THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION May 2015 www.nassaubar.org Vol. 64, No. 9 O F N OTE NCBA Member Benefit - I.D. Card Photo Obtain your photo for Secure Pass Court ID cards at NCBA Tech Center. Cost $10 June 3, 4 and 5, 2015, 9 a.m.-4 p.m. NCBA COMMITTEE MEETING CALENDAR See page 9 EVENTS NCBA and NAL INSTALLATION OF OFFICERS Tuesday, June 2 • 6 p.m. at Domus Details on page 6 ANNUAL BLOOD DRIVE Tuesday, June 16, 2015 1:30 - 7 p.m. at Domus Details page 6 ANNUAL COMMITTEE CHAIR MEETING Thursday, June 18, 2015 5:30 at Domus All 2015-2016 Committee Chairs and Vice Chairs are asked to attend NCBA BOARD OF DIRECTOR ORIENTATION Wednesday, June 24, 2015 12:30 p.m. at Domus All 2015-2016 board members are invited to attend NCBA DOMUS OPEN GOLF OUTING Eisenhower “The Red” Monday, June 22, 2015 Registration 12pm Shotgun Start 1pm Golf and BBQ - $195pp Special Price - Foursome $700 BBQ Only - $75pp 5:30pm at the Carltun See Insert to Register WHAT’S INSIDE FOCUS: MATRIMONIAL/FAMILY LAW/ ADOPTION Selling the Marital Residence in Divorce After the Taxpayer Relief Act of 1997 Page 3 Strategic Disqualification of Matrimonial Counsel Page 3 “Student First” and “SUNY Cap”: College Expenses in Divorce Page 5 The Right to, and Waiver of, Counsel in Family Court Page 5 Why Fight the Order of Protection? A Case for Expansion of Automatic Orders Page 7 GENERAL Sure About Your Surety? Determining Sufficiency with CPLR Article 25 Page 9 UPCOMING PUBLICATIONS COMMITTEE MEETINGS – OPEN TO ALL NCBA MEMBERS – Thurs., June 11 • Thurs., Aug. 13 12:45 at Domus Follow us on facebook LAW DAY 2015 AWARDEES By Joseph W. Ryan, Jr. The centerpiece of this year’s celebration of the 150th Anniversary of the Eastern District of New York --to be held on June 4, 2015-- will be the Alfonse M. D’Amato Courthouse located in Central Islip, Long Island. Opened in 2000, the 12-story and largest building on Long Island represents a monument to a thirty-four year campaign by Long Island lawyers, judges and legisla- tive officials to bring ready access to justice to a population of more than three million living on Long Island. 150 years ago the Brooklyn admiral- ty bar brought ready access to justice to Brooklyn from Manhattan when access to the courthouse in the Southern District of New York required practicing lawyers to navigate the East River by ferry which sig- nificantly impeded their ability to promptly secure from the court in rem seizure orders necessary to prevent vessel departures in financial disputes. The merits of their cam- paign convinced Congress and President Abraham Lincoln to establish the Eastern District of New York and appoint Charles Trail Blazing to the Central Islip Federal Courthouse When members renew their annual dues, committee membership will no lon- ger be automatically continued. In order to accurately update the records of the NCBA, members are asked to proactively select the committees on which they wish to serve each year. The good news is that there is no longer a limit on the number of committees a member may join. Members are also asked to indicate the type of setting they practice in - solo or small firm, large firm, in-house coun- sel, government lawyer, non-profit or retired. REMEMBER, if you do not renew your membership by July 13, your name may not appear in the committee listings in the 2015-2016 NCBA Directory. It’s Time to Renew Your NCBA Membership! See COURTHOUSE, Page 20 (Top) THOMAS MALIGNO PRO BONO ATTORNEY OF THE YEAR Jon Michael Probstein Pro Bono Attorney of the Year Jon Michael Probstein, his two children, Megan and Michael and NCBA First Vice President Martha Krisel. (Bottom, left) PETER T. AFFATATO COURT EMPLOYEE OF THE YEAR Brenda Hayden Brenda Hayden (center), Associate Court Clerk, Nassau County District Court, with Jaime Ezratty (l) and Evelyn Kalenscher (r). (Bottom, right) LIBERTY BELL Awardee Health & Welfare Council of Long Island Gwen O’Shea, President and CEO, Health & Welfare Council of Long Island, with Gale D. Berg, NCBA Director of Pro Bono Attorney Activities. (Photos by Hector Herrera)
Transcript
The Journal of The nassau CounTy Bar assoCiaTion
May 2015 www.nassaubar.org Vol. 64, No. 9
Of NOte NCBA Member Benefit - I.D. Card PhotoObtain your photo for Secure Pass Court ID cards at NCBA Tech Center. Cost $10 June 3, 4 and 5, 2015, 9 a.m.-4 p.m.
NCBA COMMITTEE MEETING CALENDARSee page 9
eVeNtSNCBA and NALINSTALLATION OF OFFICERSTuesday, June 2 • 6 p.m. at DomusDetails on page 6
ANNUAL BLOOD DRIVETuesday, June 16, 20151:30 - 7 p.m. at DomusDetails page 6
ANNUAL COMMITTEE CHAIR MEETINGThursday, June 18, 20155:30 at DomusAll 2015-2016 Committee Chairs and Vice Chairs are asked to attend
NCBA BOARD OF DIRECTOR ORIENTATIONWednesday, June 24, 201512:30 p.m. at DomusAll 2015-2016 board members are invited to attend
NCBA DOMUS OPEN GOLF OUTINGEisenhower “The Red”Monday, June 22, 2015Registration 12pm Shotgun Start 1pmGolf and BBQ - $195ppSpecial Price - Foursome $700BBQ Only - $75pp 5:30pm at the CarltunSee Insert to Register
What’S INSIdeFOCUS: MATRIMONIAL/FAMILY LAW/ADOPTIONSelling the Marital Residence in Divorce After the Taxpayer Relief Act of 1997 Page 3Strategic Disqualification of Matrimonial Counsel Page 3
“Student First” and “SUNY Cap”: College Expenses in Divorce Page 5The Right to, and Waiver of, Counsel in Family Court Page 5Why Fight the Order of Protection? A Case for Expansion of Automatic Orders Page 7GENERALSure About Your Surety? Determining Sufficiency with CPLR Article 25 Page 9
UPCOMING PUBLICATIONS COMMITTEE MEETINGS
– OPEN TO ALL NCBA MEMBERS –Thurs., June 11 • Thurs., Aug. 13
12:45 at Domus
Follow us on facebook LAW DAY 2015 AWARDEES
By Joseph W. Ryan, Jr.
The centerpiece of this year’s celebration of the 150th Anniversary of the Eastern District of New York --to be held on June 4, 2015-- will be the Alfonse M. D’Amato Courthouse located in Central Islip, Long Island. Opened in 2000, the 12-story and largest building on Long Island represents a monument to a thirty-four year campaign by Long Island lawyers, judges and legisla-tive officials to bring ready access to justice to a population of more than three million living on Long Island.
150 years ago the Brooklyn admiral-ty bar brought ready access to justice to Brooklyn from Manhattan when access to the courthouse in the Southern District of New York required practicing lawyers to navigate the East River by ferry which sig-nificantly impeded their ability to promptly secure from the court in rem seizure orders necessary to prevent vessel departures in financial disputes. The merits of their cam-paign convinced Congress and President Abraham Lincoln to establish the Eastern District of New York and appoint Charles
Trail Blazing to the Central Islip Federal Courthouse
When members renew their annual dues, committee membership will no lon-ger be automatically continued. In order to accurately update the records of the NCBA, members are asked to proactively select the committees on which they wish to serve each year. The good news is that there is no longer a limit on the number of committees a member may join.
Members are also asked to indicate the type of setting they practice in - solo or small firm, large firm, in-house coun-sel, government lawyer, non-profit or retired.
REMEMBER, if you do not renew your membership by July 13, your name may not appear in the committee listings in the 2015-2016 NCBA Directory.
It’s Time to Renew Your NCBA Membership!
See COURTHOUSE, Page 20
(Top) THOMAS MALIGNO PRO BONO ATTORNEY OF THE YEAR Jon Michael ProbsteinPro Bono Attorney of the Year Jon Michael Probstein, his two children, Megan and Michael and NCBA First Vice President Martha Krisel.
(Bottom, left) PETER T. AFFATATO COURT EMPLOYEE OF THE YEAR Brenda HaydenBrenda Hayden (center), Associate Court Clerk, Nassau County District Court, with Jaime Ezratty (l) and Evelyn Kalenscher (r).
(Bottom, right) LIBERTY BELL Awardee Health & Welfare Council of Long IslandGwen O’Shea, President and CEO, Health & Welfare Council of Long Island, with Gale D. Berg, NCBA Director of Pro Bono Attorney Activities.
(Photos by Hector Herrera)
2 n May 2015 n Nassau Lawyer
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COMMERCIALLY RICH BACKGROUND A SAMPLE OF CASES RESOLVED BY OUR COMMERCIAL PANEL
Nassau Lawyer n May 2015 n 3
Matrimonial/ Family Law & Adoption
By Lisa Knee and Jason HoffFor divorcing couples dealing with equitable dis-
tribution, a division of their marital assets can be a trying process filled with confusion, anger and mistrust. The reality is that for many, the marital residence is one of their major assets. Significant tax and transfer issues can arise if not addressed properly at the time of divorce. With proper planning and guidance, divorcing spouses can avoid many of the potholes and pitfalls generally associ-ated with a division of assets.
Prior to the Taxpayer Relief Act of 1997 (“TRA 1997”), gain on the sale of a principal residence could be postponed/deferred and rolled into a new residence of equal or great-er value, thereby postponing taxes on the gain. To be eligible for the postponement/deferral, the buyer of a new principal residence was required to complete the purchase within twenty-four months before or after the sale of the old home.
Before TRA 1997, the rollover of gains continued with each subsequent sale of a principal residence as long as there was at least two years between sales. Postponed gains were subtracted from the cost basis of the new home, lowering its tax basis. A one-time exclusion of gain up to $125,000 on the sale of a prin-cipal residence was available to taxpayers age 55 or older who owned and used a property as a principal residence for three of the five years prior to its sale.
TRA 1997 eliminated the requirement to post-pone gains on the sale of a principal residence, the requirements to purchase a replacement home and the one-time $125,000 exclusion available to those 55 and older. For sales or exchanges after May 6, 1997, taxpayers can now exclude up to $250,000 of gain on the sale of a principal residence if the home was owned and used as the principal residence for two of the last five years ending on the date of sale. Married taxpayers filing joint income tax returns can exclude gains up to $500,000. The two years of ownership
and use during the five-year period do not have to be continuous.
When filing a joint return, only one spouse is required to meet the ownership test; however, both spouses must satisfy the use test in order for both parties to qualify for the exclusion.
Taxpayers can generally only exclude gain from the sale of a principal residence once every two years. A taxpayer who fails to qualify for the $250,000 or $500,000 exclusion, you still may qualify for a reduced exclusion if the sale of the home is due to a change in place of employment, health or unforeseen circumstances.
Adjusted Basis Before and After 1997While the postponement/deferral of
gains was eliminated with TRA 1997, the basis of a divorcing couple’s marital residence may still be impacted by the adjusted cost basis rules pre-viously in existence.
It would be easy to assume that a principal res-idence with a current value of $1,150,000 and a purchase price of $1,000,000 has a potential gain of $150,000.Given this gain is under both the $500,000 joint and $250,000 single exclusion amounts and knowing the home had been owned and used as a principal residence for two out of the last five years, one may simply assume there should be no capital gain on the sale. However, what if this home was purchased prior to May 7, 1997 and there had been a number of homes previously owned and used as a principal residence? Would knowing this information change the answer?
A principal residence purchased prior to the enact-ment of TRA 1997 may still include the rollover of gains from the sales of prior homes. This may signifi-cantly alter the tax basis of the principal residence, increasing the potential for capital gains. Therefore, in extended marriages, it is important to inquire when the principal residence was purchased and if the
adjusted basis of the home is subject to the old rollover of gain rules.
For example, H and W are married. H owned several homes prior to the enactment of TRA 1997, as shown in the Table below. The original home, pur-chased in March 1991, had a basis of $200,000 and was sold for $300,000. A second principal residence was purchased for $500,000in April 1994 and later sold for $750,000. The current residence, also acquired prior to TRA 1997, was purchased for $1,000,000. Its current value is $1,150,000.
As shown, the adjusted tax basis of the current principal residence is $650,000 with a potential capi-tal gain of $500,000. This is materially different than if the home had been purchased under the post-TRA 1997 rules and the basis was equal to the current purchase price of $1,000,000 and a potential capital gain of $150,000.
Selling the Marital Residence in Divorce After The Taxpayer Relief Act of 1997
Lisa Knee
By Kenneth J. Weinstein and Michael J. Langer
Rule 1.18(a) of the Rules of Professional Conduct defines a person who discusses the possibility of forming a client-lawyer relationship with an attorney respecting a matter as a “pro-spective client.” That rule, however, is then modified by Rule 1.18(e)(2), which instructs that a person who commu-nicates information unilaterally to a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter is not a prospective client. The question becomes whether there is a duty of inquiry when the conflict situation aris-es to determine if the consultation was pretextual. Proving a client’s intentions in the consultation is challenging, leav-ing the issue of disqualification unset-tled.
