mills generously promoted the event onher radio show every day several timesthroughout her program and acted as MC

for several hours announcing the agilitydemonstrations and the over 12 presentersthat educated and entertained the publicthroughout the day.

Presenters included Canine Companionsfor Independence, Suffolk County PoliceDepartment K9 Unit Demonstration, GuideDog Foundation for the Blind, K9 SARCERT Demonstration, Suffolk CountySheriff’s Office K9 Unit, Doggie “U” K9Academy and many more. A few of thepresentations included, the Guide DogFoundation and Canine Companions forIndependence who taught spectators how

animals assist people with disabilities of allkinds, including physical and emotionaldisabilities, and help them live full, inde-pendent lives. The Animal LawCommittee educated attendees on the cru-elty laws protecting animals in New YorkState. Monty’s Place Chinchilla Rescueand Refuge, Long Island Parrot Society ofNew York, and Long Island Rabbit Rescueeducated the public on how to care forthese delicate beautiful animals and how topick the right pet to compliment a person’slifestyle. For even more fun, the “AmazingJilli Dog,” the world’s only poker playingdog and her guardian Rick Caran, as seen

on Animal Planet and in newspapers andmagazines all over the world, also madeappearances throughout the day. Jilli Dogwowed the audience as she picked outplaying cards and placed bets and won afew hands of poker. She even grabbed tis-sues for her guardian or audience membersif they sneezed. Vendors sold everythingfrom designer dog collars, clothes, and toysto gourmet organic dog treats and specialorder cookies and birthday cakes for thatspecial dog, cat or horse in your life.Student volunteers from St. John theBaptist painted children’s faces of all agesas dogs, cats, tigers etc., and well knownand loved child magician and balloonartist, Amazin Jess, created balloon ani-mals and Disney characters for the kids.

The Animal Law Committee organizedthis educational and fund raising event inorder to further its mission of educatingfellow attorneys and the public on animalrelated legal issues, humane education, aswell as contemporary issues effecting ani-mals and the people who love them. Thegroup raised over four thousand dollars tobe earmarked for the committee’s futureCLE programs, public outreach andhumane education efforts. Members want-ed to make this a fun interactive eventwhere members of the Bar Association aswell as the public could learn about theSuffolk County Bar Association’s AnimalLaw Committee and learn about the manyanimals we share our lives with, their care,and the important legal and welfare issueseffecting animals, with the added bonus ofenjoying an exciting dog agility event andhopefully finding some homeless animalssome forever families.

Generous sponsors included Compu-geeks, Schroder & Strom LLP, Pet PeevesInc., Land Baron Abstract Co. Inc.,Lidogdirectory.com, and South ShoreFinancial Service, LLC, among others.Raffle prizes included a Net Book, 4 boxseats at a Yankee game, a Nano IPOD,digital camera, and LI Ducks autographedbaseball and more. Rescue groups werealso able to share their message of kind-ness and respect to all animals, choosingthe right pet for families, the importance ofspaying and neutering, and the great needfor adoption. Several rescue groups were

able to match homeless and abused ani-mals with loving families that will givethem a forever home. Below is one suchtestimony from A Home at Last Rescue.

The members of the Animal LawCommittee all pulled together and put inmany hours to make this event such a greatsuccess. The members are grateful for theoutpouring of emails received from fellowBar Association members saying howexcited they were about the event andapplauding the efforts.

SCBA members or their friends interest-ed in sponsoring the Animal LawCommittee’s public outreach and humaneeducation efforts, or wanting to sponsor anannual event next year, or interest in mem-bership of the Animal Law Committeeshould contact Amy Chaitoff at (631) 265-0155 or email [email protected].

Note: Amy L. Chaitoff is a solo practitionerwith an office located in Smithtown that sheopened in 2006. She offers a full servicelaw firm, however her practice focuses onrepresenting clients with animal relatedlegal matters including non-profit organi-zations and municipalities. Amy co-foundedthe Animal Law Committee in 2007 alongwith co-founder and mentor Jim Gesualdiand co-chaired the committee in 2007 andserves as its current chair assisted by KarenStrom, Esq. She is Vice Chair of the NewYork State Bar Association's Animal LawCommittee, and Chair of the InternationalAnimal Law sub-committee for theAmerican Bar Association's Animal LawCommittee. Amy has been a guest lecturerfor the New York State Bar Association’sAnimal Law Committee, the Suffolk CountyBar Association and the League of WomenVoters.

Dogs and Friends Mark The Day

ANIMAL LAW

One of the dogs from Little Shelter avail-able for adoption who did not go homewith a new owner.

Amy L. Chaitoff, the chair of the SCBA Animal Rights Committee speaking at the first DogDay Afternoon Agility Expo and Pet Fair.

____________________

By Eric L. Morgenthal

Have any of your small business clientsever hoped and prayed for a really badday, a day when no one comes to theirstore or place of business? Not a singlecustomer. Chances are if they have, thenthey were likely undergoing a Sales Taxobservation audit by the New York StateTax Department.

Everyone seems to have heard aboutthese audits. They imagine two auditors insuits sitting in a Ford sedan discreetlycounting pizza boxes as the customers leavethe restaurant. Has this happened before?Sure, but it’s a bit more complicated thanthat and the results span long past that day.

Adequacy of RecordsPursuant to the NYS Tax

Law, taxpayer’s are required tomaintain records of every salethey’ve conducted during theaudit period.1 The auditor mustrequest them and in turn theymust be provided. It becomesa shock to clients when theyare informed that they didn’tmaintain the records requiredby NYS Tax Regulations. The conse-quences that result can be harsh.

Business records serve as the initialline of demarcation. In the absence ofadequate books and records, the TaxDepartment can then utilize any or many

of several estimated audit tech-niques to establish the tax due.2Once the records are deemedinadequate, the burden is shiftedto the taxpayer to now disprovethe auditor’s determinations.Pursuant to the NYS TaxRegulations, the Tax Departmentmay use “any information avail-able,” even if not derived fromthe taxpayer’s place of business.

Mark-ups, error-rates or external indicescan then be utilized as the basis for anassessment. By the way, the methoddoesn’t have to be perfect or even the bestof the methods available.3 The statuteonly requires that the methodology used

to arrive at it be reasonable. Perhaps the most highly contested

method is the observation audit. Duringthese audits, tax field auditors observeone or two days of sales activity at thebusiness premises. The audit results arethen extrapolated (sometimes through theapplication of an error rate) and then pro-jected throughout the audit period. Thisis where it starts to get ugly. Take arestaurant on the east-end of Long Islandobserved in summer or a luncheonettelocated in a business district observedmid-week and the projected results aren’tpleasant. The auditor may provide a“concession” or an “allowance” for thosefactors but they oftentimes fail to com-

Pitfalls of a Sales Tax Observation Audit

TAX LAW

Eric L. Morgenthal


___________________By Robert M. Harper

For most practitioners, the cy pres doc-trine is an abstract legal theory that isglossed over in law school and long for-gotten upon entering practice. However,given two recent decisions of theSurrogate’s Courts in Kings and NassauCounties, the doctrine is worth yet anoth-er look. This article discusses the doc-trine generally and its recent applicationin Surrogate’s Courts.

The common law cy pres doctrine iscodified in section 8-1.1 of the Estates,Powers and Trusts Law (“EPTL”). Thethrust of the doctrine is that a court has aduty to effectuate “the general charitableintention of [a] testator as nearly as pos-sible, when the subsidiary intent that agift take effect in a particular manner isimpossible to implement.” In otherwords, the doctrine allows a court to savea testator’s gift when his or her statedintent is impossible to implement, but thegeneral charitable purpose can still besatisfied.

Pursuant to EPTL section 8-1.1, acourt can “direct the manner in which acharitable disposition is to be adminis-tered in order to accomplish the testator’sintent when the terms of a charitablebequest become impracticable or impos-sible.” To do so, the court must concludethat: (1) “the gift or trust is charitable innature;” (2) “the donor demonstrated ageneral rather than a specific charitableintent;” and (3) “the particular purposefor which the gift was created has failedor become impossible to achieve[.]”

The recent decision of Kings CountySurrogate Diana A. Johnson in Matter ofDowdall is illustrative. There, the dece-dent’s will was admitted to probate in1969. While Article Fourh of the will con-tained specific bequests to several charitiesoperating under the auspices of the Roman

Catholic Diocese of Brooklyn(the “Diocese”), Article Fifth ofthe will directed that the dece-dent’s residuary estate be used tofund a trust for the benefit of theCatholic Child Care Society ofthe Diocese of Brooklyn(“Catholic Child Care Society”).

At the time of the will’sadmission to probate, theCatholic Child Care Societyoperated the St. John’s Residence for Boys(“St. John’s Residence”) and St. Joseph’sChildren’s Services programs. Althoughthe St. John’s Residence was separatelyincorporated in 1995, it remained affiliatedwith the Catholic Child Care Society untilthe Catholic Child Care Society stoppedoperating in 2001. After it terminated itsoperations, the Catholic Child CareSociety petitioned the Surrogate’s Court,Kings County, to modify the decedent’swill to designate the St. John’s Residenceas the beneficiary of the testamentary trustcreated under Article Fifth of the dece-dent’s will.

Upon considering the parties’ con-tentions, the Surrogate’s Court grantedthe relief requested in the petition. Thecourt reasoned that the decedent had ageneral intent to benefit organizationsassociated with the Diocese in providingservices to children. The court alsoexplained that the decedent had a gener-al charitable intent, as evidenced by thebequests to the Diocese’s charitable enti-ties in her will. Those factors, whentaken in conjunction with the fact that thepurpose of the residuary trust failedbecause the Catholic Child Care Societyno longer existed, necessitated the modi-fication of the decedent’s will to reflectthe St. John’s Residence as the beneficia-ry of the trust created under Article Fifthof the will.

Conversely, in yet another noteworthy

decision, Matter of HuntingdonCollege, Nassau CountySurrogate John B. Riordanrecently denied HuntingdonCollege’s (the “College”) peti-tion to amend an inter vivos trustinstrument pursuant to EPTL sec-tion 8-1.1. In HuntingdonCollege, the grantor created a“charitable remainder unitrust” inDecember 1995, designating the

Huntingdon College (the “College”)“Endowment Fund” as one of the trust’sremainder beneficiaries. Following thegrantor’s death, the college petitioned theSurrogate’s Court, Nassau County, tohave the trust instrument amended to“provide that the funds in question bepaid to the [C]ollege’s Annual Fund andutilized for scholarships, without anyrestriction.” The bases for the petitionwere the facts that the college did nothave an “Endowment Fund” – although itdid have another endowment-like fund –

and that the grantor intended to make an“unrestricted gift” to the college.

The court first addressed whether it hadjurisdiction to consider the college’s peti-tion. Although EPTL section 8-1.1(c)“limits [the] jurisdiction of theSurrogate’s Court to dispositions under awill probated in the court[,]” section209(6) of the Surrogate’s CourtProcedure Act (“SCPA”) vests theSurrogate’s Court with jurisdiction to“determine all matters relating to intervivos trusts . . . . ” Additionally, section2(d) of the New York State Constitution“confers jurisdiction on the Surrogate’sCourt as to all matters relating to theaffairs of a decedent.” Based upon SCPAsection 209(6) and section 2(d) of theState Constitution, the court noted thatthe matter concerned an inter vivos trust,and concluded that it had jurisdiction toentertain the college’s petition to amendthe subject instrument.


_____________By Cecilia Alers

There are literally tons of networking events to attend,too many actually - too many ways to meet people you’llnever see again, too many opportunities to collect a stackof business cards you’ll never look at again, etc. But net-working is not a contest and it’s not about schmoozing.The reason you go to those events is because it’s one ofthe best possible ways to promote yourself and your busi-ness. The problem is, most people don’t know “how to”network effectively.

Here are a few tips to help you do it like a pro.

• Start conversations everywhere — Go out of yourway to get into conversations with everyone you can,in person, on the phone, or via e-mail. Cross the street,cross the room, cross the train to talk to someone.Anything can come out of a simple conversation:ideas, alliances, connections, referrals, new business,etc.

• Make contact, not contacts. — The goal of network-ing is not to meet as many people as possible as fast aspossible. The goal is to find a business community thatsatisfies your needs; one that brings together peoplewho are your prospects and with whom you are com-fortable. Meet as many people as you can, but if a con-

versation is going well, stay with it. If you rush awaytoo quickly, you will lose an opportunity to connect.

• Be a good listener. — Don’t be worried about whatyou’re going to say. You don’t need to perform yoursales pitch, just have your blurbs ready to use as a toolto engage people in conversation. Do more listeningthan talking, and ask a lot of questions, then, respondto what you hear.

• Arrive early. — If you wait until most of the attendeesare already there, many of them will be in conversa-tions and it won’t be as easy to break in.

• Never sit with someone you know. — Attend an eventwith a friend, but put on your name tags and then sep-arate at the door. Otherwise, you will never meet any-one new.

• Look for wallflowers. — Instead of trying to break intoconversations that are already going on, find someonesitting or standing alone and simply introduce yourself.Do it even if they don’t look like they want to beapproached. The apparent standoffishness may be acover for their discomfort.

• Be random about where you sit. — You can’t tell byhow someone looks what will come out of a conversa-

tion with them. Don’t judge.

• Make notes about the people you meet. — Everytime someone gives you a card, make a point of writ-ing a note on the back while you’re still talking. Thiswill not only flatter, but you will have a much betterchance of remembering what you talked about so thatyou can follow up in a more personal way.

• Wear a jacket with pockets. — Keep your businesscards and a pen in the left pocket and put any cards youget into the right pocket. That way, you won’t be fum-bling with cards or accidentally hand a new contactsomeone else’s card.

• Practice makes perfect. — The more times you “net-work,” the easier it will become. Networking does nothave to be a formal event. Networking can take place onthe soccer field, in the grocery store and at the play-ground. The other parents and patrons are business peo-ple too!

Note: Cecilia Alers is President of Cecilia AlersConsulting, LLC an award winning Marketing andPublic Relations firm concentrating in law firm market-ing. She can be reached by phone at (516) 680-0219, byemail at [email protected] and view sam-ples of her work at AlersConsulting.com.

Networking 101 for Lawyers: How to “Work” A Room

BUSINESS TIPS

Cy Pres and Charitable Gifts

TRUSTS & ESTATES

Robert M. Harper



_________________

By Craig D. Robins

If you’re a regular bankruptcy practi-tioner, this will sound all too familiar.You file a routine Chapter 7 bankruptcypetition, the case goes unremarkably, thedebtor gets a discharge, and then the caseis closed.

Then, sometime thereafter – it couldbe days, months or years – the debtorcalls to say that he or she inadvertentlyomitted a creditor. The anxious clientexplains that this failure was an innocentmistake.

Counsel might then instinctively think,“No problem.” The case can be reopenedby motion, and an application can bebrought to amend the schedule of credi-tors to include the omitted one, right?

Confusing Case Law Has MadeResolving this Issue Difficult

But, not so fast. There have been agreat number of cases on this issue, withwidely differing theories and conclu-sions. Some have held that you can re-open, and some have held that you can’t.

Some bankruptcy courts routinely grantdebtors' motions to amend schedules tolist previously omitted creditors. Oneline of cases focuses on whether there isprejudice to creditors or whether therewas fraud.

Some courts will refuse to permit thecase to be reopened because they believeomitted debts are non-dischargeable. Yetother courts will refuse to permit the caseto be reopened because they believe thatomitted debts are automatically dis-charged even if they are not listed, andtherefore reopening the case serves nopurpose.

Even in our own jurisdiction, I haveseen different judges over the years havedifferent policies with this issue.Understandably, there has been a gooddeal of confusion as to the appropriateremedy dealing with the problem of theomitted creditor.

So what is the Long Island bankruptcylawyer to do?

Recent Case Provides SomeGuidance

In April, Brooklyn Bankruptcy CourtJudge Dennis E. Milton addressed thisissue in the case of In re: Coppola (96-21661). Although the decision containeda nice discussion of the two main

approaches, it still left undeter-mined what the appropriateprotocol is in this district.

In that case, the debtor fileda motion to reopen his Chapter7 bankruptcy case for the pur-pose of amending the scheduleof creditors. He did this over11 years after he filed his peti-tion. The debtor hoped toinclude a debt owed to his for-mer business partner.

The court, however, after conducting atrial, determined that the debtor was not acredible witness and that the debtor’s fail-ure to disclose the debt was either theresult of recklessness or intentionaldesign. Because of that, and the signifi-cant delay, Judge Milton denied the appli-cation.

Equitable Approach vs. MechanicalApproach

Judge Milton stated that in decidingmotions to reopen bankruptcy caseswhere the debtor has failed to disclose acreditor on his schedules, courts havedeveloped two approaches.

Under the “mechanical approach”courts have denied motions to reopen no-asset cases, finding that the debt owed toan omitted creditor is discharged “as amatter of law.” Under this approach,there is no reason to reopen a bankruptcycase, provided that it is a no-asset caseand the debt is not otherwise exceptedfrom discharge.

Based on my own familiarity withcases here, I would say that prior to thisdecision most judges in the Central IslipBankruptcy Court utilized this approach.

Judge Milton then explained that underthe “equitable approach,” courts considerwhether the debtor’s omission was theresult of fraud, recklessness or intention-al design, or if it would prejudice thecreditor’s rights. Good faith is an impor-tant element. Courts adopting thisapproach have held that motions toreopen no-asset cases to list omitted cred-itors should be liberally granted.

Judge Milton did not use the mechani-cal approach, and instead relied upon theequitable approach. He did so becausethe facts of the case (the debtor’s badfaith) would have produced an unfairresult by permitting the debt to be dis-charged under the mechanical approach.

The judge found the debtor lacked

good faith as it appeared thedebtor had known about thedebt for years, but neglectedto amend earlier. It alsoappeared that the debtor liedabout this knowledge at trial.The court also found that thelength of time that elapsedbetween the filing of the peti-tion and the request to reopenthe case also suggested bad

faith and prejudiced the debtor.

Practical TipsFor most garden variety situations

where the debtor omits a typical creditcard debt and advises the attorney with-in a few years, the courts here will prob-ably be unwilling to permit counsel toreopen the case to add the creditor,asserting that, under the mechanicalapproach, the debt is dischargeable. Insuch cases, consider sending a certified

letter to the creditor stating that the debthas been discharged, together withcopies of the notice of commencementand order of discharge.

However, in situations where the cred-itor raises objections to this approach, beprepared to file a motion to reopen, inwhich case the court will probably con-sider the various factors in the equitableapproach.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast twenty years. He has offices inPatchogue, Commack, Woodbury andValley Stream. (516) 496-0800. He can bereached at [email protected] visit his Bankruptcy Website:www.BankruptcyCanHelp.com and hisBankruptcy Blog: www.LongIslandBankruptcyBlog.com.

The Inadvertently-Omitted Creditor in Chapter 7

CONSUMER BANKRUPTCY

Craig D. Robins

Information for Support Staff…

SCC Paralegal Program Recommended forRe-Accreditation by ABA

The Paralegal Studies Program atSuffolk County Community Collegerecently completed the rigorousprocess of American Bar Associationre-accreditation and can report that theABA site-visit team was impressed bythe college, program, course offerings,resources, students, and faculty andrecommended accreditation for thenext seven years.

The mission of the American BarAssociation’s Standing Committee onParalegals is to “improve the Americansystem of justice by establishing ABAstandards for the education of parale-gals and by promoting attorneys' pro-fessional, effective and ethical utiliza-tion of paralegals.” /www.abanet.org/legalservices/paralegals/

Students who are interested inenrolling in a Paralegal Studies coursewill soon realize that there are manyprograms of study but most programsare not American Bar Associationaccredited. A program that is ABAaccredited is indeed recognized assuperior and this raises the bar in termsof education and employment prepara-tion for students who complete courserequirements in this rigorous curricu-lum.

The process of attaining ABAaccreditation is a long one and includesextensive program assessment focus-ing on curriculum, administration, pro-gram goals, faculty, student services,library and other resources. Onceaccredited, a program needs to be re-evaluated every seven years as part ofthe re-accreditation process. In theinterim, the college/program needs tosubmit timely reports and periodicupdates to the ABA.

At Suffolk, the re-accreditationprocess began with the submission ofan extensive assessment report pre-pared by the Paralegal ProgramCoordinators, Dr. Ronald Feinberg,Esq. and Professor John Ammerman,Esq. and ultimately commenced with

an ABA site visit this past March 3 and4 (in the mist of that horrible earlyMarch snow storm). The ABA siteteam included Laura Bernard, Esq.ABA Approval Commission SiteTeam Chair and Director of theParalegal Program at LakelandCommunity College, and BruceHamm, J.D., Director of Legal Studies,Recruitment and Outreach atUniversity College of SyracuseUniversity. The site visit includedtours of both the Ammerman andGrant Campuses (including a carefulreview of facilities including class-room and library resources), classroomobservations, and meetings withadministrators, faculty, and students.

Upon making its recommendationthat the Suffolk Paralegal Studies pro-gram be reapproved, the site visit teamconcluded that “The Paralegal StudiesProgram at Suffolk County Commu-nity College is a well-established pro-gram with satisfied students and grad-uates. It enjoys an excellent reputationin the community.” (Site Visit Report,page 18.)

Suffolk Community College legalcourse offerings include: Introductionto Law, Introduction to ParalegalStudies, Civil Litigation, RealProperty, Trusts and Estates, LegalResearch, Corporation and PartnershipLaw, Domestic Relations, and LawOffice Management. The ParalegalStudies program is ideally suited forworking legal secretaries with eveningand morning classes convenientlyavailable. For further information con-tact: Nancy Ellis (631) 851-6432 oremail [email protected]

Submitted by:Nancy Ellis, J.D.; M.B.A.; M.A.Professor - BusinessAdministration/Business LawSuffolk County Community CollegeOfficer – Suffolk Academy of LawCo-Chair SCBA – ADR Committee

Restaurant Reviewthe leg confit, Serrano ham parcel, berrygastrique, and ragout of corn. Perfect!

Not to be challenged, Mirabelle is alsoperfect when arriving for dessert.Although the pistachio soufflé must beordered in advance, it is well worth thewait. Feather light and creamy, richlysteeped in the favor of well ripened pis-tachio nuts, this is a must for dessert.French press coffee rounds out thisincredibly well balanced meal. Thereare absolutely no screw-ups here atMirabelle, and from start to finish, theentire experience is flawless, simplyflawless. I simply cannot recommendhighly enough the dining experiencehere. Execution, presentation, delivery,

and service are beyond compare. Noone could possibly be disappointed. Toexperience Mirabelle, is to loveMirabelle . . . I promise.

Note: Dennis R. Chase is the currentTreasurer of the Suffolk County BarAssociation, a frequent contributor of TheSuffolk Lawyer, and a partner with TheChaseSensale Law Group, L.L.P. Thefirm, with offices in Suffolk, Nassau, andQueens Counties, concentrates their prac-tice in Workers’ Compensation, SocialSecurity Disability, Short/Long TermDisability, Disability Pension Claims,Accidental Death and Dismemberment,and Unemployment Insurance Benefits.

(Continued from page 11


_____________________By Christopher M. Gatto

On May 18, a case brought by aMuslim man accusing JohnAshcroft, the former attorney gen-eral, and Robert Mueller, the for-mer FBI director, of complicity inpost-9/11 abuses, was found to lacksufficient factual detail by theSupreme Court.1 While the courtexpressed no opinion about the suf-ficiency of the complaint againstother defendants, the court determined thatIqbal’s complaint against Ashcroft andMueller was simply too conclusory to pro-ceed against them.

Iqbal is important because it represents achange in the pleading requirements for allfederal civil cases. All plaintiffs in federalcourt must now allege facts that show thattheir suits are plausible on their face.

The plaintiff, Javaid Iqbal was a cabletelevision installer from Hicksville, NewYork, who was detained and held oncharges of fraud and conspiracy. Pendingtrial, he was housed at a special housing unitat the Metropolitan Detention Center inBrooklyn. He was designated a person “ofhigh interest” to the September 11 investi-gation. Iqbal eventually pleaded guilty tothe criminal charges and was deported to hisnative Pakistan. He then sued various fed-eral officials and correctional officers in theUnited States District Court for the EasternDistrict of New York (Gleeson, J.). Thedefendants ranged from the correctionalofficers who had day-to-day contact withIqbal during his confinement, to the war-dens of the correctional facility, all the wayto Ashcroft and Mueller who were at the topof the federal law enforcement hierarchy.

Iqbal challenged his treatment whileincarcerated. For example, he alleged in hiscomplaint that he was subjected to dailybody-cavity searches, beatings, and was notallowed to pray. Iqbal also alleged that heand other Arab Muslims were singled out formistreatment based on their religion andnational background. Ashcroft and Mueller,his lawsuit said, condoned and implementedthe policies that led to his abuse.

The District Court denied Ashcroft andMueller’s motion to dismiss. While anappeal to the United States Court of Appealsfor the Second Circuit was pending, theSupreme Court decided Bell Atlantic Corp.v. Twombly2 which discussed the standardfor evaluating whether a complaint is suffi-cient. The Second Circuit concluded thatTwombly required plaintiffs to allege morefactual detail only in cases where it is nec-essary to make their claims plausible.3

However, the Circuit ruled that that Iqbal’sparticular complaint did not require addi-tional facts to make his case plausible.

The Supreme Court reversed.4 JusticeKennedy’s opinion for the court (5-4) exam-ined Iqbal's allegations against Ashcroft andMueller and found that they fell short of thepleading standard required by Twombly.The court noted that, under Rule 8(a)(2), apleading must contain a “short and plainstatement of the claiming that the pleader isentitled to relief.” Citing Twombly, the courtexplained that Rule 8 does not requiredetailed factual allegations, but it demandsmore than “the defendant-unlawfully-harmed-me accusation.” In other words,conclusory allegations of fact are insuffi-

cient. To survive a motion to dis-miss, a complaint must containsufficient factual matter, acceptedas true, to “state a claim to reliefthat is plausible on its face.”

Applying the Twombly stan-dard, the court found that Iqbal’scomplaint was deficient. Iqbal’sallegations that Ashcroft andMueller implemented a policy ofsingling out Iqbal and otherMuslims for mistreatment based

on their religion and national background,were conclusory and not entitled to beassumed true. The court determined thatdiscrimination against Arabs and Muslimswas not plausible. The obvious alternativeexplanation for the government’s detainingArab and Muslim suspects in the 9/11 inves-tigation was that the 9/11 attacks were per-petrated by Arab Muslims, even though thepurpose was to target neither Arabs norMuslims. Moreover, the complaint failedto contain facts that the defendants actuallysingled out Arabs or Muslims in the investi-gation due to their religion or ethnicity.According to the court, Iqbal would need toallege more facts to “nudge” his claim ofdiscrimination “across the line from con-ceivable to plausible.”

Iqbal represents an important alteration tothe federal pleading requirements for civilcases. Traditionally, a complaint wasdeemed sufficient if it contained enoughdetail to put the defendant on notice of whatthe lawsuit concerned, no matter how bare-bones the allegations were. For instance,the model federal form for pleading negli-gence, Federal Rule of Civil ProcedureForm 11, states merely that the defendant“On date, at place, the defendant negligent-ly drove a motor vehicle against the plain-tiff.”5 Even this model form would seem tobe an impermissible conclusion under Iqbal.Interestingly, however, the Supreme Courtin Twombly cited its approval of the modelnegligence form as sufficient because itcontained the date, time, and place of theaccident.6

Although these two results may seemcontradictory, it must be noted that Iqbalwas driven at least in part by a concern forthe sprawling, costly, and time-consumingdiscovery that would ensue from Iqbal'sbare allegations. Indeed, in Iqbal, the courtstated that Rule 8 does not “unlock thedoors of discovery to a plaintiff armed withnothing more than conclusions.”7 In thewake of this case, it seems that the key tothe new pleading standard is whether theplaintiff's complaint contains enough factu-al detail for the plaintiff to justify making adefendant submit to discovery on a particu-lar theory of liability.

Note: Christopher M. Gatto is anAssistant County Attorney assigned to theGeneral Litigation Bureau of the SuffolkCounty Attorney’s Office, where he concen-trates in litigation in state and federalcourts.

1Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).2 Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127S.Ct. 1955, 167 L.Ed. 2d 929 (2007). 3 Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007).4 Iqbal, supra note 1, at 1950-51.5 Fed.R.Civ.P.App. Form 11.6 See Twombly, supra note 2, at 564 n. 10.7 Iqbal, supra note 1, at 1950.