Practitioners in the matrimonial realm know the disqualification risk only too well. A spouse (often one with substantial assets) may interview many different attorneys to intentionally cre-ate a purported conflict in the hope it leaves the opposing spouse without the ability to hire an otherwise available,
competent and respected attorney by virtue of the claimed “conflict” created by that consultation. Since such an interview may be entirely earnest and appropriate, it remains unclear when a true conflict is created. The burden to prove that there is no conflict will most assuredly fall on the challenged attorney.
Whether or not a true or strategic conflict exists in any given situation must be determined on an ad hoc, case-by-case basis, with a fact sensitive analysis conducted. The high level of importance attached to an attorney-cli-ent relationship and the sanctity of a party’s right to choose counsel must be balanced against the appearance of impropriety.1
Discerning Strategic DisqualificationThe difficulty in resolving these
issues is exemplified in the Appellate Division, Second Department’s most recent decision on the subject, Cohen v. Cohen, in which the Court itself could not come to a unanimous decision, resulting in a lengthy and well-rea-soned dissent discussed below.2
The following is the general rule on the issue of disqualification:
A party seeking disqualification of its adversary’s lawyer must prove: (1) the existence of a prior attorney-cli-ent relationship between the moving party and opposing counsel, (2) that the matters involved in both repre-sentations are substantially related, and (3) that the interests of the present client and former client are materially adverse. Due to the signif-icant competing interests inherent in attorney disqualification cases, however, the Court of Appeals has advised against mechanical appli-cation of blanket rules, in favor of a careful appraisal of the interests involved. In that respect, a party’s
entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted.3 The former Code of Professional
Responsibility did not contain a disqual-ification provision expressed as in Rule 1.18. Evidently, the intent of Rule 1.18 was to squarely address the increasing frequency of conflict claims arising from strategic consultations.
Yet, courts addressed this strategic litigation tactic even before and without Rule 1.18. Denials of disqualification were often based upon the rule that financial information communicated in consultation or during the prior rep-resentation could not be confidential since discovery in matrimonial cases is broad, extensive and compulsory, with a searching exploration of each other’s financial affairs the norm, not the exception.4 The cases also exalted the sanctity of a litigant’s ability to be represented by counsel of his or her choosing.
In Lucci v. Lucci, the husband sought disqualification of the wife’s attorney on the ground the attorney previously
Strategic Disqualification of Matrimonial Counsel
Transaction #1Purchase Price (March ‘91) $200,000
Sale Price 300,000Basis (200,000)Gain on Sale $100,000
Transaction #2
Purchase Price (April ‘94) $500,000Postponement of Gain (100,000)Adjusted Basis 400,000Sale Price 750,000Adjusted Basis (400,000)Gain on Sale $350,000
Transaction #3
Purchase Price (June ‘96) $1,000,000Postponement of Gain (350,000)Adjusted Basis 650,000Current Value 1,150,000Adusted Basis (650,000)Potential Gain on Sale $500,000
(If PurchasedAfter May ‘97and Sold Today)$1,150,000(1,000,000)$150,000
See RESIDENCE, Page 6
Kenneth J. Weinstein
Michael J. Langer
See COUNSEL, Page 21
4 n May 2015 n Nassau Lawyer
PresidentJohn P. McEntee, Esq.President-ElectSteven J. Eisman, Esq.First Vice PresidentMartha Krisel, Esq.Second Vice PresidentSteven G. Leventhal, Esq.TreasurerElena Karabatos, Esq.SecretaryRichard D. Collins, Esq.Executive DirectorKeith J. Soressi, Esq.
Editor-In-ChiefChristopher J. DelliCarpini, Esq.Associate EditorAllison C. Shields, Esq.Editor/Production ManagerSheryl Palley-EngelAssistant EditorValerie ZurblisNCBA Director of Marketing and PRPhotographerHector Herrera
Focus Editors of the MonthNancy E. Gianakos, Esq.Matrimonial/Family Law/ Adoption
Upcoming 2015 Focus IssuesJune– Health Care LawJuly/August– Elder Law/ Trusts & EstatesSeptember– Real Estate/ Municipal Law
Committee EditorsChristopher J. DelliCarpini, Esq., ChairAllison C. Shields, Esq., Vice ChairRhoda Y. Andors, Esq. Deborah S. Barcham, Esq.Gale D. Berg, Esq.Sean E. Campbell, Esq.Deanne Marie Caputo, Esq.Ellin Regis Cowie, Esq.Marc G. DeSantis, Esq.Anthony J. Fasano, Jr., Esq.David J. Friedman, Esq.Nancy E. Gianakos, Esq.Michael R. Gionesi, Esq.Robert S. Grossman, Esq.Sharon Kovacs Gruer, Esq.Adrienne Flipse Hausch, Esq.Kristina S. Heuser, Esq.Charles E. Holster III, Esq.Arielle S. Howe, Esq.Anthony F. Iovino, Esq.George M. Kaplan, Esq.Kenneth J. Landau, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Dennis M. Lyons, Esq.Cheryl Y. Mallis, Esq.Angelica Marie McKessy, Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.Marian C. Rice, Esq.Daniel W. Russo, Esq.Rayne M. Sassower, Esq.Michael A.H. Schoenberg, Esq.Meryl D. Serotta, Esq.Thomas G. Sherwood, Esq.Christina H. Singh, Esq.Andrij V.R. Szul, Esq.David Torreblanca, Esq.Eric Anthony Zeni, Esq.
Published by Long Island Business News (631) 737-1700; Fax: (631) 737-1890
Every year, the American Bar Association hosts a three-day “Bar Leader” conference in Chicago for incom-ing presidents of state and county bar associations, offering a variety of presentations on bar-related topics. When I received my invitation last year I assumed the conference would be of limited value, but who could turn down a trip to the Windy City in early March?
Three presentations deserve mention. The first was “Writing Your President’s Column.” I didn’t see the immediate value of the presentation, but the alternative for that time slot was a workshop on stress manage-ment through meditation and introspection. Not being a big fan of meditation and having spent my career carefully avoiding intro-spection, I opted for the writing workshop. The presenter began with a rather deflating observation for all of the gathered would-be presidents, which is that few people actu-ally read the president’s column. At best, he said, you might get a quick scan. The presenter noted that president’s columns typically focus on recent events at the asso-ciation, a topic of limited interest to many readers, and suggested focusing instead on topics of more general interest. I took that advice, perhaps to the puzzlement of some, and learned a few things along the way.
The second presentation was on social media. The speakers emphasized the grow-ing importance of social media, and urged attendees to connect with their members through Facebook and Twitter. I was told my associ-ation’s members wanted to know what I was thinking and doing, which struck me as rather unlikely, and that by establishing a presence on Facebook and Twitter during my term as President I would position myself as a “thought leader.” Despite the speakers’ enthusiasm
I wasn’t persuaded this was a good idea. Some of my reluctance was borne of humility, for on the few occa-sions I would be doing something of mild importance I thought it would be immodest or imprudent to broadcast it. Most of my reluctance, though, was borne of fear. I was concerned with the conclusions the membership might draw upon learning my typical lunch routine did not involve discussions of important legal matters with movers and shakers at notable restaurants but rather eating a sandwich from the RXR Plaza cafeteria at my desk while wrestling with difficult decisions regarding my overdue time sheets (did I spend one-tenth of an hour on that call or was it two?).
The third presentation was on bar association financ-es. I was particularly interested in this program. And I was not alone, as it drew a standing-room-only crowd. With the drastic drop in law school enrollments, I and many others were concerned about how the reduced flow of newly-admitted lawyers would affect bar association finances. The central theme of the presentation was that the drop in law school enrollment was not tempo-rary, and that bar associations needed to take steps now to position themselves for declining membership rolls.
Aside from these concerns common to all bar asso-ciations, I knew when I became President that our Association had a more immediate concern, that our home, Domus, needed significant repairs and lacked the money to pay for them. As a result, in my first week as President I asked the Board of Directors to raise dues. Soon thereafter, I effected a reduction in Association staffing.
I know some members of the Association thought these were bad decisions—that point was made clear to me on a number of occasions. But, I saw no alter-
native. Combined, they will generate the cash flow required for the monthly install-ments on the $1,500,000 mortgage loan the Association is taking to make repairs in a like amount. And yet, more work on Domus must be done, for in the next five years or so the Association must make an additional $750,000 in repairs, including the refur-bishment and replacement of windows and HVAC equipment. Although raising the money for these repairs will be a challenge for the Executive Committee and the Board of Directors during the next few years, I am confident they are prepared to meet this challenge.
Several of our members received well-de-served recognition this year. The Hon. Peter Skelos received the President’s Award for his leadership in fashioning a solution to lost funding for one of the most important
programs of the Association, the Lawyers Assistance Program. Director’s Award winner Rosalia Baiamonte did an outstanding job leading the Judiciary Committee in performing its critical role of evaluating the suitabil-ity of prospective candidates for judicial office. Jon Michael Probstein received the Thomas Maligno Pro Bono Attorney of the Year Award for his exemplary work providing pro bono legal services to the indigent in our community. And, Past President Peter H. Levy, the Co-Chair of the We Care Fund, is a deserving recip-ient of the Frank J. Santagata Past President Award, as there is no member of the Association who is more universally respected or dedicated to the Association.
I conclude with a few expressions of gratitude.First, I was fortunate to have the support of a dedi-
cated Executive Committee, comprising President-Elect Steve Eisman, First Vice President Martha Krisel, Second Vice President Steve Leventhal, Treasurer Elena Karabatos, Secretary Rick Collins, and Immediate Past President Peter Mancuso. Each is a talented, hard-working lawyer committed to the Association, and collectively were a tremendous source of wisdom and guidance throughout the year.
Second, I am grateful to Keith Soressi for his dedica-tion and good work as Executive Director. He was in the difficult position of replacing an icon at the Association, the beloved Deena Ehrlich, and has done so ably.
Third, I am grateful to the staff of the Association. Each year the staff is asked to do more with fewer resources, and it does so terrifically and without com-plaint. When you need to schedule a committee meet-ing, a clinic, or a CLE program, or need to organize an event, the staff works behind the scenes to ensure everything goes smoothly.
Fourth, I am grateful to my partners and colleagues at Farrell Fritz. I am fortunate to work with such a wonderful and talented group of lawyers and staff who challenge me every day to be a better person and a bet-ter lawyer. I couldn’t think of a better place to practice law.
Finally, I close my last President’s Column the way I closed my first, by thanking the membership for the privilege of serving as the 112th President of the Nassau County Bar Association. I will be forever grate-ful for this honor.
The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York State lawyers. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.
SOME PARTING THOUGHTS
From the PresidentJohn P. McEntee
Although raising the money for these repairs (for Domus) will be a challenge for the Executive Committee and the Board of Directors ... I am confident they are prepared to meet this challenge.
Correction NoticeDue to an error by the Publisher, the 2014 Access to Justice Pro Bono Honoree listing did not appear in the April 2015 issue. The entire listing of the Pro Bono Honorees is on page 8 in this issue.
Nassau Lawyer n May 2015 n 5
Matrimonial/ Family Law & Adoption
By Jane K. CristalA four-year college education, including room and
board, at a private school currently costs an average of $42,419 per year. A public out-of-state college currently costs an average of $32,762 per year, and a public in-state (SUNY) educa-tion currently costs an average of $18,943 per year.1 Given these extraordinary costs, attorneys have for decades followed the practice of urging clients to negotiate college clauses for high-school-aged children in the stipulations settling divorce actions.
While parents would generally agree to pay for their children’s college education, they would opt to cap their respective obliga-tions at the cost of an in-state public college or university, commonly referred to as the “SUNY cap.” Absent a specific agreement by parents to cap their financial obligation, Domestic Relations Law § 240(1-b)(c)(7) provides the courts the power to direct parents to contribute to a child’s college education based on the “circumstances of the case and the parties, the best interests of the child and the requirements of justice.” Case law has held that among the factors courts should consider are the ability of the parties to foot the bill for college, their children’s previous academic history, any special needs they have as students and the type of colleges the parents themselves attended.2
“Student First” Trumps “SUNY Cap”Thus, the SUNY cap is not a mandated tenet of
matrimonial law. Indeed, to formulate the SUNY cap into a rule of law would, absent agreement or special circumstances, limit the parents’ financial obligations
for a student’s college education, and, therefore, be inconsistent with DRL § 240(1-b)(c)(7).3
Further, a SUNY cap rule would be contrary to New York’s decidedly “Student First” policy. New
York’s “Student First” policy requires finan-cially capable parents, in the absence of a contrary agreement by the parents, to contribute to the higher education of chil-dren who are qualified students.4 New York’s “Student First” policy has resulted in appellate determinations denying a par-ent’s request to cap parental costs at the SUNY cost because of the child’s capabili-ties, the parental college experience and the parent’s ability to finance a private school.5
Notably, the court in one case acknowledg-ing (among other things) the “Student First” policy refused to cap a father’s contribution at the cost of SUNY Binghamton for his son, who attended Syracuse University. The
court reasoned that while “[t]he SUNY system . . . is widely regarded as one of the best large-scale systems of higher education that has ever been created, be it public or private[,] . . . . there is one thing the SUNY system should not be. . . . [T]he SUNY system should not be the assumed destination of the children of divorce.”6
While there is no case law holding that a court has the authority to override an agreement wherein the parents expressly and clearly provide for a SUNY cap, courts have relied on New York’s “Student First” policy to interpret the parents’ contract language broadly so as to require parents to bear more of the financial burden of paying for college than may have been intended.7 It is this “Student First” policy which, when applied by the courts in interpreting parents’ agreements employing a SUNY cap, may render the
SUNY cap, if not meticulously drafted, a more arbi-trary and capricious standard than parents intended.