Unlocking the Doors of Discovery The Federal Pleading Standard under Ashcroft v. Iqbal

FEDERAL PRACTICE

ChristopherM.Gatto

SCBA Installation and Judiciary Night


Children enjoyed face painting.

Dog Day Afternoon Agility Expo and Pet Fair

Joan S. Arbiter, Esq., Melissa Gillespie, Esq., Nicole Zuvich, Esq., AmyChaitoff, Esq.

Karen Strom, Esq. was very involved in makingthe day a successs.

A woman from the Long Island Parrot Society of NewYork, Inc. holds one of their beautiful birds.

Matthew TamsenA dog up for adoption finds their way through the maze.



__________________By Leo K. Barnes Jr.

With the real estate sale and ental sea-son well underway, and the brokeragecommunity ecstatic to entertain any sem-blance of business after the drought thathas plagued the industry for the past sev-eral years, it is an opportune moment toreiterate the premise that an enforceablebrokerage commission contract must con-tain all material terms to avoid dismissalof a duly earned commission premisedupon a court’s characterization of thecommission agreement as an unenforce-able “agreement to agree.”

The underlying principle that governs adocument’s characterization as an unen-forceable agreement to agree stems fromthe absence of manifested mutual assentto the essential terms of a purported con-tract.

In order to create a binding con-tract, there must be a meeting of the

minds as to the essentials ofthe agreement. There can beno legally enforceable con-tract unless the written agree-ment is reasonably certain orspecific in its materialterms.…While not all terms ofa contract need be fixed withabsolute certainty, a mereagreement to agree, in which amaterial term is left for futurenegotiations, is unenforceable.…Indetermining whether a contract is rea-sonably certain in its material terms,and therefore sufficiently definite asto be enforceable, a court must applya standard that is necessarily flexible,varying with the subject of the agree-ment, its complexity, the purpose forwhich the contract was made, the cir-cumstances under which it was made,and the relation of the parties.…

Generally, compensation andmanifestation of intent aredeemed “material” terms.Additional terms are “material”when the parties consider themto be, such as the procurementof signatures [internal citationsomitted].1

In two decisions this springrendered by the Second

Department and the Suffolk CountySupreme Court’s Commercial Division,Zere Real Estate Services learned twice,the hard way, that a broker’s inability todocument to the court that “mutualassent” to the terms of an agreementexists renders a putative real estate com-mission agreement unenforceable.

First, in Zere Real Estate Services Inc.v. Adamag Realty Corp.,2 the commercialreal estate agency sought to recover a bro-kerage commission incident to the sale ofa commercial property. At trial on theclaim before Justice Mayer, the plaintifftestified that the commission for a com-pleted sale would be “no more than 5 per-cent” and that the plaintiff understood theagreement to mean that the defendant hadagreed to pay a 5 percent commission.The defendant testified at trial that heunderstood that if a deal was completed,the parties would negotiate a commissionrate of no more than 5 percent dependingon the particulars of the sale actually con-summated. Apparently, it was not in dis-pute that the commission “agreement”was nonexclusive and that there was noagreed upon duration to the purported“agreement.” After summations, the juryruled that the parties did not enter into anexpress brokerage agreement. TheSecond Department, in affirming, ruledthat the jury’s finding was not against theweight of the evidence since a fair inter-pretation of the evidence supported theconclusion that the parties merelyreached an agreement to agree.

The following month, Zere RealEstate’s breach of contract cause ofaction was dismissed on summary judg-ment in an action pending in theCommercial Division. In Zere RealEstate Services, Inc. v. Parr,3 plaintiffmoved for summary judgment on its bro-kerage commission claim sounding inbreach of contract. Specifically, plaintiffclaimed that it was entitled to a commis-sion if defendant, or any of its affiliates,entered into a formal agreement withTouro Law School to function as Touro’sgeneral contractor or construction manag-er in connection with the law school’sconstruction of a new school in CentralIslip. According to the court, although thewriting specified that a fee would benegotiated at a later date, plaintiff arguedthat in a subsequent recorded telephoneconversation, defendant agreed thatplaintiff’s fee would amount to 6 percentof the construction cost; the defendant, ofcourse, denied that characterization.

In denying the plaintiff’s motion forsummary judgment and granting thedefendants’ cross motion for summaryjudgment dismissing the breach of con-tract cause of action, Justice Pines reliedupon black letter law that absent a clearmutual assent to all terms of a purportedagreement between two parties, the samewill constitute an unenforceable agree-ment to agree. At bar, although it is well

settled that a court may impute a missingprice term if it is readily ascertainable byreference to outside sources such as cus-tom or trade usage, the court ruled thatthe plaintiff failed to demonstrate thatthere existed a standard for the claimedbroker’s fee premised upon the project’scost of construction. Indeed, SecondDepartment precedent is clear:

It is well settled that an agreementto agree, in which material terms areleft for future negotiations, is unen-forceable unless a methodology fordetermining the material terms canbe found within the four corners ofthe agreement or the agreementrefers to an objective extrinsic event,condition, or standard by which thematerial terms may be determined(see, Cobble Hill Nursing Home v.Henry & Warren Corp., 74 N.Y.2d475, 548 N.Y.S.2d 920, 548 N.E.2d203, cert. denied 498 U.S. 816, 111S.Ct. 58, 112 L.Ed.2d 33; see also,Martin Delicatessen v. Schumacher,52 N.Y.2d 105, 109, 436 N.Y.S.2d247, 417 N.E.2d 541). Further,where an agreement contains openterms, calls for future approval, andexpressly anticipates future prepara-tion and execution of contract docu-ments, there is a strong presumptionagainst finding a binding andenforceable obligation (see,Teachers Ins. & Annuity Assn. of Am.v. Tribune Co., 670 F.Supp. 491,499).4

Although all is not lost, the brokeragecommission claim has been renderedexponentially more difficult to pursuesuccessfully. As reiterated in the com-ments which follow Pattern JuryInstruction 4:31, where the existence of abrokerage contract is in dispute, the bro-ker may proceed on the theories of breachof contract and quantum meruit. SeeBreslin Realty Development Corp. v 112Leaseholds, LLC5and Curtis PropertiesCorp. v Greif Companies.6 Indeed, in theZere Real Estate matter pending beforeJustice Pines, the court permitted theplaintiff to proceed with its equitableclaims despite the dismissal of the causeof action premised upon breach of anexpress contract. So although the claim isstill viable, the plaintiff has been reducedto proceeding through the discoveryprocess in its effort to establish liabilityand damages, from square one, instead ofrelying upon a single document whichcould have founded a successful summa-ry judgment motion. Diligence in thedrafting and execution of the commissionagreement prior to the initiation of ser-vice by the broker avoids protracted liti-gation on the scope and value of servicesrendered by a broker.

Note: Leo K. Barnes Jr. is a member ofBarnes & Barnes, P.C. and can bereached at [email protected]

1 N.Y. Jur.2d, Contracts, § 192 __ A.D.3d ___, 875 N.Y.S.2d 162 (2nd Dep’t

2009).3 Suffolk Supreme Court Index Number

39680/2007 (Justice Emily Pines).4 Carmon v. Soleh Boneh Ltd., 206 A.D.2d 450,

614 N.Y.S.2d 555 (2nd Dep't 1994).5 270 A.D.2d 299, 704 N.Y.S.2d 861 (2nd Dep’t

2000).6 236 A.D.2d 237, 653 N.Y.S.2d 569 (1st Dep’t

1997).

Caveat Broker: Avoiding Unenforceable Agreements To Agree

COMMERCIAL LITIGATION

Leo K. Barnes Jr.

Interview With Sheryl

Randazzo

be done in order to get there?

SR: There have been significant changesin the legal profession for women overthe past 15 years, including an increase inthe number of women in the actual prac-tice of law, greater opportunities foremployment in all aspects of legal prac-tice for women, more women on thebench, in higher office and in positions ofinfluence, and greater recognition of thevalue of women in the profession. Thesechanges have come through the commit-ment and perseverance of women attor-neys over the last 50+ years to take on thechallenges and overcome barriers in thefield.

In some aspects of the practice of law,barriers and unwarranted stereotypes stillexist that need to be overcome. However,the greatest changes that could yield fur-ther benefit to women attorneys in thefuture would also benefit our male col-leagues as well. Improved work environ-ments, more realistic time and perfor-mance expectations, opportunities forflextime, compressed work weeks andjob sharing, increased civility in the pro-fession, staggered court calendars andrecognition by the judiciary of the chal-lenges of small firm practitioners, andtrue recognition within the professionoverall of the benefits of work/life bal-ance are just some areas that, ifaddressed, could benefit female and maleattorneys alike. To get there, we need tocome together, share our concerns, offerour suggestions, be open-minded to alter-native ideas and work collectively onpractical solutions. Joining and becomingan active member of the Suffolk CountyBar Association is an important first stepin that direction.

TSL: Ilene Cooper was just installed asthe President of the Association – only thethird female President in the Association’s101 years, and as President-Elect, you’rethe next in line. Do you think that womenleaders of the Association bring a differentkind of leadership to the Bar, and if so,

how? Do you think that the fact that you’rewomen will make a difference in what theAssociation will seek to accomplish overthe next few years?

SR: It is my genuine honor to have theopportunity to serve in the leadership ofthe Suffolk County Bar Association, as ithas been for the so many men and sever-al women who have preceded me. Ibelieve each of us as a leader brings withus our unique skills, ideas, strengths andpersonalities. Part of who I am and willcontinue to be as a leader is based uponwho I am as a person. Personally, I woulddescribe myself as lawyer, a woman, alaw firm partner, an active communitymember, a daughter, a sister, a friend,and, my newest and proudest role, as amother, among other roles and not neces-sarily in that order. Each of these per-spectives, and all of the different oppor-tunities they have given to me, will con-tribute to my efforts to effectively serveas President of the Suffolk County BarAssociation.

Do I think that what I have and will tryto bring to the table as a leader is differ-ent because I am a woman? Not necessar-ily. I think it will likely be different, how-ever, because I am me and I am different,and part of being me is being a woman.With that said, I must also say that how aperson leads is significantly influencedby who has led them, and particularlythose who did it well. I have had manyinfluences and people I consider rolemodels and mentors, both men andwomen, and their examples have and willimpact on my role as a leader. We at theSuffolk County Bar Association havebeen particularly fortunate to have hadforward thinking Presidents, who havetaken the good of their predecessors,learned and improved on it, enabled us todiscard what did not serve us well, andadd their own contributions to the causeof serving our membership. I hope to dothe same, and I look forward to theprogress of the Association through itsfemale and male leadership.

(Continued from page 4)


FUTURE LAWYERS FORUM

__________________By Andrew VanSingel

Newsflash—the economy istanking. The housing market isstill a mess, and unemploymentcontinues to be a national con-cern. The legal economy hasnot been insulated from thisdownturn either, which is mak-ing it difficult just to hold onto ajob, let alone get one. Leadingthe way among the hardest hit are thelarge law firms, which have been forcedto make layoffs, cut salaries, and deferfirst year associates employment as far asa year after graduation in order to keeptheir head above water. The effect is dev-astating to those looking for work as thewave of layoffs inject a glut of experi-enced attorneys into the legal job market,making it even harder for graduates andless experienced attorneys to secureemployment upon graduation.

No, this article isn’t a rant about notbeing able to find a job. I did that already.It’s called “Dude, Where’s My Job,” andit is in the February issue of The SuffolkLawyer.1 Read that if you want to burdenyour eyes to an eight hundred word self-loathing rant about a borderline distin-guished second year law student as heattempts to find a summer associate posi-tion, only to find that his summer willmost likely be spent doing manual laboron his dad’s farm—the same sort of laborthat motivated him to go to law school inthe first place.

Since ranting and raving is far fromproductive, I want to take more of a prag-matic approach. The truth of the matter isthe economy is affecting everyone, espe-cially law students. Wages are beingpushed down, while tuition manages torise every year. While students at the topranked law schools might not be feelingthe pinch, there is a real concern for stu-dents graduating from the third and fourthtier schools due to the notion that a grad-uate from a higher ranked school equatesto a better employee. Of course the high-er ranking schools know this all too well,and expend a great deal of effort main-taining the status quo, obsessing overmetrics which have no real bearing on thequality of lawyers they are producing(such as the school’s bar pass rate).

Mark Bennett, a Houston-based criminaldefense lawyer and active blogger sums itup rather matter-of-factly on his blog:“Because of the way law school rankingswork, a law school that focuses on actual-ly training lawyers will probably be rankedlower than a law school turning out legalscholars…who are not good for muchmore than skyscraper document review.”

This contention may be a little extreme,but the overall premise has some merit.Institutions who sit atop the publishedrankings report focus on preservation oftheir reputation. Meanwhile, schools thatlack the prestige and notoriety gained inpart by a yearly report that somehowbecame authoritative, have somethingbetter going for them. While top schoolscan focus on prestige, unranked schoolscan focus on things that matter, like train-ing well rounded and prepared lawyers.

So what makes for a prepared lawyer? Isuppose being a third-year law studentdoesn’t necessarily make me an authorityon the subject, but I can reasonably assume

that a lawyer becomes prepared byacting like a lawyer while in lawschool, not acting like a student.Writing a bench brief for a judgeas part of a clinic is going to bemore beneficial than writing a fic-titious closed universe memo.Observing an actual trial is betterthan sitting in class talking abouthearsay objections. Sitting inclass can only get you so far in

your legal career, and a curriculum thatrecognizes this and favors the courtroomover the classroom will best prepare newlawyers.

While I don’t necessarily agree withsome of my school’s decisions all of thetime, I do believe they got it right regard-ing our curriculum. After spending twoyears at Touro, it just doesn’t seem right toeven say “Touro” and “fourth tier” in thesame sentence, especially after speakingwith some of my friends at other lawschools, the same schools which are high-ly regarded on those pesky law schoolrankings. Few, if any of my friends atother schools have ever stepped into acourtroom as part of their curriculum, oreven stepped out of their classroom for thatmatter. These same friends can recite theever-so-important rule against perpetuitiesin nauseating detail, but have no idea howthe recent amendments to the FederalRules of Civil Procedure have effected thegamesmanship involved in pretrial litiga-tion and e-discovery.2

Take my journey through school as anexample of what the right curriculum cando to prepare a future attorney. Duringmy first year of law school, our class par-ticipated in the Court ObservationProgram, which allowed our class to seefirsthand the dynamics of the courtroom.Among other things, we were able to sit inon voir dire, and afterwards discuss withthe judge and attorneys about who wethought would be a “good” or “bad” jurorand why. This wasn’t a charity either, asthe attorneys had a real interest in ourinsights.

During my second semester, I traveledto Washington, D.C. to lobby with a pub-lic interest organization which operatesout of the Law Center, and actually metsome of our senators (not just their assis-tants). I wasn’t a bystander either—I wasable to make my own pitch to a U.S.Senator’s Military Legislative Assistant.

Over the summer, Touro’s work-studyprogram allowed me to get paid to clerkfor a judge who was glad to take me on asa clerk, but didn’t have the money to doso. This experience afforded me theopportunity to meet numerous attorneys,research a wide variety of legal issues,and most importantly, gave me confi-dence in my own ability to do legalresearch and draft legal memoranda.

This past semester, I was an extern at amajor Manhattan firm as a part of theBusiness, Law, and Technology Clinic,where I received experience working for“BigLaw.” I dove into the world of elec-tronic discovery, and wrote an article thatis soon to be distributed to over ten thou-sand of the firm’s clients.

But it doesn’t end there. This fall I havebeen selected to participate in the JudicialClerkship Clinic, where I will clerk for a

Comparing Potential HiresLook at the ingredients, not the brand name

Andrew VanSingle


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ATTORNEYS AT LAWNANCY BURNER, ESQ.,KIM M. SMITH, ESQ.


Acknowledgmentsfor SCBA SpeakersBureau

The Speakers Bureau, sponsoredby the SCBA, offers free to theSuffolk County community speak-ers on various topics of law to fosterfurther understanding of the legalissues important to individuals aswell as the general public.

The following SCBA membershave filled recent speaking engage-ments:Richard J. Burke - LindenhurstPublic Library - Landlord/TenantIssues;Martin Glass - Strathmore GateEast HOA - Elder Law, Wills,Trusts & Estates;Christian Killorian - ShelterIsland High School - DWI/ZeroTolerance, Ramifications of SocialNetworking (Facebook, etc.); Dennis Masino - LindenhurstPublic Library - ReverseMortgages;Joseph Mauro - SCOPEEducational Services AdultEducation – Identity Theft.

Great afternoon for pets and people To the Editor:

The Dog Day Afternoon last Sunday was a wonderful event. It gave us the opportu-nity to educate the public on TNR (trap/neuter/return) and also on VAS (VaccineAssociated Sarcoma) in cats. But the best part of the day was when a wonderful fami-ly came over to our table and saw Kaylee, a 5 month old kitten that was extremely shyand quite frightened. Since that is her personality and she is a cat that does not like tobe picked up or touched, we knew she would be a very difficult cat to adopt out. Butthis wonderful family saw your signs, stopped in by chance and found our table. Theysaw Kaylee and felt an instant attachment. They filled out our application, we checkedthem out, the family came to the foster home and spent a good hour with Kaylee anddecided that they would accept her for the cat that she is and give her a lovely foreverhome. Kaylee came from a truly horrible unclean boarding type situation and having herget a forever home with good people was the highlight of this event for us.

I truly hope the Suffolk County Bar Association will be hosting an event like thisagain next year!

Dottie Zammetti, PresidentA Home at Lastwww.stfrancis.petfinder.com

A Home at Last is a rescue group that attempts to match homeless and abused animalswith loving families. See article regarding the SCBA/Animal Law Committee Dog DayAfternoon Agility Expo and Pet Fair in this edition of the paper.

Letters policyThe Suffolk Lawyer welcomes letters, which should be no longer than 300 wordsand must contain the name of the writer and phone number for verification.Anonymous letters will not be published, but names may be withheld upon requestif the editor deems it appropriate. Letters should be sent to [email protected].

LETTERS

final review, you will probably noticethat your section devoted to work/fami-ly balance will be more comprehensivethan any other. That’s not a mistake.The more attention you give to achiev-ing that balance, the more successfulyou will be in combining your practicewith the rest of your life.

Note: Jeena Belil is currently the ownerof The Law Office of Jeena R. Belil, P.C.in Mount Sinai and Hauppauge, NewYork. Her areas of practice includePlaintiff’s Personal Injury, No Fault andUninsured Motorist Law, Subrogationand Insurance Coverage Disputes. Inaddition, she handles matters for smallbusinesses including employment con-tracts, separation agreements and com-mercial leases. Ms. Belil also coverscourt appearances and EBTs for otherattorneys on a per diem basis. You can also find Jeena volunteering forkindergarten activities, playing with herfive year old at Heritage Park and host-ing play dates at her home. She is avail-able to assist other lawyers trying tobalance work and parenthood and canbe reached at (631)445-7380 or [email protected].

Keeping it All

In The Air

(Cotinued from page 5)

SCBA members, their children and friends enjoyed a fun filled morning of music, and cre-ativity at the bar center.

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Photos by Jane LaC

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connections between clients and othersthat can provide value. They enjoy being ina group or around others and are generallybetter at collaborative interaction. All ofthese traits are helpful for establishingrelationships and serving clients.

These same lawyers are also more likelyto volunteer for additional work or to helpan overloaded colleague. But the tendencyto care for others can become troublesome,too. It’s easy to get overwhelmed, fail torecognize your own limits and neglect toset boundaries. Taking on too manyresponsibilities can backfire, causing youto miss important networking and otheropportunities both inside and outside of theoffice. Take a cue from the successful rain-makers you know – are they just workingin their offices or do they do other things,too?

Women lawyers encounter some com-mon pitfalls during their careers, since thelegal profession – particularly in positionsof power - is still dominated by malelawyers or lawyers exhibiting the malestyle of communication. Some quick tipsto avoid those traps include3.

Take action

Instead of always asking permission,simply inform those who need to be in theknow about what you’re doing and takeaction within your defined authority.Assume that if there’s a problem, they’lllet you know. Asking permission exhibitsa lack of authority and self-confidence.

Speak up!Since women value teamwork, they

sometimes fail to market themselves effec-tively as individuals. They keep theirheads down and work, waiting to benoticed and miss opportunities as a result.Get noticed by speaking early and often.Studies show that people who speak at thebeginning of a meeting are more positive-ly viewed than those who wait until theend of a meeting. Contribute something ofvalue, even if it’s asking a question. Mosttimes, if you have a question, others do,too.

Be confidentWhen women speak up, it can backfire if

their speaking style makes them appear tooweak or too overbearing. Don’t minimizeyour accomplishments, your contributionor your opinions by using words such as “I

just…” or “It was no big deal.” To avoidbeing viewed as pushy or intrusive (eventhough men in the same situation might notbe viewed that way) express your opinion,but invite others to express theirs as well.

Be conciseUsing long preambles or long explana-

tions can turn off a male style communica-tor and can convey insecurity, uncertaintyor inexperience. Get to the point quicklywhen communicating with those exhibit-ing the typically male style. And while pre-amble and personal discussion may beneeded to establish the relationship beforeyou discuss business with the female style,make the personal discussion valuable,rather than just a stalling tactic.

Establish your professional brandPrepare to discuss your accomplish-

ments – don’t assume that others are awareof or have kept track of them. Keep a sum-mary of your achievements based on whatis important to the firm (and your clients)so that you are prepared for a performancereview or client audit. Write a short brandstatement that reflects what you want oth-ers to be saying about you and worktoward achieving it.

There is no right or wrong communica-tion style, but knowing the differences canhelp you to succeed. Remember thatwhether you tend more toward the ‘male’or the ‘female’ style, it is likely that abouthalf of the population exhibits the oppositestyle. To capture their attention or per-suade them to adopt your position, youmay need to understand their communica-

tion style and the way they prefer to inter-act. If you want to persuade someoneexhibiting the female style, focus onhuman benefits and personal experience;provide background and context. To com-municate effectively with the male style,get to the point with statistics, facts andfigures.

The next time you’re having difficultygetting through to a colleague, partner,employee or client, examine whether yourcommunication style may be the obstacleand use these guidelines to adapt, if neces-sary.

Note: Allison C. Shields is President ofLegal Ease Consulting, Inc., a practicemanagement and business developmentconsultant who helps lawyers create pro-ductive, profitable and enjoyable law prac-tices. Contact her at [email protected] or at (631)642-0221,or visit her website, www.LawyerMeltdown.com, or blog at www.LegalEaseConsulting.com.

1 Barletta, Martha, Marketing To Women; How toUnderstand, Reach and Increase Your Share of theWorld’s Largest Market Segment

2 Lichtenberg, Ronna, Pitch Like a Girl: How aWoman Can Be Herself and Still Succeed

3 Adapted in part from “7 Antidotes to the MostCommon Mistakes Women Make in Law” by LoisFrankel, PhD in Sue magazine, Volume 1, Issue 1 andFrankel, Lois P., PhD, Nice Girls Don’t Get theCorner Office 101: Unconscious Mistakes WomenMake that Sabotage Their Careers.

Other sources for this article included: Shepard,Molly Dickinson and Stimmler, Jane K, StopWhining & Start Winning: 8 Surefire Ways forWomen to Thrive in Business

Kolb, Deborah M., Ph.D. and Williams, Judith,Ph.D., The Shadow Negotiation

Communication Strategies (Continued from page 6)

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federal judge across the street at theD’Amato Federal Courthouse.

As you read this, you might think that Iam by far the most well rounded, bril-liant, and awesome law student ever.While I would love to perpetuate this per-ception, I should point out that many ofmy classmates have the same opportuni-ties simply by attending Touro (unlessyou are hiring, in that case I am handsdown better and the man for the job).This also isn’t a plug for Touro made outof my own self-interest. Trust me, I’mnot on their dole, and the money is stillgoing in the wrong direction (sometimesI think the school has “just said no” to meregarding money more times than NancyReagan has).

I’m not ready to take Mr. Bennett’s out-look stated above - that the top schoolssolely churn out academics. To do sowould be rather unfair and ignorant. Butregardless of what the top schools aredoing, by the end of the day, an averageTouro grad will have stepped foot in bothfederal and state court, participated in aclinic where they have gained experience

in a specific field, and have most likelytaken advantage of the symbiotic relation-ship between the public interest groupslocated within the school. In retrospect,an average Touro grad isn’t so averageafter all. So employers, keep that in mind,as “fourth tier school” does not equate to“fourth rate students.” Now is the time tostop shopping by the brand name, andstart to look at the ingredients. I’m prettyconfident you will find the bargain brandto be pretty tasty.

Note: Andrew VanSingel is a law stu-dent at Touro Law Center, and the incom-ing New York State Constitutional IssueEditor for Touro Law Review. He may bereached at [email protected].

1 Available at http://www.scba.org/suffolk_lawyer.html

2 Rule 34, as amended, has significantly changedthe form and manner in which electronic documentsare to be produced, which I did not learn in CivilProcedure, rather during my externship at Gibbons,P.C. as part of Touro’s Business, Law, andTechnology Clinic.

Future Lawyer’s Forum(Continued from page 19)

DIANA C. GIANTURCOATTORNEY AT LAW

P.O. BOX 419LONG BEACH, NY 11561

Tel: 888-805-8282Fax: 516-706-1275

APPEARANCES IN QUEENS COUNTY

E-mail: [email protected]

work, dedication and loyalty to this greatorganization and to all of you, standingas your next president.

There have been many challenges andchoices for me to make along the way tothis podium today, but with all of itstwists and turns, and sometimes unex-pected crevices, the path for me has beenhighlighted with a tremendous sense offulfillment, gratifying experiences andmemorable friendships.

Our association includes some of thebest and the brightest attorneys and mem-bers of the Judiciary in New York State,and represents a talent pool that isunmatched. Indeed, it is you, the mem-bership that has given this organization itslife, and its purpose, upholding the valuesof integrity and civility in our profession.

And, the judiciary, whom we respect-fully honor this evening, is stellar-com-mitted to professionalism, compassionand the administration of justice inthese all too difficult times. With not acompensation package in sight, and anever-decreasing budget available tothem, the judiciary's continuing spirit isa testament to their profound andunremitting loyalty to the bench, to theneeds of this county, to the members ofthis Bar Association, and to the con-stituents of this state. Justice Prudentiand Justice Leis deserve nothing butaccolades for their leadership- - they doso with style, intellect, and a sense ofhumanity that is steadfast and strong.They are jurists who set the standard,because they epitomize judicial dignity,moral fortitude, fairness and innova-tion. Their contributions to the adminis-

tration of justice and to the practice oflaw in this county are truly inspira-tional, and have been a driving forcebehind the organization we are today.

This Bar Association prides itself asbeing a single unified force, diverse in itslandscape and in the significant marks thatit has made upon this county's history.

Yes, we are diverse. We are comprisedof attorneys from varied ethnicities, gen-ders and demographics. We all benefitfrom these differences; they challengeour perspectives, re-shape our opinionsand redirect our goals. But, in the end, itis all for the good of our organization.

It has been said that a house dividedagainst itself cannot stand. And so it istrue of an Association that discouragesthe diversity that distinguishes its mem-bers. There is, however, much to begained from a people, an Association,such as ours, that respects these distinc-tions and utilizes them to grow, toenhance its membership, and to ultimate-ly fashion the depth of its views into avoice of one- - a voice that is rich in con-tent and meaning; and a voice that isbound by a spirit of camaraderie andcommunity that has enabled us to touchthe lives of so many.

We have mourned the loss of our mem-bers, recognized our local heroes whohave lost their lives to war, providedrelief during post-9/11 recovery, andrejoiced in the happiness and successes ofour members. We have been innovativeand resourceful; intellectual and ethical.Our accomplishments are many; the pathswe have taken and the tracks we havemade are everlasting.

Indeed, in our 101 years, we have hadmany milestones and achievements neverseen by an organization of our kind. Fromlunch with Justice Sandra Day O'Connor,to presentations by national and worldrenowned leaders, controversial thoughsome of them may have been, tostatewide awards issued to our BarPresidents, judges and justices, ouraccomplishments are many and overshad-owed by none.

"Each of us can make a difference;together we can continue to makechange." This organization is the handi-work of each one of you- - and those whocame before you- - your commitment,

your effort, your talent and your willing-ness to share and entertain ideas differentfrom yours though some may have been,yet all for the greater good.

I am proud to be a member of thisorganization, and to have participated inits growth and development, and evenmore proud to be serving you as itspresident. And so, as I stand here thisevening, and embark upon this journey,I raise my glass to you all and say: "Ihave the simplest of taste- - I am onlysatisfied with the best" and I have foundthe best in you.