For example, unless the parents’ agreement unam-biguously provides that already-accumulated funds in specifically identified college savings accounts are to be credited against the parental contribution, the parental SUNY-capped contribution is not reduced by these college accounts.8 Thus, absent specific lan-guage sanctioning the use of college savings accounts to reduce parental contributions, a court may rely upon the “Student First” policy to hold that the college savings accounts inure solely to the benefit of the stu-dent who may have chosen to attend a more expensive private college, expenses for which will likely exceed the parents’ SUNY-capped contribution.
Reducing Parents’ Obligations?Furthermore, student loans taken by the child will
not reduce the parents’ contributions to the SUNY cap unless the agreement very clearly and specifically so provides. Courts have required parents to pay for stu-dent loans incurred by the child under the “Student First” policy.9
In Rashidi v Rashidi, the Second Department held that parents were liable to repay any loans incurred by their son, despite the fact that the Judgment of Divorce applied a SUNY cap. Student loans under-taken to attend a private university may equal or exceed the SUNY cap sum. Therefore, parents may ultimately be responsible for the total cost of a private university unless the agreement is carefully drafted so as to include any loan sums as part of the parents’ SUNY-capped obligation.
If the language of an agreement does not expressly
“Student First” and “SUNY Cap”: College Expenses in Divorce
Jane K. Cristal
By Adam E. SmallThose who regularly practice in
Family Court are familiar with the frustrations that can sometimes ensue upon the prospect of litigating a case or multiple cases against a pro se party. Of course, self-represented litigants are not unique to the Family Court, although their prevalence is perhaps nowhere greater. The difficulties encountered in dealing with pro se litigants are obvi-ous, and arguably infinite; however, the challenges facing attorneys and the bench in such circumstances are compounded in the Family Court by the inherent sensitive nature of the matters heard therein.
The below survey of the law is just that, a broad perspective of the statuto-ry and case law authorities respecting the self-represented in Family Court. It is by no means exhaustive, but instead meant to be a jumping-off point for potential, future legal research on the issue if needed by counsel.
The Right to Proceed Pro SeCPLR § 321(a) is the statute which,
in most general terms, confers on indi-viduals the right to represents them-selves, pro se, in our state courts, as well as explicitly ensuring, at the same time, the right to representation by counsel, if they so choose, in any action, including, of course, Family Court spe-cial proceedings.
This statute merely codifies the long-standing principle in New York that one almost always has the right to
represent themselves before a court and forego the assistance of an attorney.
Court’s Obligation to Inform Matters litigated in Family
Court fall into two catego-ries: (1) matters wherein the appointment of assigned counsel is permissible, if the litigant financially qualifies; and (2) those matters where-in court-appointed counsel is not authorized by statute. Of coursÔe, as mentioned above, in all matters an individual is entitled to waive representa-tion of private or public coun-sel and proceed on their own.1
The Family Court Act sets out a laundry list in section 262 of the types of proceedings in which a litigant is entitled to court-appointed counsel. These include, but are not limit-ed to, respondents in neglect, paternity, willful violation, parental termination, and juvenile delinquency proceedings, as well petitioners and respondents in family offense proceedings, just to name a few.
When litigants in these matters first appear, it is incumbent upon the court to advise them that they “have the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have coun-sel assigned by the court in any case where he or she is financially unable to obtain same.”2 The failure of the court
to advise litigants of their rights under FCA § 262 is a basis for reversal of that particular matter.3
In other Family Court matters when court-appointed counsel is not permitted
by statute, the undersigned, nevertheless, as I believe all judges and support magis-trates in the Nassau County Family Court, advise liti-gants of their right to adjourn for a private attorney or to proceed pro se.
Waiver of CounselWhen a litigant appears
before the Family Court and expresses a desire to proceed self-represented, the court should, in the first instance, be skeptical of such choice
for obvious reasons. The most glaring reason is that that individual will be at a distinct disadvantage if counsel represents the other side. Most who seek to proceed pro se under this cir-cumstance will not even recognize this disadvantage until pointed out to them by the court.
When faced with a litigant who states their intention of proceedings pro se, it is the duty of the court to make certain that such waiver is made “knowingly, intelligently and voluntarily.”4
Interestingly, where a litigant waives the right to counsel, the court may not force appointed counsel upon him or her either. As stated above, a litigant has the statutory right to represent them-
selves, without the aid of counsel, and the denial of such constitutes reversible error.5
“A waiver is the ‘intentional relin-quishment of a known right with both knowledge of its existence and an inten-tion to relinquish it.’ “6The waiver of counsel must be “explicit[].”7 Therefore, the court must engage the litigant in a colloquy of sufficient substance to enable it to conclusively determine that the litigant understands the right to counsel and the explicit relinquishment of that right.
To such end, the court is required to engage in a “searching inquiry” into whether the litigant understands his or her rights under FCA § 262 and the explicit waiver of such rights. For an effective colloquy, and in conformance with case law precedent, the searching inquiry should include questions per-taining to the party’s age, education, and experience with the court system, etc. “Although there is no ‘rigid formula’ as to the questions the court needs to ask for counsel waivers, there must be a showing that the party ‘was aware of the dangers and disadvantages of pro-ceeding without counsel.’”8
Standard to Which Pro Se Litigant Held
The Second Department makes clear, consistent with the other Departments, that a litigant proceeding pro se acquires no greater right than any other liti-gant.9
The Right to, and Waiver of, Counsel in Family Court
Adam E. Small
See COLLEGE, Page 15
See FAMILY COURT, Page 17
6 n May 2015 n Nassau Lawyer
Discussions with clients, and, if pos-sible, their tax preparers, can avoid an incorrect determination of gain on the principal residence. A taxpayer is required to keep records proving the basis for homes sold as long as they are needed for tax purposes. IRS Publication 523, Selling Your Home, provides a list of documents that can be requested to determine a taxpayer’s adjusted basis including:
• Proof of the home’s purchase price and purchase expenses;
• Receipts and other records for all improvements, additions and other items that affect the home’s adjusted basis;
• Any worksheets or other computa-tions used to figure the adjusted basis of the home sold, the gain or loss on the sale, the exclusion and the taxable gain;
• Any Form 2119, Sale of Your Home, filed to postpone gain from the sale of a previous home before May 7, 1997; and
• Any worksheets used to prepare Form 2119, such as the Adjusted Basis of Home Sold Worksheet or the Capital Improvements Worksheet from the Form 2119 instructions, or other source of computations.
Special Ownership and Use Rules for Divorced Taxpayers
There are special rules related to the ownership and use period for divorced taxpayers. These rules make it easier to qualify for the $250,000 or $500,000 capital gain exclusion on the sale of the principal residence after divorce.
Ownership: If the home was trans-ferred to one spouse (or former spouse, if the transfer was incident to divorce) by the second spouse, the first spouse is considered to have owned it during any period of time when the second spouse owned it.1 For example, in the above illustration H owns a princi-pal residence for over two years. If H and W were getting divorced and title to the principal residence was to be transferred to W, then W will meet the ownership test based on H’s ownership period. If W meets the use test (lived in residence for two of the last five years) and has not used the exclusion within the last two years, W would qualify for the $250,000 exclusion even though W has not owned the home for the two-year period.
Under this example, the potential gain referenced above was $500,000; therefore an available exclusion of $250,000 would reduce the potential gain on the sale to $250,000. Gain on the sale of this residence would be included on W’s income tax return, as she is the sole owner of the property after the divorce.
Use: A spouse is considered to have used property as his or her main home during any period when one spouse owned it, and the former spouse was allowed to live in it under a divorce or separation instrument and used it as his or her main home.2
For example, H and W jointly owned the principal residence referenced above. The divorce instrument provides for W to use the residence for a period of five years. At the end of the five-year period, the home will be sold, with pro-ceeds split evenly to each party. Both H and W will be able to use their $250,000 exclusion. Although H will not have lived in the residence for two of the last five years, he is able to qualify under
the use period of the occupying spouse.Under this example, the potential
gain referenced above was $500,000 and $250,000 is allocated to each party. H and W each qualify for the $250,000 exclusion and therefore the potential capital gain will be $0 for both H and W.
3.8% Federal Medicare Contribution Tax
In 2013, the federal Medicare Contribution Tax, a new 3.8% tax on net investment income,was instituted. The tax applies to individuals, estates and trusts. For individuals, the tax only applies if Modified Adjusted Income (“MAGI”)3 exceeds:
• $250,000 if married filing jointly• $200,000 if single or head of house-
hold• $125,000 if married filing sepa-
rately.The 3.8% tax applies to the lesser of
net investment income or the amount of MAGI in excess of the thresholds listed above ($250,000, $200,000 or $125,000).
In general, investment income includes, but is not limited to interest, dividends, capital gains, rental and roy-alty income, non-qualified annuities, income from businesses involved in trading of financial instruments or com-modities and businesses that are pas-sive activities to the taxpayer. 4Capital gain on the sale of a principal residence qualifies as net investment income. Depending on other income and the size of the gain, a taxpayer may be pushed above the MAGI thresholds and become subject to the Medicare Contribution Tax as a result of the sale of the resi-dence.
For example, under the ownership example above, W has a potential gain on the sale of the principal residence of $250,000. Without considering any other income of W, $50,000 ($250,000 gain less $200,000 threshold amount) will be subject to the 3.8% Medicare Contribution Tax. In the use scenario above, where both H and W retained ownership and split the proceeds, 100% of the gain was eliminated with the sale of residence exclusion and therefore no additional income is subject to the Medicare Contribution Tax as a result of the sale.
ConclusionDealing with the disposition of the
marital residence either outside of divorce or as a result of a divorce requires significant planning. It is important to consider the tools and options available to a divorcing cou-ple before settlement negotiations or court-ordered transfers as a result of equitable distribution are finalized, to minimize the confusion and help edu-cate the parties and their respective counsel of the financial impact from both a tax and equitable distribution perspective.
Lisa Knee is a Tax Partner with EisnerAmper LLP, assisting high-net worth individuals and family/owner-managed business clients on methods to preserve and enhance business and family net worth as well as business succession planning for multigenerational families.
Jason Hoff is a Director in EisnerAmper LLP’s Disputes and Investigations Group, specializing in dispute consulting and inves-tigative accounting services over a wide vari-ety of areas including matrimonial disputes for high net worth individuals.
1 IRS Publication 523, Selling Your Home.2 Id.3 In most cases, Modified Adjusted Income (MAGI) will
equal a taxpayers Adjusted Gross Income (AGI).4 Questions and Answers on the Net Investment Tax,
www.irs.gov.
RESIDENCE ...
Continued From Page 3
Nassau Lawyer n May 2015 n 7
Matrimonial/ Family Law & Adoption
By Nancy E. GianakosAnger, abuse and aggression are an unfortunate
corollary of the modern marital breakup. Far too often, spouses find themselves on the wrong side of an order of protection. It is not atypical as matrimo-nial tensions mount for cross petitions for protection orders to be filed.
The more serious offenses may trigger a “stay away” order whereby the offender is required to vacate the marital residence pending the determi-nation of the order or longer. Sometimes rather than defend an order, the alleged aggressor consents to the entry of an order to avoid the cost of litigation, lost time from work or simply because of remorse. However, before deciding to settle an application for an order of protection, serious consideration should be given to the negative consequences that may follow the alleged aggressor long after the termination of the order.
The After-Effects of An Order of ProtectionThose consequences were the focus of the Court of
Appeals in the recently decided matter of Veronica P. v Radcliff A.1 In September 2009, Veronica A. filed a Family Court petition pursuant to Article 8 of the Family Court Act seeking an order of protection alleging that her nephew, Radcliff A., had assaulted and harassed her in her apartment (where he stayed frequently).2 A hearing was held, witnesses called, and an oral decision was rendered by the trial court on February 4, 2011 finding the respondent guilty of
family offenses. Respondent was ordered to stay away from the petitioner’s home and to refrain from com-mitting assault, harassment, stalking and certain other offenses against his aunt.3
Respondent appealed. However, while the appeal was pending, the order expired. As a result, the Appellate Division (First Dept.) in a unanimous decision deemed the matter moot and dismissed the appeal. The Court of Appeals granted leave to appeal. The issue before the Court was whether the termination of the order rendered the appeal moot and subject to dismissal.
Citing its decisions since 1980, the Court of Appeals held that if the rights of the parties are directly affected by the determi-nation of the appeal, that is, the impact is direct, not speculative, and the consequence of the judgment, immediate not inchoate, then the expiration of the order does not moot the appeal.4 The Court then analyzed the “significant enduring consequences” of this particular type of order upon this appellant, for which he may be relieved if the Appellate Division were to permit his appeal.