Thank you.


President’s Message (continued from page 1)

Among Us (continued from page 7)

online networking groups.

Certilman Balin’s Litigation PartnerDonna-Marie Korth was selected bySt. John's University Law School to beprofiled on the school's homepageat www.stjohns/academics/graduate/law<http://www.stjohns/academics/gradu-ate/law> . Her profile, "A Litigator and aChampion of Children," will beaccessible for the month of June.

Mark E. Spund, partner and head ofthe Employment and Labor Law practicearea at Davidoff Malito & Hutcher LLPparticipated in a CLE Seminar, "PracticalSkills -- How to Commence a CivilLawsuit." Mr. Spund presented,"Discovery - An Overview" whichstressed individual judges' and local rulesto 234 attorneys in New York City. Theseminar, sponsored by the New YorkState Bar Association, was attended by atotal of 582 attorneys in six localesthroughout New York State.

Stephen J. Silverberg, a partner in theTrust & Estates Practice Group atCertilman Balin Adler & Hyman, LLP,has been elected President of the Board ofDirectors of the National Academy ofElder Law Attorneys (NAELA) for a oneyear term commencing June 1, 2009.

The law firm of Futterman & Lanza,LLP presented a free two-hour seminaraddressing elder law and estate planning.“Medicaid Planning & Asset Protection”took place on June 17 at the law office.

Smithtown Conservatives have namedattorney Janine Barbera, partner in thefirm of Barbera & McElhone, as theparty's first female town leader in statehistory.

Mark J. Epstein, a partner at the lawfirm of Pazer, Epstein & Jaffe P.C. hasbeen appointed as a member of the LongIsland Rail Road Commuter’s Council(LIRCC) and the Permanent Citizen’sAdvisory Committee to the MTA.Epstein’s appointment by GovernorDavid Patterson was made possible byrecommendations from Suffolk LegislatorLou D’Amaro and SCBA member CountyExecutive Steve Levy.

Jeffrey I. Citron, co-managing partnerof Davidoff Malito & Hutcher LLP, hasbeen named to "Who's Who in Corporate

Law" by Long Island Business News.

Long Island Business News has namedDonnalynn Darling, the Chair of Meyer,Suozzi, English & Klein’s Personal Injuryand Medical Malpractice groups, andChair of the firm’s Education Law prac-tice as one of Long Island’s Top 50Women.

Brian Andrew Tully, an attorney spe-cializing in elder law, published his article“A Counterview: Objections to thePOLST Paradigm,” in the February 2009issue of The Elder Law Report.

William H. Heberer, a partner in theGarden City law firm of Moritt HockHamroff & Horowitz LLP, has beenrecently elected to serve on the Board ofDirectors of the Fair Media Council.

Condolences….To SCBA President Ilene Sherwyn

Cooper and her family on the passing ofher mother, Mrs. Gloria Sherwyn.Donations can be made in Mrs. GloriaSherwyn’s name to United Jewish Appeal(UJA Federation), 6900 Jericho Turnpike,Suite 302, Syosset, NY 11791, (516) 677-1800.

To the family of longtime memberBernard L. Nussinow, a member since1979.

Deepest sympathy to the family andpartners of Donald Markowitz of FlowerMedalie & Markowitz. Our deepest sym-pathy goes to his family and partners.

New Members…Daniel Barker, Michael J. Brescia,

Peter E. Brill, Patricia Burden, RobertMichael Connelly, Brian T. Connors,Peter Corey, Michael S. Cox, David M.Geller, Sougoto Ghosh, Vivian Joo,Michele I. Klatch, Richard T. Lau,Stephanie D. Levine, Brendan ThomasMcVey, Cheryl S. Mitchell, Donald R.Pugliese, Malgorzata Rafalko, AngeloRizzo, Ralph A. Somma and EllenSundheimer.

The SCBA also welcomes its newest stu-dent members and wishes them successin their progress towards a career in theLaw: William J. Etherson, LaurelMcNeill and Lois S. Saltzman.


barred from the practice of law in theState of New York.

Alan H. Young (admitted as AlanHoward Young): Mr. Young acknowl-edged that he was the subject of anongoing investigation by the GrievanceCommittee and that charges of his pro-fessional misconduct would be prose-cuted against him based upon allega-tions regarding irregularities in his attor-ney escrow account. Mr. Youngacknowledged that he would be unableto successfully defend himself on themerits against any disciplinary chargeswhich might be brought against him. Inaddition, he acknowledged that his res-ignation was freely and voluntarily ten-dered and that he was fully aware of theimplications of submitting his resigna-tion. Further, he acknowledged that hisresignation was subject to an orderdirecting that he make restitution andreimburse the Lawyers' Fund for ClientProtection. In view of the foregoing, Mr.Young’s resignation was accepted andhe was disbarred from the practice oflaw in the State of New York.

Attorneys Censured:John D. Orth: By order dated May

13, 2008, the Supreme Court of the Stateof New Jersey publicly reprimanded therespondent for failure to promptly deliv-er funds to a third party, comminglingpersonal and client funds, failure tocooperate with disciplinary authorities,and failure to update attorney registra-tion. The complaint emanated from therespondent’s neglect in a real estatematter. Although the respondent was

personally served with notice pursuantto 22 NYCRR 691.3, he failed to submita verified statement or demand a hear-ing. Accordingly, the court found therewas no impediment to the imposition ofreciprocal discipline. Under the circum-stances, therefore, he was publicly cen-sured.

Attorneys Suspended:James T. Hytner: Motion by the

Grievance Committee for an order sus-pending the respondent from the practiceof law and authorization to institute a dis-ciplinary proceeding granted based uponrespondent’s failure to respond to fivecomplaints of professional misconductagainst him, and his failure to cooperatewith the Grievance Committee.

Mark O. Wasserman (admitted asMark Owen Wasserman): By deci-sion and order of the court theGrievance Committee was authorized toinstitute a disciplinary proceedingagainst the respondent and the matterwas referred to a Special Referee. Aftera hearing, the referee sustained all eightcharges of professional misconductagainst the respondent, which alleged,inter alia, that respondent neglectedclient matters, handled legal matters thathe knew he was not competent to han-dle, failed to respond to notices from theOffice of the Administrative Judge ofNassau County directing him to submita response to a request for fee arbitra-tion, and failed to properly respond tothe lawful demands of the GrievanceCommittee. Under the totality of the

circumstances presented, and upon con-sideration of the substantial mitigatingcircumstances, the respondent was sus-pended from the practice of law for aperiod of one year.

Attorneys Disbarred:Steven Woghin: On September 22,

2004, the respondent pled guilty in theUnited States District Court for theEastern District of New York to con-spiracy to commit securities fraud andobstruction of justice. He was sentencedto a term of imprisonment for 24 monthsand a three year period of supervisedrelease. The respondent was fined $200.The court found that the respondent’sfederal felony was essentially similar to

the New York felony of fraudulent secu-rities transactions, as well as the NewYork felony of scheme to defraud in thefirst degree and/or the New York felonyof offering a false instrument for filingin the first degree. Accordingly, byvirtue of his conviction of a felony, therespondent was automatically disbarredfrom the practice of law in the State ofNew York.

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

Court Notes (Continued from page 8)

CHRIS MCDONOUGH

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DISCIPLINARY MATTERS • ETHICS OPINIONS

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pensate for the circumstances. A commonquestion asked by clients is, “is thislegal?” The answer is yes and in fact,observation audit results have been sus-tained in the courts.

Who says a flat tax is simple?The New York State Sales/Use Tax is a

flat-tax structure. And how often have weheard that instituting a flat tax wouldmake everything less complicated?However, with a closer look at the NewYork State Sales Tax, one could see thateven a flat tax can create a huge mess.Take a bagel store for example. A cus-tomer purchasing a roll with butter andbottled water would be subjected to NYSSales Tax on the entire purchase despitethe contents resembling prison food (ormere sustenance). Yet the customerbehind him in line purchasing a SnappleIced Tea with chocolate cake would payno sales tax at all because tea and bakedgoods are considered exempt. Based onthis example, you can see that logic oftenfails to dictate the expected sales tax treat-ment and that business owners can easily

find trouble if each sale is not reflectedproperly during the audit period and theobservation audit.

Penalty abatementAt a car dealership, it’s best to negotiate

the price of the new vehicle before ascer-taining the value of the one you are trad-ing-in. This isolates the variables andmakes it easier to understand how mucheach component costs. Audits are oftenstructured the same way. After the tax isnegotiated, the final hand played in thecard game is the abatement of penalties.In the past, “first-timers” were oftenallowed penalty abatement as a matter ofgrace. However, it is no longer a surething. It should be noted that there aretwo components to a traditional Sales TaxPenalty; the penalty itself and the increasein the interest rate on the underlyingassessment. If abated, the penalty isremoved and the interest rate is reducedfrom 14 to 9 percent statutory interest.

Bear in mind that the penalties aren’tjust set aside without a little quid pro quoexpected from the taxpayer. The depart-

ment typically requires the execution of aWaiver and Consent in exchange for thefavorable penalty reduction. The signedconsent ends the audit but prevents thetaxpayer from further protesting the auditresults.

The Tax Department’s new policyFor quite some time, this procedure

resolved and ended the Sales Tax Audit.After the representatives had negotiatedthe tax as low as they could get it, theywould seek penalty abatement and then theparties would move forward with theirlives. However, the policy in the NYS TaxDepartment has recently changed and ithas impacted the way that these auditsshould be addressed. Because of the cur-rent economic climate, New York Stateneeds money. As a result, Tax Departmentemployees have searched for and found asteady source for new tax audits… name-ly…existing audits. Although not citableas precedent, a recent case demonstratesthe new Department policy. In the recentALJ Decision4 it was held that because the“taxpayer signed the consent to theStatement of Proposed AuditAdjustments,” the Tax Department’s use ofthe figures to subsequently “determine theamount of additional unreported incomefor income tax purposes was clearly prop-er and appropriate.” Therefore an execut-ed consent could constitute an admission.Adding insult to injury, the business ownerwas not even allowed to provide offsettingexpenses (i.e. cash inventory or cash pay-roll) against the additional incomeimposed by New York State. These areliabilities that are typically here to stay.Sales taxes are considered trust funds andare not dischargeable in Bankruptcy.

It doesn’t stop thereA high observation audit result can lead

to the ultimate parade of horribles. TheIRS has an information sharing programwith the NYS Department of Taxation andFinance. A single day observance of salescan resonate into state franchise and fed-eral corporate/individual income taxassessments as well. Due to the potentialfor a resulting multi-tiered institution ofadditional taxes, the sales tax audit hasobtained a heightened importance andmust be addressed cautiously from incep-tion. It doesn’t stop there. Many sales taxaudits trigger follow-up audits to insurecontinued compliance from the time thelast audit was completed.

In light of the personal liability of theseentity-level deficiencies and the resulting20-year renewable collection statuteagainst personal property of the parties‘responsible’ to remit the tax, a successfulday of business could end up being theworst day of your client’s life.

Note: Eric L. Morgenthal, Esq., CPA,M.S. (Taxation) maintains his law practicein Smithtown, NY. He is Co-Chair of theSuffolk County Bar Association TaxationLaw Committee, a member of the NassauCounty Bar Associations–Tax LawCommittee, the NYS Bar Association-TaxSection, the American Institute of CPA’sand the IRS Liaison Committee of theAmerican Association of Attorney-CPA’s.Questions or Comments can be directed tohis firm at [email protected].

1 NYS Tax Law Sections 1135 and 1142(5)2 NYS Tax Law Section 1138(a)(1)3 Matter of Vebole Edibles v. Tax Appeals

Tribunal, 162 A.D.2d 7654 The Matter of the Petitions of Bok Hui Nam,

DTA Nos. 821515 and 822016

Bench Briefsby a Notice of Motion rather than by aOrder to Show Cause as is required byCPLR 321(b)(2). Under these circum-stances, the court had no opportunity todirect the manner and method of service.Consequently, consideration of the meritsof this motion was precluded by the juris-dictional defect.

SUFFOLK COUNTY

COUNTY COURT

Honorable Jeffrey Arlen Spinner

Motion denied; out of state affidavit notaccompanied by certificate of conformity

In Fremont Investment and Loan v.Michael Gramse, Michele A. LaezzaGramse a/k/a Michele Laezza a/k/aMichele Gramse, “John Doe One”through “John Doe Ten” the last ten namebeing fictitious and unknown to thePlaintiff, the persons or parties intendedbeing the tenants, occupants, persons orcorporations, if any having or claiming aninterest in, possession of, or lien upon thepremises described in the Complaint,Index No. 19019-08, decided on February27, 2009, the court denied plaintiff’s appli-cation in this foreclosure action for leave toamend the caption by striking “John DoeOne” through “John Doe Ten” and forleave to amend the complaint. In render-

ing its decision, the court noted that theaffidavit of merit provided was not submit-ted in admissible form. Such affidavit wassigned and notarized in the State of Texasand as not accompanied by the requiredcertificate of conformity with the laws ofthe State of Texas. For an out of state affi-davit to be admissible, it must comply withCPLR 2309 [c] which requires that an outof state affidavit be accompanied by a cer-tificate of conformity.

Please send future decisions to appear in“Decisions of Interest” column to ElaineColavito 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 September 2009 issue,decisions must be received by August 1,2009. Submissions will be accepted on acontinual basis. All decisions sent to pre-viously listed mailing address will stillconsidered for inclusion in future“Decisions of Interest” column.

Note: Elaine Colavito graduated fromTouro Law Center December 2007 in thetop 6 percent of her class. She is an asso-ciate at Heidell, Pittoni, Murphy, & Bach,LLP, in Garden City, New York, concen-trating in litigation defense. She can becontacted at (516) 408-1600.

SCBA Connects Working ParentsA list serve has been created for Suffolk County Bar Association members who

are working parents and interested in connecting with one another. The idea behindthis most recent member benefit is that many attorneys in Suffolk County, bothmale and female, are working parents who face the daily challenges of handling thesignificant responsibilities of being an attorney while simultaneously having theeven more significant responsibilities of being a parent. Childcare alternatives,flexible schedules, integrating work and family life effectively, networking withinparticular time limitations, and career development are just some of the potentialtopics of discussion for participants.

Ideally, the list serve can provide an opportunity for members to feel connectedto other similarly situated parent-attorneys, which may reduce feelings of stress andisolation. At the same time, participants can make a true contribution to peers andcolleagues by offering practical suggestions and meaningful assistance based upontheir own experience as attorney-parents.