The Court specifically delineated the enduring legal and social consequences of an order of protec-tion rendering such an order susceptible to appel-late review. They opined that an order of protection suggests the respondent committed a family offense and that in a future criminal or Family Court pro-ceeding, the court may in its discretion rely thereon in “enhancing a sentence” or supporting an “adverse
civil adjudication” against the respondent. The order may also be used to impeach respondent’s credibility
in a future legal matter5. The order may remain in police computer databases possibly
subjecting the respondent to heightened scrutiny and increasing likelihood of arrest. The Court goes on to describe the pariah effect of being labeled “a family offender” or “domestic violence offender.” The stigma of such an order was not lost upon this Court.
In this age of instant messaging, scan-dalous news travels in a nanosecond to the public at large including business contacts and social acquaintances. The Court noted the implications of such an order upon the respondent in future job interviews and that the respondent may be under some ethical or legal obligation to answer
affirmatively to the existence of such an order dimin-ishing his prospects for hire. (In the familial setting, an “unemployable” respondent may inure to the det-riment of the entire family’s well–being, as reflected in respondent’s diminished support contribution or worse, an inability to pay, compounding the stress and anxiety of an already emotionally charged situation).
The Court of Appeals concluded that an appellate decision in favor of the respondent in this instance would directly vindicate his interest in avoiding those negative consequences addressed in its decision. Accordingly, they reversed and remitted the matter to the Appellate Division.
Why Fight the Order of Protection?A Case for Expansion of Automatic Orders
Nancy E. Gianakos
See EXPANSION, Page 17
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By Michael A. Markowitz, Esq.A bond or undertaking is a document whereby a
person or entity guarantees to pay a stated sum of money. There are many instances when a bond or undertaking is necessary in litigation. An undertaking is necessary to stay enforce-ment of a judgment before appeal (CPLR 5519). A bond is required for an Order of Attachment (CPLR 6212), preliminary injunction (CPLR 6312), receivership (CPLR 6303), or to cancel a Notice of Pendency (CPLR 6515). A property owner or contractor may use a bond to discharge a mechanic’s lien (Lien Law §19). An undertaking may be required for a guard-ianship under the Mental Hygiene law or for a fiduciary under the Surrogate’s Court Procedure Act.
Most attorneys accept an undertaking on its face. However, an attorney should know and understand CPLR Article 25 – the most used but least cited provision of the CPLR – before assuming the sufficiency of the bond.1
Pursuant to CPLR 2502, unless a court orders otherwise, a surety shall be either an insurance company “authorized to execute the undertaking within the state,” or a natural person (except an attorney) who, with the undertaking, shall sign an affidavit setting forth “his full name and address and that he is domiciled within the state and worth at least the amount specified in the undertaking exclusive of liabilities and of property exempt from
application to the satisfaction of a judgment.” An undertaking, together with any required affidavit, becomes effective when served and filed “with the clerk of the court in which the action is triable, or, upon an appeal, in the office where the judgment
or order of the court of original instance is entered.”2
Normally, a bond from an insurance company is accompanied by a power of attorney authorizing its agent to pro-vide the undertaking on its behalf.3 A Certificate of Qualification from the Superintendent of Insurance may accom-pany the undertaking.4 A Certificate of Solvency issued by the New York State Insurance Department pursuant to Insurance Law §1111 is essentially iden-tical to a Certificate of Qualification.5
If a Certificate of Qualification or Certificate of Solvency does not accom-pany the undertaking, an attorney may search the insurance company’s quali-fications online at www.dfs.ny.gov (go
to tab “insurance industry”), or telephone the insurance department at (800) 342-3736. An attorney may formally request a Certificate of Qualification from the New York State Department of Insurance.6 Finally, an attorney may serve a Notice of Exception.
Pursuant to CPLR 2506, a party may take excep-tion to an undertaking filed by an unknown bonding company or individual. An exception to an under-taking may be served “within ten days after receipt
of a copy of the undertaking.” However, a party must have a good faith basis to serve a Notice of Exception. “Exceptions deemed by the court to have been taken unnecessarily, or for vexation or delay, may, upon notice, be set aside, with costs.”7
If an attorney serves an exception concerning an undertaking, the adverse party may file a motion to justify the surety pursuant to CPLR 2507. The movant must file the motion within ten days after service of the exception. “If a motion to justify is not made within ten days after the notice of exception is served, the undertaking shall then be without effect” except, the original surety “shall remain lia-ble until a new undertaking is given and allowed.”8
If the surety is an insurance company, the movant simply files a Certificate of Qualification. If the surety is an individual, the court conducts a hearing to examine the surety, under oath, to deter-mine if the surety is domiciled in New York and has sufficient assets pursuant to CPLR 2502.
Failure to File an Exception to an UndertakingFailure to serve a Notice of Exception may cause
a problem if a party discovers an issue with the bond after the 10 day period pursuant to CPLR 2506. Is a party estopped from seeking any future relief from the court if an exception is either not or untimely filed? Or, may a party request and receive a new or an additional undertaking pursuant to CPLR 2508?9 The courts have given contradictory opinions.
The issue in City of New York v. Britestarr Homes,
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
WEDNESDAY, MAY 13Alternative Dispute Resolution Committee 12:30 p.m Elizabeth DonlonCriminal Court Law & Procedure Committee 12:30 p.m. Brian GriffinAssociaton Membership Committee 12:45 p.m. Marc Gann/Geoffrey PrimeMatrimonial Law Committee 5:30 p.m. John P. DiMascio, Jr. THURSDAY, MAY 14Technology and Practice Management Committee 8:00 a.m. John P. Whiteman, IIIGeneral/Solo/Small Firm Practice Committee 12:30 p.m. Gary Port
Publications Committee 12:45 p.m. Christopher DelliCarpiniFRIDAY, MAY 15Sports Entertainment & Media Law 12:30 p.m. Ross SchillerTUESDAY, MAY 19Veterans & Military Law Committee 12:30 p.m. Edward CunninghamPlaintiff’s Round Table 6:00 p.m. Terrence TarverElder Law Social Services Health Advocacy 6:00 p.m. Moriah Adamo/Paul HylWEDNESDAY, MAY 20Construction Law 12:30 p.m. Vincent PallaciAttorneys/Accountants 12:30 p.m. Neil Katz
Surrogates Court Estates & Trusts 5:30 p.m. John Graffeo/ Lori SullivanTHURSDAY, MAY 21Civil Rights 12:30 p.m. Jason StarrYoung Lawyers 6:30 p.m. Andrea BrodieTUESDAY, MAY 26Commercial Litigation 12:30 p.m. Kevin SchlosserWEDNESDAY, MAY 27Appellate Practice 12:30 p.m. Richard LangoneEducation Law 12:30 p.m. Douglas LibbyReal Property 5:30 p.m. Kevin McDonough/ Mary Mongioi
THURSDAY, MAY 28Senior Attorneys 12:30 p.m. Charles E. Lapp, IIICondemnation Law & Tax Certiorari 12:30 p.m. John TerranaTUESDAY, JUNE 2Ethics 5:30 p.m. Omid ZarehTHURSDAY, JUNE 4Hospital & Health Law 8:30 a.m. Geoffrey Kaiser/Kevin MulryCommunity Relations & Public Education 12:45 p.m. Adam D’AntonioTUESDAY, JUNE 9Access to Justice 12:30 p.m. Steven LeventhalWomen In The Law 12:30 p.m. Barbara Gervase, Amy Hsu
Domus Open 12:45 p.m. Daniel RussoWEDNESDAY, JUNE 10Environmental Law 12:30 p.m. Kenneth RobinsonAssociaton Membership Committee 12:45 p.m. Marc Gann/Geoffrey PrimeAlternative Dispute Resolution Committee 5:30 p.m. Elizabeth DonlonMatrimonial Law Committee 5:30 p.m. John P. DiMascio, Jr. THURSDAY, JUNE 11Technology and Practice Management Committee 8:00 a.m. John P. Whiteman, IIIPublications Committee 12:45 p.m. Christopher DelliCarpini
* Committee Chairs and Co-Chairs denoted in Italic.
May is Membership Month: Committee Meetings in May
Open to All Attorneys
10 n May 2015 n Nassau Lawyer
Teresa ButlerTeresa Butler attended law school on a whim. She
had an interesting and varied career and never really thought about becoming a lawyer. Always active in the community, in 2004 she volunteered on a local judicial campaign and found the candidate to be extremely smart and hardworking. The sentiment was obviously mutual as he suggested that Ms. Butler should think about going to law school. Ms. Butler’s children were grown and she figured why not give it a try? So, a small seed planted by the Hon. John L. Kase grew into a 2011 magna cum laude graduate of Touro Law School, a vol-unteer with The Safe Center LI (“TSCLI”) and now the May Pro Bono Attorney of the month.
Ms Butler enjoyed going to law school and is happy that she is now able to use her skills to help those less fortunate than herself. She feels grateful that she has reached a point in her life where she is able to do so and with the support and encouragement of her husband and family. She sought out various volunteer opportu-nities and when asked how she chose The Safe Center as a recipient of her pro bono efforts, she replied:
“I went to law school later in life so came to the prac-tice of law with a different perspective. I am a fairly new lawyer (admitted in Feb 2012) so my focus is learning the skills to be a good lawyer. I am still learning, but I worked hard to obtain a law license so, as much as I can, I will use my license and knowledge to help people who need it the most. I picked The Safe Center because I think it’s important to help clients break free from
spouses who manipulate and abuse and harass to stop them from reaching their full potential.”
Ms. Butler began volunteering with TSCLI in 2012 and has handled three cases since joining the Pro Bono Project. Beginning with a Landlord Tenant matter in November of 2013, she then attended our matrimo-nial training in January 2013 and shortly thereafter began her first divorce case. She took advantage of the Project’s mentoring program and was paired with an experienced matrimonial practitioner. After she successfully completed working on that first divorce, she immediately volunteered for another. And she was immediately assigned another one. This is just one of the reasons TSCLI is proud to honor her as the Pro Bono Attorney of the Month.
Ms. Butler attended law school at night while work-ing full-time for the first year and a half. She left her employment to gain legal experience through internships while continuing to attend night classes. As a Clinical Intern at the Mortgage Foreclosure & Bankruptcy Clinic at Touro Law Center, she represent-ed clients under a student practice order and advised clients of available options in bankruptcy, foreclosure and mortgage modification matters. She also prepared mortgage modification packets for clients, coordinated submission and consideration of modification to banks and mortgage servicing companies; and prepared and submitted bankruptcy petitions to Bankruptcy Court. In addition, Ms. Butler worked as a legal intern with
By GAIL BRODER KATZ
Pro Bono Attorney of the Month
Brown & Altman, LLP, conducting legal research and drafting memoranda in real estate, land use and zoning, and corporate litigation matters.
Ms. Butler graduated from Stony Brook University with Bachelor of Arts in Economics and a Minor in Political Science. She held positions with Fidelity National Title Group in the New York State Rate Compliance Group and Nassau Regional Off Track Betting Corp. (“OTB”) as the Director of Real Estate and Facilities Development. It was in one of her earlier posi-tions as Assistant to the Director of the Nassau County Office of Housing and Intergovernmental Affairs that she got a lot of satisfaction. As part of the County’s First Time Homebuyers Program, she attended the closings and was responsible for giving out the checks to the very grateful soon-to-be new Nassau County home owners.
Ms. Butler is also actively involved with non-legal volunteer work. She is the Vice-President and a found-ing member of a local not-for-profit that is working to establish a local ‘Club House’ for recovering substance abusers, with an emphasis on youths in recovery. The club house is envisioned as a safe place for those in recovery to gather in a substance and alcohol-free atmosphere. The clubhouse will offer group meetings, a gathering place and information sharing, all with the goal of helping visitors maintain sobriety, while assisting in addressing the difficulties that surround it, in a warm, nurturing and non-judgmental environment.
When not working on her various charitable causes, Ms. Butler is a Solo Practitioner and maintains a General Practice in Levittown providing legal services relating to landlord/tenant, real estate, not-for-profit organizations, guardianships and litigation matters. She also conducts legal research and provides per diem services.
When asked what she got out of her pro bono repre-sentation – she replied “just helping them out of a bad sit-uation and potentially dangerous one.” Please join TSCLI in recognizing and thanking Teresa Butler for all of her volunteer efforts to make our community a better place.
Gail Broder Katz, Esq. is the Pro Bono Project Coordinator for The Safe Center LI (formerly Nassau County Coalition Against Domestic Violence.) She can be contacted at [email protected] or 516-465-4700 for information about the Project and how you can help.
Nassau Lawyer n May 2015 n 11
By Scott M. Karson
On Saturday, March 28, 2015, the 250-member New York State Bar Association House of Delegates – the State Bar’s governing body – took a num-ber of significant actions at its meeting in Albany. Among them, the House approved the report and recommendations of the NYSBA Task Force on Gun Violence; approved certain amendments to the New York Rules of Professional Conduct proposed by the NYSBA Committee on Standards of Attorney Conduct (“COSAC”); approved certain amendments to the 2013 Revised Standards for Mandated Representation pro-posed by the NYSBA Committee to Ensure Quality of Mandated Representation; and approved the report and recommendation of the NYSBA Committee to Study the Court Advocates Proposal.
The report and recommendations of the Task Force on Gun Violence which was approved by the House contains a public education component which includes a comprehensive review of the history of the Second Amendment through the 2008 decision of the United States Supreme Court in District of Columbia v. Heller. The report and recommendations also address-es the absence of data about gun violence and proposes actions to gather pertinent date so as to enable legisla-tors to make informed judgments on the subject.
The amendments to the New York Rules of Professional Conduct which were recommended by COSAC and approved by the House included: amend-ments to the black letter Rules, which shall not become effective unless approved by the Appellate Divisions; amendments to the Comments accompanying pro-posed amendments to the Rules, which shall become effective only if the Appellate Divisions approve the
amendments to the Rules related to the Comments; and Comments independent of the black letter Rules, which are the sole province of NYSBA and became effective upon approval by the House.
The House approved an amendment to Rule 1.1, Comment [6], to provide that among the factors to be considered in determining whether to retain or contract with other lawyers outside the lawyer’s own firm shall be the needs of the client. The House also approved an amendment to Rule 1.1, Comments [7] and [7A], which clarify the roles and allocation of responsibilities where lawyers from more than one firm are representing a single client on a particular matter.
The House also approved new Comments [18A] through [18F] to Rule 1.6 and new Comments [10] and [11] to Rule 1.10 clarifying client confidentiality concerns when lawyers contemplate lateral moves or law firm mergers.
Among the other amendments to the Rules of Professional Conduct approved by the House were: approval of an amendment to Rule 5.3, Comment [3] addressing a lawyer’s responsibility for conduct of non-lawyers; and an amendment to Rule 7.2, Comment [1], providing that search engine optimization techniques that do nothing but rank order search results do not constitute referrals or recommendations within the meaning of Rule 7.2.
As noted, the House approved certain amend-ments to the 2013 Revised Standards for Mandated Representation proposed by the NYSBA Committee to Ensure Quality Mandated Representation: requiring trial counsel to protect the record by making timely and effective objections; requiring trial counsel to properly maintain the case file and to deliver it to suc-cessor counsel; requiring trial counsel to facilitate the
appointment of appellate counsel; requiring appellate counsel to protect the client’s interests if the case is remanded for additional proceedings during or after the appeal; prescribing the responsibilities of appellate counsel where there is a credible claim of actual inno-cence; and setting forth appellate counsel’s responsibil-ities when requested by the trial court to represent a pro se defendant in a post-conviction proceeding.
The House also approved the report and recommen-dations of the NYSBA Committee to Study the Court Advocates Proposal. Pursuant to the proposal, indi-gent clients will be represented in certain matters in Housing Court and in consumer debt cases by non-law-yer Court Advocates who will receive special training and will act under the supervision of attorneys.
In his final report to the House as NYSBA President, Glenn Lau-Kee reported that the amended version of Rule 118.1 of the Rules of the Chief Administrator is scheduled to be issued by the Administrative Board of the Courts on May 1, 2015. The amended rule, which is the product of negotiations between NYSBA and the Chief Judge, will provide for reporting of pro bono hours and financial contributions by attorneys on an anonymous basis only; (b) provide for reporting of pro bono hours and financial contributions by attorneys to the public on an aggregate basis only; and (c) provide for additional categories of reportable hours and finan-cial contributions given by attorneys towards pro bono work and other public service.
This meeting also marked the “changing of the gavel” as NYSBA President Elect David P. Miranda served as Chair of the House for the last time. On June 1, 2015, Mr. Miranda will succeed Mr. Lau-Kee as President of the Association, and Claire P. Gutekunst will succeed Mr. Miranda as President
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May 28 Help Wanted 1.5 0.5 2.0 $75 $100 $0 ~ June 1 Expert Advice 2.0 2 $80 $115 $0 ~ June 4 Child Neglect Proceedings 3.0 3 $115 $155 $0 ~ June 10 Dean's Hour: RICO 1.0 1 $30 $40 $0 ~ June 15 Can I Quote You? 2.0 2 $80 $115 $0 ~ June 25 1031 Like-Kind Exchange 2.0 2 $80 $115 $0 ~ SEMINAR RESERVATION TOTAL:
Ethics Ethics Quiz Show 2.0 2 75/95 110/130 5QUIZ0124 Ethical Management of a Law Firm 3.0 3 115/130 150/175 5LAP0428
Estate/Trust Emerging Issues in Surrogate's Court 3.0 3 115/130 150/175 5EMERG0504 An Evening with the Surrogates 2.0 2 75/95 110/130 4SURROGAT1105
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Nassau Lawyer n May 2015 n 1312 n May 2015 n Nassau Lawyer
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The Young Lawyers Committee (YLC) of the Nassau County Bar Association is pleased to highlight the achievements of Michael P. Bassett, Jr.
In 2015, Mr. Bassett joined The Law Offices of Collins, McDonald & Gann, PC, located in Mineola. As an associate, Mr. Bassett represents clients in a plethora of legal proceedings at the state and federal levels. He focuses on criminal defense, traffic violations, serves as in-house coun-sel for numerous dietary supplement companies, and concentrates in ste-roid defense law.
Mr. Bassett graduated from Adelphi University in 2009 with a Bachelor of Science in Criminal Justice and a minor in Political Science. He was a President’s List recipient for several semesters and a Dean’s List recipient in all semesters he attended. In 2008, he received the Theodore Caplow Award for Excellence in Criminal Justice, awarded to the author of the paper of the year in the topic of Criminal Justice. While at Adelphi University, Mr. Bassett was a member of Theta Chi, the National Honor Society in Criminal Justice.
Mr. Bassett earned his Juris Doctor from Touro College Jacob D. Fuchsberg Law Center in 2013. While at Touro, he served as secretary and vice president of the Public Interest Law Organization of Touro. He prac-ticed in his passion of public interest
while at the Public Advocacy Center of Touro in 2010, where he represented indigent tenants and landlords. He subsequently served as a pro bono attorney with the Federal Defenders of New York (Central Islip), and vigor-ously defended persons charged with federal crimes who could not afford to hire an attorney.
Mr. Bassett recently enrolled in and grad-uated from the presti-gious New York State Bar Association Trial Academy hosted at Cornell University. While at the Academy, Mr. Bassett enhanced his already strong trial advocacy skills by learn-ing from New York’s best and most seasoned trial attorneys in areas such as: jury voir dire, opening statements,
direct examinations, cross examina-tions, and closing arguments.
Mr. Bassett is admitted to prac-tice law in the State of New York and pending admission in the United States District Court for the Eastern and Southern Districts of New York.
He is an active and contributing member of the Nassau County Bar Association, including the Young Lawyers Committee. He is also a member of the New York State Bar Association.
The YLC congratulates Mr. Bassett on his accomplishments and contribu-tions to the community and wishes him continued success in his endeav-ors.
Anthony Fasano is an associate attorney at Guercio & Guercio, LLP.
You n g La w Y e r of th e Mon thMichael P. Bassett, Jr.
Farrell Fritz is pleased to announce that James M. Wicks, a partner in the firm’s commercial litigation depart-ment, will be an honoree at the 2015 Jewels and Jeans Dinner to be held on Thursday, June 11, 2015 at 6:30 p.m. at Flowerfield in St. James, NY. Rachel A. Scelfo, counsel in the firm’s land use and munici-pal department, has recently been elected to a five year term on the West Babylon Public Library’s board of trustees.
Long time active mem-ber of the NCBA, Carol M. Hoffman, an Arbitrator, Mediator and Special Discovery Master, was named a Fellow of the New York Bar Foundation nom-inated by peers and recognized for dis-tinguished achievement, dedication to the legal profession, and commitment to the organized bar and service to the public.
Jennifer B. Cona, managing part-ner of Genser Dubow Genser & Cona (GDGC), Melville, focusing her prac-tice on asset protection, Medicaid plan-ning, estate planning and litigation, probate and administration of estates, special needs planning, Veterans ben-efits, guardianships and healthcare reimbursement and recovery, was voted by legal professionals as the top trusts and estates attorney on Long Island in 2015. Her recognition is included in The Top 10 Legal Eagles list in the March issue of LI Pulse. Ms. Cona was also the featured CEO to present at the HIA CEO Roundtable for over 50 business owners and execu-tives on April 1st.
Long Island Pulse Magazine has named Paul S. Linzer, a Partner in the Labor Group at Certilman Balin Adler & Hyman, LLP, to their top 10 list of Legal Eagles. Mr. Linzer con-centrates his practice on all aspects of public sector labor law litigation, and criminal defense litigation. Erin J. O’Brien, an Associate in the Litigation Practice Group and an Immigration Lawyer at the firm was one of 12 women to be recognized by Nassau County as an “Extraordinary Woman.” Recipients were selected among nomi-nation letters.
Donnalynn Darling, Chair of the Personal Injury and Education Law practices at Meyer, Suozzi, English & Klein, P.C., has been elected to Syosset-based Variety Child Learning Center’s Executive Committee. She has served on the Board of Trustees
since 2004 and as a mem-ber of Variety’s legislative committee, which informs the community of the need for policies and services to promote the development of young children, especially those at risk of later learn-ing problems.
Garden City-based law firm Cullen and Dykman has named Kevin P. McDonough as Partner. Mr. McDonough, who prac-
tices in the areas of commercial and civil litigation, real estate, zoning and land use law and higher education law, also serves as Village Justice of Rockville Centre.
Karen Tenenbaum of the Melville tax law firm, Tenenbaum Law, P.C. was quoted in the Bloomberg Business news article “How New York Hunts Down Tax Refugees.” Ms. Tenenbaum was also honored for her commitment to educating youth on financial literacy at the Strong, Smart and Savory Awards of 2015 held by Girls Incorporated of Long Island. Yvonne Cort of the Firm recently spoke in Florida on “New York State & New York City Residency Issues: The Hidden Tax Cost of a Second Home in NYS or a NYC Apartment” for the South Palm Beach County Bar Association. Ms. Cort also discussed New York State and New York City residency issues for the Florida Institute of Certified Public Accountants, Broward Chapter.
The Law Office of Kestenbaum & Mark is pleased to announce that Scott L. Kestenbaum has joined the firm as an Associate and will assist the firm’s practices in civil and crim-inal tax controversy, estate planning and administration, corporate and real estate transaction and all related liti-gation.
Marshall Dennehey Warner Coleman & Goggin announced today that Martin A. Schwartzberg has joined the firm’s Melville office as a shareholder in the Professional Liability Department.
Penny B. Kassel, an elder law attorney with offices located in Garden City, Hauppauge, and East Hampton, presented a seminar on asset protec-tion planning and Medicaid eligibility for the Widow and Widowers group at the Church of St. Joseph in Garden City.
The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, events and recent accomplishments of its members. Due to space limitations, submis-sions may be edited for length and content.
The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to representing attorneys for nearly 35 years, Ms. Rice is a past President of NCBA.
PLEASE E-MAIL YOUR SUBMISSIONS TO [email protected] with subject line: IN BRIEF
In BrIef
Member Activities
Marian C. Rice
specify that scholarships, grants, finan-cial aid or other tuition benefits shall reduce the parents’ obligations, such awards and benefits will inure to the benefit of the student and will not offset the parents’ obligations to finance college expenses up to a SUNY cap.
For example, unless the parents expressly provide that any financial aid awarded is to be subtracted from the par-ents’ SUNY-capped obligation, it is likely that a court will subtract the financial aid award from the total cost of the school the student chose to attend. Oftentimes, a financial aid award is sufficiently large enough that setting it off against the par-ents’ SUNY-capped contribution results in completely negating the parents’ tui-tion obligation while leaving the student, who chose to attend a private school, with a substantial tuition bill. The courts, in accordance with the “Student First” pol-icy, have held that an agreement provid-ing for a SUNY cap, unless unequivocally clear, should not be interpreted to require such a result.10
ConclusionPractitioners seeking to protect their
clients from additional and costly finan-cial obligations for college expenses should be attentive to drafting precise-ly the intentions of the parties when
negotiating college clauses. According to case law, when it comes to college costs, courts are leaning in favor of benefitting college-age children of divorce who are not yet emancipated, rather than saving their parents’ money.
The ever-evolving case law warns that general language will no longer be effec-tive against limiting financial obligations for college expenses and may end up cost-ing the parties far more than was legit-imately intended at the time of settling the divorce action.
Jane K. Cristal is the founder of Jane K. Cristal, PC in Mineola ([email protected]) and has devoted herself to the prac-tice of matrimonial and family law for more than 28 years. She is a member of the NCBA Matrimonial and Family Law Committee and is appointed to the NYSBA Family Law Section Committee on Legislation.
1 Trends in Higher Education: Average Published Undergraduate Charges by Sector 2014–15, www.CollegeBoard.org.
2 Reiss v. Reiss, 56 A.D.3d 1293 (4th Dept. 2008); Naylor v. Galster, 48 A.D.3d 951 (3d Dept. 2008); Rosado v. Hughes, 23 A.D.3d 318 (1st Dept. 2005).