There is no obligation once you are a member of the list serve – you may stay onthe periphery and observe the members’ exchanges or you can become an activeparticipant. Either way, the Working Parents List Serve is a member benefit of theSCBA that you are welcome and encouraged to join. To do so, please send a briefe-mail expressing your interest to SCBA 1st Vice President Sheryl Randazzo [email protected]. Your working parent colleagues are looking forward toyour involvement.

- Randazzo

(Continued from page 3)

Pitfalls of a Sales Tax Observation Audit (Continued from page 12)

“people who have made a difference intheir contributions to the Bar this year.Amy added a new committee and Scott isalways available when the Suffolk CountyBar Association calls upon him to serve.”

Barry Smolowitz, SCBA PastPresident (07-08) accepted the presti-gious President’s Award. “Barry sayswhat he thinks, and puts the Bar first andcares more than anyone I’ve known in allmy years with the SCBA,” Mr. Winklersaid when presenting the award. Mr.Smolowitz, visibly touched by the honorresponded, saying, “I am the ultimate BarAssociation junkie, an affliction thatthere appears to be no cure.”

The evening was also a celebration ofthe installation of directors led by DistrictCourt Administrative Judge MadeleineA. Fitzgibbon. The following directorswere installed: Cheryl F. Mintz, Lynn

Poster-Zimmerman, Richard L. Stern,and Kerie P. Stone.

The Executive Board for 2009-2010were also installed by Surrogate JudgeJohn M. Czygier, Jr. and include: SherylL. Randazzo, President-Elect; MatthewE. Pachman, First Vice-President; ArthurE. Shulman, Second Vice-President;Dennis R. Chase, Treasurer; and WilliamT. Ferris III, Secretary.

Note: Laura Lane is the Editor-in-Chief of The Suffolk Lawyer and theDeputy Press Secretary for the NassauCounty Legislature, Majority Party. Sheis an award winning journalist havingwritten for the New York Law Journal,Newsday and the Herald newspapersamong others. Her short story is includedin an anthology of short stories, “2001: ALong Island Odyssey.”

Installation Dinner (continued from page 1)


__________________By Justin Giordano

This column is dedicated to the variousopinions of SCBA members. Submissionswill be accepted from all members of theSCBA.

The Justice Department v. Senator Stevens

One of the cornerstones of theAmerican justice system, and for thatmatter what should be the foundation ofany legal system anywhere, is the assur-ance of a “fair” trial. It is indeed impos-sible to achieve justice without a trialbeing fairly prosecuted. Essential to theconcept of fairness is full disclosure,which in our legal system are termed“exculpatory facts or evidence.” Thiskind of evidence when in the possessionof the prosecution must be turned over tothe defendant or made public in opencourt in order to make the jury and judgeaware of said information. A recentexample of a flagrant violation of thisfairness principle was displayed in the so-called and now infamous “Duke Lacrossecase.” In that case the prosecutor waseventually and correctly found guilty ofprosecutorial misconduct, disbarred, dis-graced, and even spend a brief period injail.

In a more recent 2008 case of formerSenator Ted Stevens of Alaska, the prose-cution was at it again. In the case in ques-tion however, the prosecutors’ malfea-sance was not detected until the damagewas fully completed. The damage wastwofold, the defendant, Sen. Stevens, wasconvicted of seven counts of lying onSenate financial disclosure forms to con-ceal hundreds of thousands of dollars ingifts and home renovations from a wealthyoil contractor. Additionally, and perhapsthe biggest prize from the perspective ofhis political opponents, the senator lost a

closely fought senate election aweek after being convicted. Thiswas a seat that the 85-year oldsenator had held since 1968 andby all indications would haveretained but for the federal trialhe faced and the ensuing convic-tion. This correlation was amplyevident given that his trial andconviction constituted the princi-pal issues utilized by Sen.Stevens’ opponent in his campaign ads. Asecondary or ancillary effect had far-reaching political tentacles in that itarguably led to the defeat of two of Sen.Stevens’ prominent colleagues in thestates of Minnesota and New Hampshiresenatorial contests.

Sen. Stevens appealed his convictionand was awaiting sentencing when onApril 1, 2009, the Justice Departmentasked the judge in the case to toss out thesenator’s conviction on the basis of prose-cutorial misconduct. Indeed the JusticeDepartment removed the prosecutorsinvolved for withholding exculpatory evi-dence against Sen. Stevens from his attor-neys, the presiding judge and jury.Throughout the trail the prosecutors haddisplayed an utter lack of interest in pursu-ing justice, focusing exclusively on secur-ing a conviction by any means. Theirantics and missteps were frequent andsevere enough that trial judge Sullivangrew infuriated and held the JusticeDepartment prosecutors in contempt ofcourt, a highly unusual step. More specifi-cally Judge Emmett Sullivan called theprosecutors’ behavior “outrageous.” Saidprosecutors are currently under investiga-tion by the Justice Department.

In the 1980’s, then Secretary RaymondDonavan (in the Reagan administration)after being cleared from public smears andvilification by false accusations of wrong-doing and corruption, lamented “where do

I go to get my reputation back?”It would seem that the samequestion is just as applicable inthe 2008-2009 Stevens case.

Historical background: Brady v. Maryland

The 1963 Brady v. MarylandUnited States Supreme Courtcase set the controlling case lawthat applies in situations such as

the case at hand. In that case the state ofMaryland obtained a conviction for mur-der against defendant Brady based on thestate prosecutors withholding the confes-sion of a co-defendant who had confessedto committing the crime. However it isobvious that the withholding of exculpato-ry evidence by overzealous, politicallymotivated or self-serving prosecutors hasnot been eradicated and perseveres overthe 46 years since the Brady decision wasrendered.

In fact, just recently, and in addition tothe afore-discussed Stevens case, inFebruary 2009 the U.S. Supreme Courtordered that the case of a Vietnam veter-an’s murder conviction be furtherreviewed because a prosecutor inTennessee purposely withheld witnessstatements that contradicted the state’sinterpretation of the case. There have beena number of other similar cases recentlyand a 2007 Federal Judicial Center studygives this credence as it found a disturbingtrend, namely that misinterpretation incon-sistencies are widespread in terms of evi-dence that could be favorable to the defen-dant. The issues revolve around not onlyinterpreting what might be favorable to theaccused but also when must this informa-tion be disclosed and what level of effortmust prosecutors expend in such efforts.

The American College of Trial Lawyersidentifies one of the problems as being theinterpretation of “exculpatory.” More

specifically, it would seem that the over-whelming challenge for many prosecutorsis that exculpatory is in the eye of thebeholder. One could make an argumentthat in some cases the “eye of the behold-er” defense may hold some minor validity.However, when the evidence is essentiallyclear cut, the prosecution has no defense.In addition, even in those situations wherethere is plausible doubt why not err on theside of justice by divulging any potentialexculpatory evidence to the defendant andtrial judge. If that had been the approachutilized in the Stevens case the outcomehad been very different. Indeed, there mostlikely would have been a dismissal of thecase or acquittal. It is also obvious that inthe Stevens’ case this was not an “eye ofthe beholder” situation if based on thebehavior displayed throughout the trialand the subsequent decision by JudgeSullivan to hold the prosecutors in con-tempt.

No easy solutionIs there a quick all encompassing solu-

tion to this seemingly pervasive and recur-rent impediment to the pursuit of justice?Perhaps more severe penalties for thoseengaging in these activities is oneapproach along with more stringentrevised laws and rules requiring prosecu-tors to turn over any potential exculpatoryevidence as a matter of course, thus elimi-nating as much room for equivocation aspossible. Attorney General Eric Holder inending the Stevens prosecution encapsu-lated well when in addressing prosecutorshe stated: “Your job is not to win cases.Your job is to do justice.”

Note: Justin Giordano is a Professor ofBusiness & Law at the State University ofNew York – Empire State College and anattorney based in Huntington. He wel-comes commentary and [email protected]

_______________By Stephen Kruger

Upon biennial registration, a New Yorklawyer is to disclose his social-securitynumber to the New York Office of CourtAdministration. 22 N.Y.C.R.R. §118.1(e). There is no legal basis for disclo-sure.

It is “the policy of the United States” that,in the administration of state or local taxes,welfare, driver licenses, or motor-vehicleregistrations, a state or local government“may . . . utilize” SSNs “for the purpose ofestablishing the identification of individualsaffected by such law[.]” 42 U.S.C. §405(c)(2)(C)(i). A statement of a policy isnot authority for a lawyer-financed client-compensation account to act, any more thana sense-of-the-Congress resolution isauthority for a United States agency to act.

It is an open question, in any event,whether the $350 paid for biennial registra-tion is a tax under New York law. The OCA

describes the $350 payment as a fee. NewYork Judiciary Law § 468-a, the subject ofwhich is biennial registration of attor-neys, doesn't mention SSNs at all.Disclosure of SSNs was instituted unilater-ally by the OCA.

Absent a United States law which autho-rizes the OCA to require disclosures bylawyers of SSNs, and absent a New Yorklaw which permits the OCA to require dis-closures by lawyers of their SSNs, the dis-closure requirement of the OCA is ultravires, and void.

Moreover, the OCA fails to provide aproper Privacy Act notice.

There is an uncodified provision of thePrivacy Act (Pub. L. No. 93-579, § 7, noteto 5 U.S.C. § 552a), § 7(a)(1) of whichstates that no one is required to disclose anSSN to a governmental agency, and no onemay be penalized for not disclosing anSSN, unless the prescribed notice is givenby the governmental agency.

Section 7(b) of the uncodified provisionprescribes that a notice is to set forthwhether disclosure is mandatory or is vol-untary, the statutory or other authority fordisclosure, and the uses which will be madeof the disclosed SSN. The § 7(b) notice pro-vided by the OCA is: “Social Security num-bers are required in order to administer thecollection of revenue obtained from attor-ney registration fees. 42 U.S.C. §405(c)(2)(C)(i). Social Securitynumbers will not be made public.”

Inexplicably, the OCA notice does nottrack the form and language of Privacy Act§ 7(b). There are as well substantive defi-ciencies with the OCA notice.

The OCA asserts, in its Privacy Act §7(b) notice, that SSNs “are required in orderto administer the collection of revenueobtained from attorney registration fees.”Administration is not the statutory rationalefor collecting SSNs, and neither is collec-tion of revenue. 42 §405(c)(2)(C)(i) speci-

fies that, in the administration of laws suchas tax laws, SSNs are for “establishing theidentification of individuals affected bysuch law[.]”

There is no assertion by the OCA in itsPrivacy Act § 7(b) notice that SSNs are

used by the OCA for the purpose of identi-fication of lawyers because that assertionwould be baseless. It is the province ofthe Appellate Division, not of the OCA, toidentify lawyers. The Appellate Divisioninforms the OCA who is a lawyer, by refer-

AMERICAN PERSPECTIVES/OPINION

OPINION

Prosecutorial Misconduct With

Far Reaching Consequences

Justin Giordano

SSNs May Not Be Collected For Biennial Registration

Liberty is lost in increments;liberty must be regained in increments. There’s a longway to go.

“

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

The Suffolk Academy of Law, the educational arm of theSuffolk County Bar Association, provides a comprehensivecurriculum of continuing legal education courses. CLEcourses listed here will be presented during July andAugust.

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

NOTES:Program Locations: Most, but not all, programs are held at theSCBA Center; be sure to check listings for locations andtimes.

Tuition & Registration: Tuition prices listed in the registrationform are for discounted pre-registration. At-door registrationsentail higher fees. You may pre-register for classes byreturning the registration coupon with your payment.

Refunds: Refund requests must be received 48 hours inadvance.

Non SCBA Member Attorneys: Tuition prices are discounted forSCBA members. If you attend a course at non-memberrates and join the Suffolk County Bar Association within 30days, you may apply the tuition differential you paid to yourSCBA membership dues.

Americans with Disabilities Act: If you plan to attend a programand need assistance related to a disability provided forunder the ADA,, please let us know.

Disclaimer: Speakers and topics are subject to change with-out notice. The Suffolk Academy of Law is not liable forerrors or omissions in this publicity information.

Tax-Deductible Support for CLE: Tuition does not fully supportthe Academy's educational program. As a 501©)(3) organi-zation, the Academy can accept your tax deductible dona-tion. Please take a moment, when registering, to add a con-tribution to your tuition payment.

Financial Aid: For information on needs-based scholarships,payment plans, or volunteer service in lieu of tuition, pleasecall the Academy at 631-233-5588.

INQUIRIES: 631-234-5588.

SUMMER CLE

HITTING THE HOT SPOTS

This summer series comprises eleven lunch ‘n learn programsthat deal with timely, significant, or challenging issues in thegiven fields – i.e., the “hot spots.” Any program may be takenindividually; a significant savings results from registration for thefull series (22 credits).

PROPER EXECUTION OF A WILLTuesday, July 14, 2009

Do’s, don’ts, and helpful hints will be disseminated.Faculty: Sheryl L. Randazzo, Esq. (Randazzo & Randazzo,LLP // SCBA President Elect)MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

HOW TO FILL OUT A BANKRUPTCYAPPLICATION

Thursday, July 16, 2009Learn the information you must solicit from clients and how toproperly complete and file the application.Faculty: Richard L. Stern, Esq. (Macco & Stern, LLP //Academy Dean)MCLE: 2 Hours (Skills) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

REPRESENTING STUDENTS & PARENTS

Tuesday, July 21, 2009How to handle a Superintendent’s Hearing and issues inSpecial Education will be covered in detail.Faculty: Hon. John Kelly (Family Court) – Moderator;Representative of the Long Island Advocacy Center

MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

FORMATION OF AN LLCTuesday, July 28, 2009

Detailed instructions on how to form a Limited LiabilityCompany, from the initial discussions with the business clientthrough formation of the operating agreement will be provided.Faculty: John R. Calcagni, Esq. (Haley, Weinblatt &Calcagni, LLP // Former Academy Dean) and Robert K.

Howard, Esq. (Hampton Bays // Former Academy Officer)MCLE: 2 Hours (Professional Practice OR Skills)[Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

CURRENT ISSUES IN CRIMINAL LAWThursday, July 30, 2009

This seminar will delve into a number of new issues confronting

criminal lawyers: mortgage fraud; changes in legislation; recentdecisions on suppression and ineffective assistance of counsel.Faculty: William T. Ferris, Esq. (Bracken & Margolin //Former Academy Dean) and Maureen McCormick, Esq.