3 Chan v. Chan, 267 A.D.2d 413 (2d Dept. 1999).4 Poberesky v. Poberesky, 71 A.D.3d 516 (1st Dept. 2010).5 Tishman v. Bogatin, 94 A.D.3d 621 (1st Dept. 2012).6 Pamela T. v. Marc B., 33 Misc.3d 1001 (Sup. Ct., N.Y.
Elect and Chair of the House.The House elected the members of
the 2015-2016 NYSBA Nominating Committee. From the Tenth Judicial District, the members of the Nominating Committee will be: Steven G. Leventhal, A. Thomas Levin, A. Craig Purcell, Richard A. Weinblatt, Rosemarie Tully (first alternate) and Marian C. Rice (sec-ond alternate).
It was announced that John Gross, former President of the Suffolk County Bar Association and former NYSBA Vice President for the Tenth District, will succeed Cristine Cioffi as President of the New York Bar Foundation.
On Friday, March 27, 2015, the mem-bers of the NYSBA Executive Committee were privileged to attend the Investiture of Leslie Stein and Eugene Fahey as
Associate Judges of the New York Court of Appeals. Chief Judge Jonathan Lippman presided over the investiture ceremony before an overflow crowd in the magnificent Court of Appeals Courtroom.
The next meeting of the House will be held on Saturday, June 20, 2015 in Cooperstown, New York.
The author is the Vice President of the NYSBA for the Tenth Judicial District and serves on the NYSBA Executive Committee and in the NYSBA House of Delegates. He also serves as Chair of the NYSBA Audit Committee. He is a member and former Chair of the NYSBA Committee on Courts of Appellate Jurisdiction, and a current mem-ber of the NYSBA Committee to Review Judicial Nominations, the NYSBA Committee on Leadership Development and the NYSBA President’s Committee on Access to Justice. He is also a former President of the SCBA, a member of the ABA House of Delegates, a member of the ABA Judicial Division Council of Appellate Lawyers and Vice Chair of the Board of Directors of Nassau Suffolk Law Services Committee, Inc. He is a partner at Lamb & Barnosky, LLP in Melville.
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Real Property LawMeeting Date 3/25/15 Chair: Kevin P. McDonough
Committee members engaged in an extensive discussion on the use, require-ments and pitfalls of several common residential closing forms, including the HUD-1 RESPA Settlement Form and the 1099-S IRS Reporting Form. Former committee chair Joseph LaFace led the discussion, advising the committee with respect to various issues related to the HUD-1 Form, including federal report-ing matters and fraud, as well as com-pletion and utilization of the form. The meeting scheduled for April 29, 2015, featured speaker James Ricca, Esq. The meeting scheduled for May 27, 2015, featured Andrew Lieb, Esq. who will
give an overview and update on recent significant changes in real estate law.
Condemnation Law & Tax Certiorari Meeting Dates 3/31/2015 and 4/28/15 Chair: John Terrana
At the meeting held on March 31, 2015, a presentation was given by Martin Valk, Bureau Chief of the Tax Certiorari Bureau of the Nassau County Attorney’s Office, and Christopher Byrnes, regard-ing Manouel v. Nassau, a case they argued before the New York Court of Appeals, dealing with the issue of the owner occupancy requirement for Small Claims Assessment Review Proceedings, and which included a video of their oral argument.
At the meeting held on April 28, 2015, Paul Damato of Murphy & Lynch, PC, gave an overview of condemna-tion law, recent developments and unique cases and situa-tions that have or may arise.
The next committee meeting is scheduled for May 28, 2015.
Matrimonial LawMeeting Date 4/15/15 Chair: John DiMascio, Jr.
The CLE program “We Are All Innocent: The Effect of an Innocent Spouse Determination by the IRS on a Pending Matrimonial Case” was pre-sented by Manhattan tax attorney Bryan C. Skarlatos, Esq., of Kostelanetz & Fink, LLP. The feature, “A New Case from a New Face,” was given by Michael Gionesi, Esq., who discussed the recent Suffolk County Family Court case Matter of Kelly S. v. Farah M., in which the Family Court applied California law and concluded that a non-biological parent had standing to seek custody and visitation, and dismiss-ing paternity petitions filed by the biolog-ical mother. The next committee meeting is scheduled for May 13, 2015.
Labor & Employment LawMeeting Date 4/15/15 Chair: Jeffrey Schlossberg
Guest speaker Kimberly Dobson, Esq, gave a presentation on recent develop-ments having to do so with issues relat-ed to employee handbooks, including National Labor Relations Board (NLRB) interpretations of various employer
policies concerning confidentiality and non-disclosure matters, workplace con-
duct, solicitation on company property, the taking of pictures or video on company property, and speaking to the media.
Discussions were also held regarding the upcoming sem-inar on April 29, 2015, medi-ation and arbitration panels, and the end of the year gala scheduled for June 17, 2015, where Susan Slavin will be the honoree for this year’s Lawrence Solotoff Recognition Award.
Veterans and Military LawMeeting Date 4/21/15 Chair: Edward Cunningham
Guest speaker Dominick Yezzo, Esq., a veterans advocate in the New York City Veterans Court, delivered a lecture regarding the operations of veterans treat-ment courts and how cases are referred. Discussions were also held regarding the veterans treatment court in Buffalo, con-sidered by many to be the model for others, as well as the Veterans’ Legal Assistance Program at Hofstra Law School, as sever-al members of the committee participated in their recent legal clinic on March 28, 2015 at Hofstra Law School.
Michael J. Langer, an associate in the Law Offices of Kenneth J. Weinstein, is a for-mer law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s prac-tice focuses on matrimonial and family law, criminal defense and general civil litigation.
CommIttee reports
Michael J. Langer
Nassau Lawyer n May 2015 n 17
By Leland BeckWhen the economic recession of
2008-9 hit the legal industry, many of the large law firms down-sized by laying off attorneys, paralegals, and support staff. Lawyers who had been working for ten years or more, suddenly found themselves on the street with no income to support their families. For many it became a life-changing crisis.
The LAP committee recognized the problem and worked towards estab-lishing a program to support the unemployed/underemployed lawyer. For the past three years, our LAP committee has sponsored a monthly group meeting for those who were effected by the downsizing of the legal services industry. The group meets at Domus at lunch time, and networks under the leadership of one of our LAP members. Peter Schweitzer, the LAP Director, has helped by editing résumés and advis-ing about methods of approaching potential employers that have proven successful.
We partnered with Gale Berg, the NCBA Pro Bono Coordinator, in plac-ing the unemployed lawyer in useful voluntary positions. This puts the lawyer back to work, helping clients on a temporary basis. It was good for moral and kept training and skills current.
Because many of the unemployed could not afford to buy lunch, the Board of Directors generously pro-vided a free lunch for the meeting. Another meaningful contribution
came from the Academy of Law, in the provision of free admission to CLE courses. In this way, the unem-ployed lawyer could achieve some knowledge in fields which had not been his/her former practice. The training and education opened up a larger area for potential employment.
When the program began, the group would have 15-25 participants each month. Discussions among the group dealt with the exchange of ideas, job openings, as well as ways to cope with the present per-sonal difficulties each was facing.
Overall, about 100 lawyers have been involved in the program, at one time or another. Presently, the group has dwindled to only one or two partici-pants - a testimony to the success of the efforts of our volunteer committee members. Most of the participants are now back among the employed, with their sanity intact.
This program was chaired by Lee Beck with the active participation of Peter Schweitzer. The support of the NCBA Board of Directors, the Academy of Law, and Gale Berg must be acknowledged.
Moreover, an individual’s choice to proceed on their own does not remove the burden of having to present legally competent evidence and being held to the same stan-dard of proof as others who are represented by counsel.10 “[A]n inexperienced litigant who chooses to represent himself or herself in court does so with a degree of risk involved.”11
Although the court may provide the pro se litigant “some latitude” the standard they are held to is not diminished by the fact that they chose to represent themselves.12
With all the above having been said, the court does have the obliga-tion to “promote public confidence” in the court’s proceedings; thus, it is left to the court in each matter before it, on a case-by-case basis to ascertain, based on the limitations of the pro se litigant, how much lat-itude it will afford him or her, or if it will afford any at all.
The court has the duty, as well, to ensure that each party has the “right to be heard”14, and therefore care must be taken not to summar-ily foreclose arguments or state-ments by pro se parties that might be considered less than relevant, pertinent, or persuasive. The court must be respectful and restrained, but at the same time conscious of the court’s and other side’s time in any particular circumstance wheth-er conferencing a matter or con-ducting a full evidentiary hearing.
Advice to CounselMy parting advice to the bar
when handling a matter with a pro se litigant on the other side is to take care not to attempt to overpow-er them with your superior knowl-edge of the law and procedure, but instead, treat them with the respect you would an adversary who is an attorney. The effect of taking such a tack will, more times than not, be increased cooperation and willing-ness to communicate productively toward resolution.
Adam E. Small is a Support Magistrate in Nassau County Family Court. Prior to his appointment, he was a member of the Family Court Attorney for the Child and 18b panels.
1 CPLR 321(a).2 Fam. Ct. Act § 262(a).3 Samuel v. Samuel, 33 A.D.3d 1010, 1011 (2d
Continued From Page 5NCBA Lawyers Assistance Program tackles the
Problem of the Unemployed/Underemployed
The interfamily dispute encountered here between an aunt and a nephew, is not so different from the matrimonial scenes played out with hostile parties residing under one roof. The marital discord festers and percolates into ver-bal harangues and physical gestures that take on added significance with the commencement of a matrimonial action. Orders of protection may result in the removal of one of the parties from the marital residence, supervised visits with the children and possibly incarcer-ation of a matrimonial litigant for a vio-lation. If custody is in dispute, the court must consider domestic violence as a factor in its determination.6 Clearly, the potential for lasting consequences of protective orders survive long after marital hostilities have subsided.
Recognizing animosity as a hallmark of divorce, the frequency of orders and their detrimental impact will persist. Perhaps, one remedy to stem the tide of these orders lies in the expansion of the “automatic orders” imposed by Domestic Relations Law (“DRL”) § 236 B(2)(b).
The Automatic Order of ProtectionIn 2009, the legislature amend-
ed the DRL to address the frequen-cy with which courts were confronted with motions for restraining orders to prevent the unscrupulous dissipation and secretion of marital assets during the pendency of a matrimonial action. The legislature enacted the “automatic orders” to take effect upon the plaintiff
with the filing of the summons with notice for divorce and upon the defen-dant with personal service of same by which each party is affirmatively charged to preserve the marital estate. By this statute, the burden shifted to the suspect party to prove there has been no misuse or secretion of assets in violation of a restraint; whereas prior to the amendment, it was incumbent upon the “innocent” spouse to prove the need for a restraining order to curtail financial maneuvers of the other party.
There are basically five restraints imposed upon the financial conduct of matrimonial litigants. Arguably, adding a sixth restraint directing the litigants to refrain from harassing, stalking and assaulting each other and their children places the parties on notice regarding their familial conduct. The violation of the automatic order may be immediately addressed in the context of the matrimonial proceed-ing and perhaps eliminating the “two forum” conundrum of a matrimonial action pending in Supreme Court with a pending proceeding for an order of protection in the Family Court.
Of course, this sixth restraint is limited in scope, and may not impact a pre-commencement application for a protective order. Nonetheless, the effect of the restraint to tamp down marital hostilities without a judicial proceed-ing even if only operative during the pendency of the action is arguably wor-thy of legislative consideration. Adding teeth to the statute might include a bold face warning that a violation of the sixth restraint could result in the impo-sition of sanctions including removal from the marital residence which in
itself may give marital litigants cause for pause.
Since the “automatic orders” termi-nate upon further order of the court or agreement of the parties, the impact of an automatic order does not survive the pendency of the action nor does it carry the stigma of a protective order and its legacy of negative consequences. The deleterious effect of a sixth restraint may very well subvert the need for orders of protection in the first instance.
Nancy E. Gianakos is a partner in Albanese & Albanese LLP in Garden City, practicing exclusively in matrimonial and family law. She is admitted in Connecticut (1981), New York (1993) and New Jersey (1992) and is a New York Super Lawyer since 2013. She is a member of the NYSBA, the NCBA Matrimonial and Family Law Committees, and the International Association of Collaborative Professional. She also serves on the Advisory Council of the NCBA Academy of Law and is a Master of the American Family Law Inns of Court. She is the former chair of the NCBA Publications Committee and Editor of Nassau Lawyer and lectures for the NCBA and NYSBA. She may be reached at [email protected].
1 2015 WL 566677 (NY), 2015 NY Slip Op 01300 (Feb. 12, 2015).
2 Family Court Act § 812(1). The Family Court and criminal court share concurrent jurisdiction over enumerated offenses.
3 The trial court concluded he had committed acts con-stituting harassment in the second degree. See Penal Law 240.26. See also Family Court Act § 812(1).
4 Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707,714 (1980). See Matter of New York State Common Jud. Conduct v. Rubenstein, 23 N.Y.3d 570, 576 (2014); Coleman v Daines, 19 N.Y.3d 1087, 1090 (2012).
5 Bickwid, 87 N.Y.2d at 863–864.6 Dom. Rel. L. § 240(1)(a).
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18 n May 2015 n Nassau Lawyer
We Acknowledge, with Thanks, Contributions to the WE CARE Fund
We Care
Hon. Ruth C. Balkin Hon. Angelo Delligatti
Hon. Frank & Joanne Gulotta
Hon. John G. MarksHon. Denise Sher
In Memory of Salvatore Spano
Hon. & Mrs. Angelo Delligatti
Steven J. EismanSusan Katz Richman
Hon. Denise SherHon. Joy Watson
In Memory of Dora Truzzolino, mother of Robert Truzzolino
Contributions may be made by mail: NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501
Donors In Honor OfSteven J. Eisman Arianna’s Bat Mitzvah; granddaughter of Stephen GassmanChristopher T. McGrath Arianna’s Bat Mitzvah; granddaughter of Stephen GassmanMarilyn K. Genoa the wedding of Mike Soressi, son of Keith SoressiHon. Andrea Phoenix the wedding of Mike Soressi, son of Keith SoressiSusan Katz Richman Hon. Lea Ruskin being honored by YasharHon. Denise Sher Hon. Thomas Adams’ receipt of the Annual William Gitelman Award from the Nassau Lawyers’ AssociationHon. Denise Sher Raymond Baltch & David Baltch 50th year admission to the BarHon. Denise Sher Chris Coschignano’s receipt of the Keith Romaine Elected Official of the Year Award from Touro Law Alumni Association Hon. Denise Sher the wedding of Mike Soressi, son of Keith SoressiHon. Denise Sher Terrence Tarver’s award by National Academy of Personal Injury Attorneys Top 10 under 40 in NYS Hon. Hope & Daniel Zimmerman Hon. A. Gail Prudenti’s receipt of the NCBA Dinstinguished Service MedallionHon. Hope & Daniel Zimmerman the birth of Lois & Elliot Schlissel’s grandson, Henry Alexander
Donors For Speedy Recovery OfHon. Frank & Joanne Gulotta, Jr. Hon. Victor OrtHon. Frank & Joanne Gulotta, Jr. Steven SchlesingerHon. Frank & Joanne Gulotta, Jr. Cleona SpanoChristopher T. McGrath Steven Schlesinger Christopher T. McGrath Debby Dickstein, daughter of Stephen W. SchlisselHon. Andrea Phoenix Steven Schlesinger Hon. Andrea Phoenix Debby Dickstein, daughter of Stephen W. SchlisselHon. Peter B. Skelos Debby Dickstein, daughter of Stephen W. Schlissel
Donors In Memory OfHon.Stacy D. Bennett Alfred ReinharzSteven J. Eisman & Samuel J. Ferrara Toby Tabat, mother of Gary Tabat Stephen J. Gassman David P. GalisonStephen J. Gassman Toby Tabat, mother of Gary TabatSharon & Joshua Genicoff Leatrice Katz Franchina & Giordano P.C. Ingeborg BielHon. Steven Jaeger James O’Neill, father-in-law of Hon. David SullivanHon. Steven & Peggy Jaeger Judith Snow, mother of Kimberly Snow Marilyn & Lou Levine Jack OlchinMarilyn & Lou Levine Irving “Ike” Perlman Nassau Academy of Law Lorenz (Larry) RosenkranzCheryl & Charlie Mallis Leatrice KatzHon. John G. Marks Rose CarfagnaThe Marten Family Lillian GoodmanHon. Andrea Phoenix Dr. B.K. Friedman, father of Daniel B. FriedmanHon. Andrea Phoenix James O’Neill, father-in-law of Hon. David SullivanHon. Andrea Phoenix David WonseverEllen M. Rosen Robin StormJoan & Stephen W. Schlissel Toby Tabat, mother of Gary TabatSchlissel Ostrow Karabatos PLLC Toby Tabat, mother of Gary TabatHon. Denise Sher James O’Neill, father-in-law of Hon. David SullivanHon. Peter B. Skelos David P. Galison Hon. Peter B. Skelos Alfred Reinharz Hon. Peter B. Skelos Pauline Terezakis, mother of George Terezakis
On Saturday April 25, 2015, mem-bers of the NCBA’s WE CARE Advisory Board and NCBA Young Lawyers Committee once again joined forces with ReBuilding Together Long Island, Inc., which repairs and rehabilitates the homes of poor, elderly and/or disabled individuals. For almost ten years, WE CARE has been a proud sponsor of this charitable organization, and the Young Lawyers Committee has consistently participated in many community proj-ects with ReBuilding Together.
This year, NCBA volunteers installed a new wheelchair ramp and new steps outside a Hicksville home and expanded the entrance to a bathroom. From trim-ming the hedges to cleaning the gutters, sawing and shaving planks of wood
to constructing a ramp from scratch, the participants performed repairs and transformed the entire outdoor area of the home, making it handicap accessi-ble for an elderly woman who is wheel-chair bound.
The Young Lawyer participants included Michael DeTrano, Anthony Fasano, Joseph Karlya, Monica Ruela, Carlo Sciara and Michael Tylutki. WE CARE Advisory Board members on hand included Judge Stacy Bennett and Chuck Bennett, Hon. Marilyn Genoa, Sarika Kapoor, Susan Katz Richman (Project Chair), Community Liaisons Harriet Brenner Gettleman and Timothy P. McCue. NCBA President John P. McEntee, a veteran of this annual event, also participated.
ReBuilding Together Because WE CARE
Checks made payable to Nassau Bar Foundation-WE CARE
Nassau Lawyer n May 2015 n 19
ASSOCIATION NEWS
William J. Corbett spoke on behalf of the New York State Bar Association’s Elder Law and Special Needs Section at the Queens Village based Services Now for Adult Persons (SNAP) as part of the National Healthcare Decisions Day. This if the fifth year he has presented on behalf of the Association. He is a member of the NCBA Elder Law Committee. He was welcomed by Mindy Lesser, RN, Health and Wellness Coordinator (left) and Jennifer Bailey, RN, SNAP Innovative Senior Center Director (right).
(l-r) Hon. Susan Katz Richman, Acting Village Justice of Sea Cliff and Plandome Manor and Nassau County Bar Association Past President, presents Judge Lisa Confusione, Acting Village Justice of Malverne, with the Hon. Frank J. Santagata Outstanding Magistrate Award at the Nassau County Magistrate Installation.
(l-r) Hon. Jon R. Mostel, Acting Village Justice of Great Neck; Hon. William J. Croutier, Village Justice of Rockville Centre; Hon Douglas J. Hayden, Village Justice of Floral Park and Nassau County Magistrates Association President; Hon. Robert C. Williams, Village Justice of Rockville Centre, retired; and, Hon. Steven G. Leventhal, Acting Village Justice Lattingtown and Massapequa Park and Nassau County Bar Association Second Vice President.
Nassau County Magistrate Installation was held at Domus on April 24th, 2015
Inc. was whether a defendant was required to replace an undertaking to discharge a mechanic’s lien when exception was served more than 10 days after plaintiff received the bond.10 Upon review of the legislative history and balancing the equities between the parties, the New York City Civil Court held that the defendant was required to replace the bond pursuant to CPLR 2508.11, and stated,
“Nothing in the legislative histo-ry supports the conclusion that the motion procedure may not be used at any time without proof of unusual circumstances. Of course, the motion procedure dif-fers from the notice of exception route; the burdens of going for-ward and of ultimate persuasion are different. The movant must show a need for justification and does not gain the effect of automatic invalidity if the propo-nent of the bond fails to proceed. There is no reason, therefore, to deny the motion out of hand as untimely. The court will con-strue the instant motion as prop-erly invoking CPLR 2508.”12
In February 2015, the Hon. Carolyn E. Demarest, a Justice sitting in the Supreme Court’s Commercial Part in Kings County, revisited this issue in Metropolitan Lofts of NY, LLC v. Metroeb Realty 1, LLC. She came to an opposite conclusion from the hold-ing in Britestarr.13
In Metropolitan Lofts, the plaintiff filed a bond pursuant to CPLR 6312 (preliminary injunction). The defen-dants never filed an exception to the bond. After the defendants won at trial, they sought damages against the surety. The defendants then discov-ered that the surety could not be locat-ed, was involved in numerous court battles concerning bogus bonds, and did not have sufficient assets required by statute (CPLR 2502). Since the defendants never filed an exception to the bond, they moved for a new under-taking pursuant to CPLR 2508. In opposition, the plaintiff argued that defendants were estopped from seek-ing a new bond since its motion was well after the 10 day exception period pursuant to 2506. The Court stated that there was already a disposition in the action and “any issue regard-ing the bond, which was required during the pendency of the action and while the preliminary injunction was
in place, is now moot.”14 The Court declined to order a
new bond pursuant to CPLR 2508. Although she acknowledged con-cerns about the undertaking, Justice Demarest held that “the bond is none-theless a valid and binding agree-ment, and enforceable according to its terms, and the surety remains liable thereunder.”15
ConclusionAlthough the exception procedure
is almost never invoked by a party,16 a little due diligence will go a long way to avoid a potential future prob-lem. In Metropolitan Lofts, the affi-davit accompanying the undertaking set forth that the surety was domi-ciled in Florida – not New York.17 On its face, the undertaking violated CPLR 2502. By simply reading and not assuming the validity of the bond, the defendants’ attorney could have avoided the adverse ruling by Justice Demarest.
Michael A. Markowitz is a solo practitioner who practices commercial, contracts and real estate litigation in Hewlett, New York. He is on the Board of Directors for the Nassau County Bar Association where he has lec-tured extensively for the Nassau Academy of Law and the Community Relations Public Education Committee.
1 City of New York v. Britestarr Homes, Inc., 150 Misc.2d 820, 570 N.Y.S.2d 882 (Sup. Ct. Bronx Cty. 1991).
2 CPLR 25053 Ins. Law § 1111(b)(1).4 Ins. Law § 1111(a).5 NYS Insurance Department Office of General Counsel
Opinion, September 7, 2004 (http://www.dfs.ny.gov/insur-ance/ogco2004/rg040904.htm).
6 Id.7 CPLR 2506.8 CPLR 2507(b).9 CPLR 2508 sets forth: “Upon motion of any interested
person, upon notice to the parties and surety, and to the sheriff, where he was required to be served with the under-taking, the court may order a new or additional undertaking, a justification or rejustification of sureties, or new or addi-tional sureties. Unless otherwise provided by order of court, a surety, on the original undertaking shall remain liable until such order is complied with, but the original undertaking shall be otherwise without effect.”
10 Britestarr, 150 Misc.2d at 822.11 Id at 823.12 Id.13 Metropolitan Lofts of NY, LLC v. Metroeb Realty 1,
LLC, 46 Misc.3d 1222(A), 2015 WL 894869 (Table), 2015 NY Slip Op 50251(U)(Sup. Ct., Kings Co. 2015).
14 Id at 20.15 Id at 21.16 Britestarr, supra at 823.17 Metropolitan Lofts, supra. See also NYSCEF
Document No. 157, Kings County Index No. 503441/2012 (filed 02/25/2014).
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(Photos by Hector Herrera)
20 n May 2015 n Nassau Lawyer
L. Benedict, an admiralty lawyer, as its first Judge. He presided without a feder-al courthouse for many years during his thirty years of service as the sole judge of the district.
Not unlike the admiralty bar cam-paign, the Suffolk County Bar Association (SCBA), joined by the Nassau County Bar Association and by then serving Chief Judge Joseph C. Zavatt (a Woodmere resident), began the campaign to bring a federal court to Long Island where the burgeoning population had reached more than two million and commerce was flourishing.
In 1967, in response to a SCBA feasi-bility study, Congress authorized the fed-eral court to sit in Mineola at the Supreme Court of Nassau County Courthouse to hear civil cases. Judge Zavatt credited the efforts of the Bar Association leaders and singled out Suffolk practitioner Richard C. Cahn for his submission “which sold the idea to congress.”1
In 1969, Congress authorized the court to sit in Westbury to hear both civil and criminal cases in a office build-ing located 900 Ellison Avenue. This approval followed a more comprehensive submission prepared by Richard Cahn which included studies documenting the contemplated growth and demand for justice on Long Island as it exists today. The General Services Administration (GSA) leased the uppermost floor of a three-story office building. The first floor was occupied by a busy branch of the New York State Department of Motor Vehicles. Other tenants included a travel agency, and securities and insurance bro-kerage firms. The third floor, dedicated to the federal court, provided two district court rooms with two chambers initially occupied by Judges Zavatt and Anthony Travia, a bankruptcy courtroom and facil-ities for a clerk’s office, a probation office, and bankruptcy court room
In 1976, George C. Pratt, a founding partner of Pratt, Caemmerer and Cleary, of East Williston, Long Island was appointed by President Gerald Ford to serve as a federal judge and was assigned to serve at the Westbury courthouse.
Disenchanted with the inadequacy and environment of the facility, Judge Pratt lobbied Congress to secure Congressional approval to move the federal court to Hofstra University located in Uniondale, L.I. where a building previously occupied by the IRS as a training facility was avail-able. With Congress’s approval and the cooperation of the GSA, Judge Pratt sin-glehandedly converted the training cen-ter into a full fledged federal court build-ing with three courtrooms, five chambers and facilities for a clerk’s office, probation department and U.S. Marshall Services.
Opened in October 1981, Judge Pratt was joined by Judges Jacob Mishler, Thomas Platt, Arthur D. Spatt and Frank Altimari—all Long Island residents.