(Suffolk D.A.’s Office)MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

HOW TO KEEP A REAL ESTATE DEAL FROM FALLING APART

Tuesday, August 4, 2009So much can happen between contract and closing. Gain point-ers for keeping the deal intact.Faculty:Gerard McCreight, Esq. (Bracken & Margolin, LLP //Academy Officer)MCLE: 2 Hours (Professional Practice)[Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

FORMING A CORPORATIONThursday, August 6, 2009

Gain new insights into corporation formation, shareholderagreements, and the like at this information-packed seminar.Faculty: Alex Gayer, Esq. and William Gartland Esq. (LazerAptheker, Rosella & Yedid, P.C.) // Robin Abramowitz, Esq.

(Academy Officer) - CoordinatorMCLE: 2 Hours (Professional Practice OR Skills) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

PRACTICAL POINTERS FOR PERSONAL INJURY PRACTICE

Tuesday, August 11, 2009Key issues and advice for lawyers handling negligence caseswill be disseminated.Faculty: Patricia M. Meisenheimer, Esq. (Bracken &Margolin // Immediate Past Academy Dean)MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

HOW TO RECOGNIZE DOMESTIC VIOLENCE IN A MATRIMONIAL CASE

Thursday, August 13, 2009Learn the signals indicating that your divorce client might be thevictim of domestic violence. Then, learn what to do about it.Faculty: Lynn Poster-Zimmerman, Esq. (Huntington //Academy Officer & SCBA Director)MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

BUILDING AN UNBREAKABLE FOUNDATION

Tuesday, August 18, 2009This trial skills program will provide valuable pointers for collect-ing and presenting evidence . . . and, in the process, buildingsuper-strong support for your case.Faculty: Ted M. Rosenberg, Esq. (Rosenberg & Gluck, LLP //Former Academy Officer)MCLE: 2 Hours (Skills) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

PROMISSORY NOTES & MEDICAID PLANNING

Thursday, August 20, 2009Learn how to use promissory notes to protect the assets ofelderly clients when sudden nursing home placement is neces-sary. Faculty: Richard A. Weinblatt, Esq. (Haley, Weinblatt &Calcagni, LLP // Former Academy Officer)MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet

OTHER SUMMER

SEMINARSPresented by the SCBA Professional

Ethics CommitteeA NIGHT AT THE MOVIES: ETHICS

ROUNDTABLEWednesday, July 15, 2009

The SCBA Ethics Committee popular Ethics Roundtable takeson a new format this year. The hypothetical questions for con-sideration will be drawn from movie clips (from The Verdict,Devil’s Advocate, My Cousin Vinny, A Civil Action, Justice forAll, and From the Hip). Much spirited discussion should be theresult! As in past years, small groups will debate the issues andreport their views to a reactive panel. Panel: Hon. W. Gerard Asher; Hon. Paul Baisley; Harvey

Besunder, Esq.; Hon. Michael Mullen

Moderator: John Bracken, Esq.

Coordinators: Justin Block, Esq. and Anthony LaPinta, Esq.

(Co-Chairs, SCBA Professional Ethics Committee)Movie Clips: Arthur E. Shulman, Esq. (SCBA Second VicePresident)MCLE: 3 Hours (Ethics) [Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30 a.m.)Location: SCBA CenterRefreshments: Movie Food!

(Popcorn, Hot Dogs, Candy . . . the works!)

Extended Lunch ProgramTHE NEW POWER OF

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

ATTORNEY FORMWednesday, August 5, 2009New provisions for power of attorney forms will take effect onSeptember 1, 2009. Major changes in both content and execu-tion affect durability, acknowledgments, provisions, etc., etc.This seminar will review the changes and discuss the ramifica-tions for how you handle client matters and what you must doto protect your own liability as “agent.” Don’t miss it!Faculty: Eileen Coen Cacioppo, Esq.; George Tilschner,

Esq. George Roach, Esq.

MCLE: 3 Hours (2 Professional Practice; 1 Ethics)

[Non-Transitional and Transitional]Time: Noon–3:00 p.m. (Registration from 11:30 a.m.)Location: SCBA Center Refreshments: Lunch Buffet

Lunch ‘n LearnINVESTMENTS 101

Wednesday, August 19, 2009These days, the media is filled with financial news, much of itsomewhat mind-boggling. If you, like many people, are notquite sure what a hedge fund is, or exactly what private equitymeans, or how derivatives came into being, this is the program

for you! Not only will you gain an understanding of investmentterminology, but you will increase your insight into the financialmarkets and the risks and potential rewards of a wide array ofinvestment possibilities. You’ll improve your ability to conversewith the “experts,” to answer client questions lucidly, and, mostimportant, to handle your fiduciary responsibilities prudently. Faculty: Howard Baker, Esq. (Former Senior Executive of theAmerican Stock Exchange)MCLE: 2 Hours (Professional Practice OR Skills) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch Buffet


Picture yourself in front of 27,000 New York lawyers.It’s a good place to be. Especially if your firm providesservices to the legal profession. Whether it’s lawyer-to-lawyer or business-to-business, your advertisement in ournetwork of legal publications puts your message in front ofmore than 27,000 attorneys, judges and legal professionalsin five metro New York and Long Island counties.

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5 P U B L I C A T I O N S

O N E C A L L !

THE SUFFOLK LAWYER —JUNE 2009 29

Academy Officers and Volunteers Launch New Administrative Year

A record number of attendees packed the SCBA board room as Rick Stern (cen-ter) led the first meeting of the new administrative year held June 12. While only afew participants appear in the photo – (clockwise from left) George Tilschner, RobinAbramowitz, Academy Executive Director Dorothy Paine Ceparano, TreasurerMike Brady, and Curriculum Co-Chair Eileen Coen Cacioppo – there was standingroom only for the officers, advisors, and volunteers who joined in a discussion ofupcoming programs and other Academy business.

Academy meetings are open to all SCBA members, and new participants arealways needed and always welcome. Meetings are held monthly (whenever possi-ble, on the first Friday), September through June, at 7:30 a.m. The meeting calen-dar for 2009-2010 is: Tuesday, September 15; Fridays, October 2, November 6,December 4, January 8 (2nd Friday), February 6, March 5, April 9 (second Friday),May 7, and June 11 (2nd Friday). Meetings end by 9:00 a.m., and a complimenta-ry breakfast buffet is served.

Why not calendar the dates and plan to be there as your schedule allows?

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Series really heats up with six more cut-ting edge lunch ‘n learns. On Tuesday,August 4, you will gain pointers to “Keepa Real Estate Deal from Falling Apart”in a presentation by new Academy OfficerGerard McCreight, an experienced realproperty lawyer with Bracken &Margolin. On Thursday, August 6, youwill learn what you need to know about“Starting a Corporation” in a seminarorganized by another new AcademyOfficer Robin Abramowitz, who hasrecruited experienced corporate attorneysfrom her firm, Lazer Aptheker, Rosella &

Yedid, PC. On Tuesday, August 11,Immediate Past Academy Dean PatriciaMeisenheimer will cover “Hot Issues inPersonal Injury Practice”; and onThursday, August 13, Academy OfficerLynn Poster-Zimmerman will address theissue of “How to Recognize DomesticViolence in a Matrimonial Case.”Finally, on Tuesday, August 18, experi-enced litigator Ted Rosenberg, a pastAcademy Officer and past SCBADirector, will provide trial pointers for“Building an UnbreakableFoundation.”

A Hot Spots seminar on “PromissoryNotes & Medicaid Planning” also will bescheduled, tentatively on August 20. Thepresenter is experienced elder law attorneyRichard Weinblatt, a member of Haley,Weinblatt & Calcagni, and a formerAcademy Officer and former SCBADirector.

Each of the Hot Spot seminars runs from12:30 to 2:10 p.m., with lunch and regis-tration from noon. Each provides twoMCLE credits.

The Academy’s summer syllabus alsoincludes three important programs beyondthe “Hot Spots Series.”

On the evening of Wednesday, July 15(6:00–9:00 p.m, with sign-in from 5:30),the SCBA Professional Ethics Committeewill present a three-credit ethics seminarentitled “A Night at the Movies.”Organized as a roundtable, like the com-mittee’s past, always popular presenta-tions, this program will discuss ethicalquestions and dilemmas as identified in aseries of movie clips. Coordinated byCommittee Co-Chair Justin Block, theprogram features a reactive panel of pres-tigious judges and attorneys, includingHon. W. Gerard Asher, Hon. Paul Baisley,Harvey Besunder, and John Bracken. Themovie footage was graciously organizedby SCBA Second Vice President ArthurShulman. Would-be attendees should notethat not only will the program providefood for thought, but fun and deliciousmovie food – i.e., popcorn, hotdogs, candy

. . . the works! The “New Power of Attorney Form”

will be dissected by experienced elder lawattorneys Eileen Coen Cacioppo, GeorgeTilschner, and George Roach on the after-noon of Wednesday, August 5 (noon to3:00 p.m., sign-in from 11:30 a.m.). Youwill learn what changes have taken placeand the significant implications for theway you handle client matters. ThreeMCLE credits will be awarded, includingone in ethics.

Finally, a luncheon program onWednesday, August 19, will help you tounderstand the financial news you readand listen to, and, in the process, help youto more prudently handle your fiduciaryduties. Former Academy Officer HowardBaker, an experienced securities lawyer,will present “Investments 101.” If you’renot quite sure what a hedge fund is, orwhat private equity means, or how “deriv-atives” came to be, this is the program foryou. The program runs from 12:30 to 2:10p.m., and will provide two MCLE credits.Bring questions!

All of the Academy’s summer programswill be held at the SCBA Center inHauppauge. For more information or toregister, see the CLE Centerspread of thispublication or the Academy’s summerpublicity mailings. You may also call theAcademy at 631-234-5588.

Note: The writer is the ExecutiveDirector of the Suffolk Academy of Law.

This Summer, Hit the Hot Spots with the Academy of Law(Continued from page 32)

Upon concluding that it had jurisdic-tion, the court considered the merits ofthe college’s petition. Recognizing thatthe trust instrument did not contain anyspecific directions as to the use of thefunds, the court explained that the grantormade an unrestricted gift as to purpose,but not duration. The court reasoned thata gift to an “endowment fund” in NewYork typically connotes a transfer to aninstitution’s permanent fund.Considering that the college had a“Permanently Restricted Fund,” the courtfound that the grantor intended to make agift to that fund and that the gift could behonored without the requested amend-ment. Accordingly, the court denied thecollege’s petition to modify the trust

instrument under EPTL 8-1.1.The cy pres doctrine, as codified in

EPTL section 8-1.1, is a useful tool foramending a will or trust instrument toeffectuate a testator or grantor’s generalcharitable intent in appropriate circum-stances. It should not, however, be usedas a mean toward avoiding the testator orgrantor’s instructions.

Note: Robert M. Harper is an associ-ate in the Trusts and Estates Departmentat Farrell Fritz, P.C.

1 EPTL § 8-1.1; Matter of Dowdall, 2009 N.Y.Slip. Op. 50845(U) (Sur. Ct., Kings County 2009).

2 Matter of Huntingdon College, 22 Misc.3d1124(A) (Sur. Ct., Nassau County 2009).

Trusts and Estates (Cotinued from page 13)

Jane LaCova and 4 past SCBA Presidents

Surrogate’s Court Committee end of the year dinner at LaStrada was attended by over 60members of the bar. Hon. John M. Czygier Jr., Hon Stephen L. Braslow, Jack Braslow, Esq.,Mary Kane, Esq. and Kurt P. Widmaier, Esq.

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FREEZE FRAME

THE SUFFOLK LAWYER —JUNE 200930

For the past two years, it has been a privilege and apleasure to serve as the Dean of the Suffolk Academy ofLaw. It is with a sense of fulfillment that the gavel ispassed to Dean Richard Stern, an attorney of integritywho will carry on the tradition of excellence that embod-ies the Academy. So much has been accomplished dur-ing the past two years, many friendships made and count-less outstanding programs presented to our members, thatI would like to reflect on those who made the last twoyears unforgettable.

The maxim “Justice through Knowledge” is the inspi-ration for the Academy of Law. In providing our col-leagues with exceptional CLE programs, the Academycontributes to the administration of justice and stimulatesa higher level of professional competency. During mytenure as Dean, the Academy continued to move forward,based on a heritage of excellence handed down by pastDeans, a tradition that was evident in the Officers andVolunteers whom I was so fortunate to work with andwho met many challenges, never wavering from theircommitment to provide the highest quality legal educa-tion. To all of you, I extend my deepest appreciation foryour encouragement during the endless hours of dynam-ic debate and meetings where the Academy’s vision wasalways the focus and goal. You embody the true mean-ing of collegiality and passion and are unsurpassed indistinction.

A special thanks to past Deans John Calcagni, BillFerris and Art Shulman for sharing your experience, yourperceptive wisdom and friendship. The illumination ofyour leadership enabled me to carry the torch to move theAcademy forward in its vision and I will always be grate-ful for the trust that you placed in me.

The fortitude and strength of the Academy is epito-mized in Executive Director, Dorothy Paine Ceparano,who unwaveringly shared her wisdom, astuteness, perse-verance and dedication to the interests of the Academy.Dorothy is truly the foundation upon which the Academystands and from which it gains its sustenance. For yourfriendship, encouragement and tireless efforts, you havegained my respect and admiration. It is your undeniableability to encourage the Officers and Volunteers to strivefor the most unique programs that inspire us all with pas-sion.

Friend and colleague, Harvey Besunder, commentedrecently that he would like to know how “to capture thepassion of the Academy.” The Academy embodies apassion in a sense of an unsurpassed enthusiasm forexcellence. Nothing is so contagious as enthusiasm, for itis the genesis of every great and magnificent moment.The passion of the Academy is embodied in a visionwhere collegiality, inspiration, creativity and a motiva-tion to deeply held values results in an unwaveringcourage to step forward and reach goals. Thank youHarvey, for your magnificent ideas which served as thebasis for many of the Academy’s preeminent programs.

The passion of the Academy is a vibrant, palpableenthusiasm that results in an endless quest for excellenceby the Academy Officers and Volunteers in continuallyexceeding that which has already been achieved, by tak-ing a seed of an idea from conception through to the pre-sentation of a well reasoned program that enhancesawareness of emerging issues and increases the compe-tency of the profession. Many thanks to CurriculumChairs Wende Doniger and Eileen Cacioppo, whoworked tirelessly on program development, always forth-coming with amazing ideas. The Academy thrives due tothe tireless efforts of Treasurer, Mike Brady and HowardBaker of the finance committee for judiciously ensuringthe Academy’s fiscal stability. The enthusiasm of theAcademy is apparent in the efforts of my ExecutiveCommittee, the Hon. John Kelly, Bob Howard, MikeBrady and Gail Blasie, who with so many talentedOfficers, gave of their time and expertise.

Special thanks to John Bracken, a true mentor andleader, and Linda Margolin, an inspiration to anyone whoaspires to excellence, for your one hundred percent sup-port to me as Dean and to the Academy and its principles.I was honored to have SCBA Presidents Jim Winkler andBarry Smolowitz graciously support the interests of theAcademy during their respective terms as President. Jimand Barry encouraged us, challenged us and brought outthe best in the Officers and Volunteers. The SCBA isfortunate in having Jane LaCova as Executive Director.Thank you Jane for always extending a helping handwhen it was needed. The passion of the Academy extendsto the incredible efforts of the support staff, Joy Ferrari,Nicolette Ghiglieri, Laura Latman and Melissa

McManaman who went above the call of duty on manyoccasions.

Words of appreciation are extended to the Hon. A. GailPrudenti, who never declined an invitation to address theAcademy, and always, with eloquence and dignity,encouraged SCBA members to give their best to the pro-fession. My heartfelt appreciation to the Hon. H. PatrickLeis and the many members of the Judiciary who servedas faculty during the past two years. You have given ourmembers a greater understanding of intricate issuesinvolved in fulfilling our professional responsibilities toensure justice for those we represent.

The vision of the Academy, “Justice throughKnowledge,” is based on the concept that justice is pro-tected and empowered by knowledge. The foundationupon which the Academy so successfully accomplishesits mission will persevere, for the passion of theAcademy is its drive toward excellence. I hope that Ihave left footprints in the sands of this passion, which insome small way contributed to maintaining the respectfor the dignity of the legal profession and respect for thefundamental principles of justice by passing on a tradi-tion of providing our members with the highest qualityprograms. To all whom I did not mention, but who con-tributed so much of your time and expertise, you havemade the past two years truly phenomenal!

A Parting Message from Academy

Dean Patricia Meisenheimer

As the month of May drew to a close,Patricia Meisenheimer completed twosuccessful terms as Academy Dean – twoyears during which she led the Academywith grace and exuded a palpable spirit ofencouragement and collegiality. In recog-nition of her accomplishments and dedica-tion, Academy officers and volunteershonored her with a “farewell party” heldat the Three Village Inn on the evening ofMay 27.

In a bid to the praise Dean Meisenheimeralways lavished upon the efforts of others(“phenomenal” was an adjective sheapplied often), the event was dubbed “ThePhenomenal Pat Party.” The evening,attended by colleagues, Academy staffers,and members of Pat’s family, was festive,fun, and highlighted by “original” musicalnumbers. Howard Baker and his wife Carolwrote new lyrics for “Personality” and“California Here We Come,” re-named,respectively, “Phenomenal” and“Meisenheimer You’re the One.”Everyone joined the “Phenoms” (partyplanners Rick Stern, Howard A. Baker,Eileen Cohen Cacioppo, John R. Calcagni,Dorothy Paine Ceparano, Cheryl F. Mintz,Sheryl L. Randazzo, Arthur E. Shulman,and Robert Wilk) in spirited, if not melod-ic, renditions of the songs.

The evening’s show-stopper, however,

was an original rap song, “Our Dean Pat,She’s So Phat” (“phat” meaning excellentin rap-speak) by the Academy’s formerdean, the usually conservative JohnCalcagni. Decked out in baseball cap(worn backwards, of course), tee-shirt,lots of bling, and sunglasses, Johnappeared as the “Notorious B.I.G. MnM.”All in attendance saw a new side of Johnas he rapped, “We come to roast Dean Pat.But don’t you know that

we can’t find nothin’ shady‘cause she’ssuch a classy lady. Big problems shemakes nominal–

as Dean she’s been phenomenal !” Thesong continued through five more versesof equally creative jive, all written in per-fect iambic pentameter! John was joinedby the Phenoms, re-named the “HardCandies” for this number, who attemptedto sing back-up with the refrain, “Yo, YoPat; she’s so phat. Yo, Yo, Pat; she’s all

that.” In addition to the “music,” the evening

included more serious tributes to Pat andher contributions to the Academy and theSuffolk Bar Association. With RickStern, the Academy’s new dean, as masterof ceremonies, the evening included a“SCBA Salute” by then SCBA PresidentJim Winkler; a “Trio of Toasts” byAcademy Executive Director DorothyPaine Ceparano and Curriculum ChairsEileen Coen Cacioppo and WendeDoniger; and “Collegial Comments” fromHarvey Besunder and John Bracken.

Throughout the evening, a slide showput together by SCBA Vice President ArtShulman ran in the background. Bringinghis creative talents to the task, Art com-bined true photos of Pat with her familyand at Bar and Academy events with aspoof of Pat as personal injury attorneyand rain-maker: i.e., he added Pat’s phototo a variety of famous scenes, includingthe sinking of the Titanic.

The festive evening, complete with bal-loons (inscribed with “Phenomenal Pat”),flowers, and presents, ended with aresponse from the always warm and gra-cious Pat who spoke of the rewards ofdeanship and thanked all with whom she“had the privilege to work.”

DPC

In Praise of the Phenomenal Pat

John Calcagni, AKA “The Notorious B.I.G. MnM,” extols Pat’s accomplishments in rap-speak.

Dean Pat Meisenheimer cuts into the party cake.

THE SUFFOLK LAWYER —JUNE 2009 31

ence to the roll of attorneys maintainedby each department of the AppellateDivision.

The OCA keeps track of lawyers byassigning a number to each lawyer. AnOCA number is not a Bar number. Rather,an OCA number is for internal record-keep-ing by the OCA. “Q: What is my New YorkBar number?,” available athttp://www.courts.state.ny.us/attorneys.

SSNs are extraneous to OCA adminis-tration. Use by the OCA, in its Privacy Act§ 7(b) notice, “in order to administer thecollection of revenue obtained from attor-ney registration fees[,]” is misleading.

The OCA states, in its Privacy Act §7(b) notice, “Social Security numbers willnot be made public.” That statement,which is in the negative, does not meet thePrivacy Act requirement that a § 7(b)

notice set forth the uses which will bemade of disclosed SSNs. It is likely thatthe OCA allows use of collected SSNs forcriminal matters, such as investigation,and allows use of collected SSNs for civilmatters, such as obtaining overdue child-support payments.

Absent a sufficient Privacy Act § 7(b)notice by the OCA, the requirement that alawyer disclose his SSN is unenforceable.

Should Judiciary Law § 468-b beamended to permit collection of SSNs bythe OCA for attorney-registration purpos-es? Seemingly, one more permissible col-lection of SSNs is not a big deal, inasmuchas there is a socialist, authoritarian regimein Albany, the little brother of the socialist,authoritarian regime in the District ofColumbia. Those regimes transformedSSNs into de-facto national-identity num-

bers.Moreover, involvements by governments

in the economy are indistinguishable fromfive-year plans. Taxes are confiscatory. Feesimple notwithstanding, a bureaucrat mayorder the transfer of real property from oneprivate owner to another. There are thirty ormore exceptions to the constitutional pro-tection against searches and seizures. Theconstitutional protections against self-incrimination and against eminent domainare colanders. Everybody is fingerprintedfor everything. Air passengers, like slaves,go beltless and shoeless. Men, women andchildren are strip-searched at the whims ofTSA drones. Arrests are called “stops.”Preventive detention is lawful.

Yet, one more permissible collection ofSSNs is a big deal. Liberty is lost in incre-ments; liberty must be regained in incre-

ments. There’s a long way to go. Liberty,and limited government which preservesit, have been chipped and blasted andsmithereened since March 4, 1933, to thepoint of nonexistence. Not even a decadewill suffice to repair over seven decades ofmisdirection of New York law, and ofmanipulation of United States law, and ofruination of American life. Yet, a startmust be made somewhere, and refusal ofuse of SSNs for attorney registration is asgood as any other.

Note: Stephen Kruger is an attorney thatno longer practices law. He is aresearcher and writer of law, history,geography and other subjects, for articlesand books. He lives and works in HongKong, in China and other places in the FarEast.

SSNs May Not Be Collected For Biennial Registration (Continued from page 25)

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THE SUFFOLK LAWYER —JUNE 200932

________________________By Dorothy Paine Ceparano

You won’t have to travel far this sum-mer to hit the hot spots – in continuinglegal education that is. Some of theAcademy’s best and brightest presenterswere asked to design programs aroundthe theme “Hitting the Hot Spots” – inother words, to identify issues they foundnew, important, or challenging in theirpractice areas. The result is a dozen or soenlightening lunch ‘n learn seminars youwill want to fit into your schedule thisJuly and August.

The series begins on Tuesday, July 14,with a presentation by SCBA President

Elect Sheryl Randazzo, an experiencedelder law attorney, on the “ProperExecution of a Will.” Do’s, don’ts, andhelpful guidelines will be disseminated.On Thursday, July 16, Rick Stern, experi-enced bankruptcy attorney and theAcademy’s new dean, will show atten-dees “How to Fill Out a BankruptcyApplication,” a presentation many of ourconstituents have requested.

During the second week of theAcademy’s summer semester, attentionturns to a topic attorneys in many areas ofpractice, and especially those in familypractice, find themselves confronting

from time to time. Organized by FamilyCourt Judge John Kelly and a representa-tive of LIAC (Long Island AdvocacyCenter), the program, scheduled forTuesday, July 21, will treat“Superintendent’s Hearings and Issuesin Special Education.” As practitionersknow, many large firms represent schooldistricts, but far fewer take on issuesfaced by students and parents. This pro-gram will provide helpful informationand insight should you find yourself upagainst an expertly represented district.

During the third “Summer Hot Spots”week, two more seminars will broadenboth your practice horizons and yourknowledge base. On Tuesday, July 28,“Formation of an LLC (through theOperating Agreement)” will be coveredby former Academy Dean John R.

Calcagni, a member of Haley Weinblatt& Calcagni, LLP. Known for his exper-tise in commercial and corporate law, Mr.Calcagni will help you to handle yournext business formation matter with con-fidence. Then, on Thursday, July 30, theseries turns to criminal law with a presen-tation on “Mortgage Fraud; Changes inCriminal Law Legislation; and RecentDecisions on Suppression andIneffective Assistance of Counsel,” top-ics of considerable importance to anypractitioner handling criminal matters.Presenters are past Academy Dean (andnewly elected member of the SCBAExecutive Committee) William T. Ferriswith Maureen McCormick from theSuffolk District Attorney’s Office.

In August, the Academy’s Hot Spots

At the Academy’s June meeting, the first of the 2009-2010 administrative year,SCBA President Ilenes S. Cooper (far left) swore in newly elected officers RobinS. Ambramowitz, Daniel J. Tambasco, Brian Duggan, and Gerard J. McCreight.They join a dedicated Academy managing board that also includes Gail Blasie,Michael S. Brady, D. Daniel Engstrand, Jr., Richard V. Rappaport, Wayne J.Schaefer, Robert G. Wilk, Nancy E. Ellis, Diane K. Farrell, Richard L. Filiberto,Allison C. Shields, John C. Zaher, Herbert (Skip) Kellner, Marilyn Lord-James,Lynn Poster-Zimmerman, George R. Tilschner, Hon. Stephen Ukeiley, andAcademy Dean Richard L. Stern. Elected to one year terms, the new Officers willbecome eligible for three year terms at the end of the year.

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.

July9 Thursday Curriculum Committee Meeting (Focus on Fall Programs).

5 p.m. All invited. Sandwich supper. (RSVP 631-234-5588)14 Tuesday Hitting the Hot Spots: Will Execution. Lunch ‘n Learn.

12:30–2:10 p.m. Sign-in and lunch from noon.15 Wednesday A Night at the Movies: Ethics Roundtable. 6:00–9:00 p.m.

Sign-in and “movie food” (hot dogs, popcorn, et al) from 5:30 p.m.16 Thursday Hitting the Hot Spots: Filling Out a Bankruptcy Application.

Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.21 Tuesday Hitting the Hot Spots: Students & the Law: Superintendents’

Hearings & Special Education Issues. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

28 Tuesday Hitting the Hot Spots: Forming an LLC (through the Operating Agreement). Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

30 Thursday Hitting the Hot Spots: Criminal Law: Mortgage Fraud; Legislative Changes; Decisions on Suppression & Ineffective Assistance of Counsel. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

August4 Tuesday Hitting the Hot Spots: Keeping a Real Estate Deal from

Falling Apart. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

5 Wednesday The New Power of Attorney Law. Noon to 3:00 p.m. Sign-in and lunch from noon.

6 Thursday Hitting the Hot Spots: Forming a Corporation. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

11 Tuesday Hitting the Hot Spots: Issues in Personal Injury Practice.Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

13 Thursday Hitting the Hot Spots: Recognizing Domestic Violence in a Matrimonial Case. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

18 Tuesday Hitting the Hot Spots: Trial Practice: Building an Unbreakable Foundation. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

19 Wednesday Investments 101. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

20 Thursday Hitting the Hot Spots: Promissory Notes & Medicaid Planning. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

September15 Tuesday Academy Meeting of Officers and Volunteers (Focus on the

Upcoming Academic Year). All invited. 7:30 a.m. Complimentary breakfast. (N.B. Meetings for the balance of the 2009-2010 year will be held on the traditional first or second Friday of the month.)

This Summer, Hit the Hot Spots

with the Academy of Law

New Academy

Officers Sworn In

More Academy Newson pages 29, 30;

CLE Course Listings on pages 26-27


ACADEMY OF LAW OFFICERS

Gail BlasieMichael S. BradyD. Daniel Engstrand, Jr.Richard V. RappaportWayne J. SchaeferRobert G. WilkNancy E. Ellis

Diane K. FarrellRichard L. FilibertoAllison C. ShieldsJohn C. ZaherHerbert (Skip) KellnerMarilyn Lord-James

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

DEANRichard L. Stern

Executive DirectorDorothy Paine Ceparano

li life calendar - scba suffolk lawyer — june 2009 3 by justice thomas f. whelan on friday, april...

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