In 1983, Leonard Wexler—a prom-inent Suffolk County trial lawyer and member of the Suffolk County Bar Association--was appointed by President Ronald Reagan to serve as a federal judge. Judge Wexler began his service in the Uniondale courthouse but soon became responsible for opening a Suffolk branch of the Long Island courthouse in a newly built one story office building located 300 Rabro Road. Opened in 1987,
the Hauppauge federal court occupied half of the building and provided two courtrooms with chambers and adequate facilities for a clerk’s office, probation department and U.S. Marshall Services. There Judge Wexler was joined by Judge Dennis Hurley, a former Suffolk County Legislator and practicing lawyer, recent-ly appointed by President George H.W. Bush
In 1996, land, formerly occupied by the Central Islip Psychiatric Center, became available for the construction of the Long Island U.S. Courthouse. Sen. D’Amato was key in sponsoring legislation to build the courthouse. Before construction, Judge Wexler consulted Bar Association leaders for input as to practicing law-yer concerns, and for four years actively oversaw Turner Construction Co. in the building of the massive structure.
Opened in 2000 with 23 courtrooms and 24 judges’ chambers, the courthouse is the third largest federal courthouse in the nation. In 2002 the courthouse was renamed in honor of Sen. D’Amato in recognition of his critical contributions toward making the Central Islip court-house a reality. Yet the courthouse shall remain as an everlasting tribute and monument to the thirty-four year cam-paign of Long Island lawyers, judges and political leaders to bring “ready access to justice” to a deserving population of more than three million residing in Nassau and Suffolk Counties.
Joseph W. Ryan, Jr. is a Past President of the Nassau County Bar Association and former Chair of the Federal Courts Committee of the Suffolk County and Nassau County Bar Associations.
1 NEWSDAY, 1/13/68, p.9
COURTHOUSE ...
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We welcome the following new members
NCBA New Members
AttorneysStuart L. Druckman
Christopher J. Hoelzer
Jeremy Jorgensen Nassau County Family Court
Michael William Koper
Sean O’Hara Leeds Brown Law, P.C.
Andrew Rabin
Cory J. Rosenbaum Modern Divorce Law & Mediation
Janine Z. Schatz
Nicholas T. Terzulli Nassau County Industrial
Development Agency
StudentsMatt Accardi
Angela M. CaliaAnthony Sergio De Ingeniss
Stephen HekimianKimberly R. KaufmannThomas James Manzi
Daniel E. OlivaJonathan D. Riddix
Gary Ernest VeglianteAlina Vengerov
MemoriamIrving Perlman
Nassau Lawyer n May 2015 n 21
If you are looking for employment in Long Island’s legal community, then you don’t want to miss the Nassau Academy of Law’s Continuing Legal Education seminar, “Help Wanted: Networking and Information to Kick Start Your Legal Job Search” on May 28, 5 - 7:30 p.m. Attendees earn 1.5 CLE credits in profes-sional practice or skills and .5 credits in ethics.
Top judges and lawyers will explain the employ-ment process for the NYS Unified Court System, Nassau County Attorney’s Office, Legal Aid Society of Nassau County, private law firms, referrals from the Nassau Surrogate’s Court, and applications to the 18B panel.
“This seminar will reveal how to go about applying and being considered for legal employment or refer-rals, and the ethical considerations of various legal positions,” NAL Dean Chandra Ortiz said. “In addi-tion, before the program starts, attendees have the unique opportunity to informally network with all the speakers.”
The distinguished panel includes Hon. Edward W. McCarty III, Nassau County Surrogate’s Court and Hon. Joy M. Watson, Nassau County District Court, as well as Mary J. Nori, Deputy County Attorney, Nassau County Attorney’s Office and Kent V. Moston, Chief Attorney, Legal Aid Society of Nassau County.
Employment at private law firms will be discussed by Marie Ann Hoenings of L’Abbate, Balkan, Colavita & Contini, LLP, Garden City; and Ralph A. Catalano, Partner at Catalano, Gallardo & Petropoulos, LLP, Jericho. Marc C. Gann, Partner at Collins McDonald & Gann, Mineola, will discuss 18B Assigned Counsel. The program will be moderated by NAL Dean Ortiz.
Reservations are $25 for law students, $50 for attor-neys admitted less than 2 years, and $75 for NCBA members. Non-members are $100. Reserve online at www.nassaubar.org.
For fastest registration contact NAL Director Jennifer Groh, 516-747-4464.
represented him in the sale of certain assets and formation of a corporation, and both husband and wife in the pur-chase of a home during marriage.5 The Supreme Court denied the motion to disqualify, and the Appellate Division affirmed. Critical to the Appellate Division’s determination was that there was no relationship between the past representation of the husband and the current divorce dispute, espe-cially since the Domestic Relations Law required financial disclosure by the parties.
In Bongiasca v. Bongiasca, the husband’s demand to disqualify the wife’s attorney was rejected where that attorney had represented both parties during the marriage in the purchase of real estate and acquired informa-tion concerning the husband’s financial holdings.6
The Appellate Division expressly found that not only were the repre-sentations not substantially related but “since full financial disclosure is required in an action such as this, it is difficult to discern what financial information defendant can claim to be confidential or secret.”7
In Messina v. Messina, the Appellate Division denied the wife’s demand to disqualify the husband’s attorney who had represented both parties in a real estate purchase during the marriage, finding the real estate was marital property, that Domestic Relations Law § 236(B)(4) required financial disclo-sure by the parties in a matrimonial action, and the wife had “not alleged any actual misuse by the husband’s counsel of any confidences related to the subject matter of the matrimonial action.”8
The above cases were not aber-rational. Courts consistently denied disqualification where the information communicated was not confidential or harmful, or the representation not substantially related.9 In Sullivan v. Cangelosi, the Third Department even denied disqualification despite the husband’s telephone communication with the wife’s attorney seeking rep-resentation regarding an assault and trespass committed on the wife.10 The Court found the husband did not share any information with the attorney that could be considered confidential.11 While the specifics of the communica-tion are not detailed in the decision, it can be inferred that the discussion was of a general nature.
Rule 1.18(e)(2): Problem Solved?Application of Rule 1.18(e)(2)
should, theoretically, make it easier to resolve issues of purported conflict. Determining whether a prospective
client sought a consult to create dis-qualification is nevertheless a daunt-ing task, and may still require an evidentiary hearing.
Moreover, not only does Rule 1.18(e)(2) deem a person not to be a prospective client where the consult was orchestrated for the very pur-pose of creating a conflict, but Rule 1.18(c) says that the attorney is only prohibited from representing a client with materially adverse interests to the prospective client if the attor-ney received information during the consult that could be “significantly harmful” to that prospective client.
Thus, Rule 1.18(c) even adds great-er protection and simultaneously attempts to avoid false claims involv-ing orchestrated conflict. Merely because information is alleged to be harmful is not enough. It must be sig-nificantly harmful and, in accordance with the long-line of cases, cannot simply be information otherwise read-ily discoverable. This appears to be a significant shift from prior law.
Although applying Rule 1.18 sug-gests the modern trend appears to disfavor disqualification - the evident intent of the rule - that is not always the case. Four recent cases illustrate this point. In Mayers v. Stone Castle Partners, LLC, the Appellate Division, First Department, reversed the trial court’s analysis and found disqualifi-cation was not warranted where the conveyed information, despite tech-nically confidential, did not have the potential to be significantly harmful, as it was generally known and would have come out anyway.12
In Bernacki v. Bernacki, a Monroe County Supreme Court case, disqual-ification was denied where the hus-band asserted that he had a telephone intake with an assistant in the wife’s attorney’s office, and offered the con-clusory argument he exchanged spe-cific information but never identified the details.13
In C.F. v. J.F., a Rockland County Family Court case, disqualification was denied where the potential client (i) admitted she sought to disqualify the attorney but also claimed she intended to hire him, (ii) did not claim any information imparted to the attorney was confidential or materi-ally harmful to her position, (iii) was intelligent, articulate and educated, and (iv) provided informed consent, confirmed in writing, for the attorney to represent her husband subsequent to her consultation.14
Most recently, in Becker v. Perla, the Appellate Division, First Department, found that despite the concession by plaintiffs’ attorney that he represented certain defendants in a prior matter and their interests were directly adverse, the court found that disqualification was not warranted because the present and prior matters
were not substantially related and the financial information shared by defendants with their attorney during the prior matter was not confidential since it was disclosed to plaintiffs and/or otherwise known to them.15 Such holdings should no longer come as a surprise in light of Rule 1.18, as the party demanding disqualification must discharge a “heavy burden” lest the demand be denied.16
The aforesaid analyses notwith-standing, the Second Department, in its most recent pronouncement, estab-lished a different standard without expressly referring to any of the provi-sions of Rule 1.18. In Cohen v. Cohen, the Second Department, without a hearing, disqualified the wife’s attor-ney holding that doubts as to whether a conflict existed had to be resolved in favor of disqualification to avoid the appearance of impropriety.17
Concluding that “under the par-ticular circumstances of this case”, given a consultation between an attor-ney and the husband’s brother with whom the husband shared business interests, coupled with a purported substantial risk of prejudice, disqual-ification was warranted as a matter of law even without an evidentiary hearing, and despite a factual dispute as to whether the attorney even met with the husband.
The dissent concluded there was no evidence of a prior attorney-cli-ent relationship and found that while a preliminary consultation between an attorney and an adverse party could be a basis for disqualification, there was no evidence the information imparted was confidential or that the interests of the husband’s brother were materially adverse to the wife. The dissent did not specifically refer to Rule 1.18 either.
When considering the compulsory nature of financial discovery under the Domestic Relations Law, it seems unusual the majority disqualified the wife’s attorney without a hearing in light of Rule 1.18’s requirement that the information imparted had to be “significantly harmful” to that person, especially given the attorney’s claim that no meeting with the husband ever occurred. The majority concluded the appearance of a conflict coupled with substantial risk of prejudice were sufficient.
After Cohen: More Questions Than AnswersThe Cohen majority does not explain
how information imparted by an indi-vidual who was not the prospec-tive client to an attorney about a third-party, even where they shared business interests, can be confiden-tial as to a third-party. Privilege requires the communication be between the attorney and prospective client, not a non-protected, non-privi-
leged source.19 In Cohen, the husband evidently
imparted information to his brother, a non-privileged communication sub-sequently shared with the attorney. Thus, were it assumed the husband’s brother communicated purportedly confidential information to the attor-ney, it would be hard to conclude the information would be confidential as to the husband. This nuance is a crit-ical one for the practitioner to keep in mind.
Thus, the weight to be given to the Rules of Professional Conduct in determining disqualification sadly remains unsettled.
Kenneth J. Weinstein, Esq,. is a former assistant district attorney, former law secre-tary, and former Vice Chair of the Grievance Committee for the Tenth Judicial District. He currently sits on the NCBA Judiciary Committee and is a member of the Law Offices of Kenneth J. Weinstein, P.C.
Michael J. Langer, an associate in the Law Offices of Kenneth J. Weinstein, is a for-mer law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s prac-tice focuses on matrimonial and family law, criminal defense and general civil litigation.
1 Tekni-Plex, Inc. v. Meyner and Landis, 89 N.Y.2d 123, 132 (1996).
2 Cohen v. Cohen, 2015 NY Slip Op 00839 (2d Dept. Feb. 4, 2015).
3 Gabel v. Gabel, 101 A.D.3d 676, 676-77 (2d Dept. 2012) (citing Tekni-Plex, Inc., supra, and other authority) (citations and quotations omitted).
4 See, e.g., Dom. Rel. Law §§ 236; 240; Jaffe v. Jaffe, 91 A.D.3d 551 (1st Dept. 2012); Snow v. Snow, 209 A.D.2d 399 (2d Dept. 1994).
5 Lucci v. Lucci, 150 A.D.2d 650 (2d Dept. 1989).6 Bongiasca v. Bongiasca, 254 A.D.2d 217 (1st Dept.
1998).7 Id., at 217.8 Messina v. Messina, 175 A.D.2d 866 (2d Dept. 1991).9 Accord Martin v. Martin, 224 A.D.2d 597 (2d Dept.
1996). See also Gabel v. Gabel, 101 A.D.3d 676 (2d Dept. 2012) (disqualification denied where the husband hired the attorney the wife previously utilized to form a corporation).
10 Sullivan v. Cangelosi, 84 A.D.3d 1486 (3rd Dept. 2011).
11 Id., at 1487.12 Mayers v. Stone Castle Partners, LLC, 2015 NY Slip
Op 00295 (1st Dept. Jan. 8, 2015).13 Bernacki v. Bernacki, 2015 NY Slip Op 25004 (Monroe
Co. Sup. Ct. 2015).14 C.F. v. J.F., 1/24/14 New York Law Journal (Rockland
Co. Fam. Ct., decided Jan. 9, 2014).15 Becker v. Perla, 2015 NY Slip Op 01720 (1st Dept.
Feb. 26, 2015). However, in Becker, no reference was made to Rule 1.18.
17 Cohen v. Cohen, 2015 NY Slip Op 00839 (2d Dept. Feb. 4, 2015).
18 Id., at *2-3.19 Rossi v. Blue Cross and Blue Shield of Greater
New York, 73 N.Y.2d 588, 589 (1989). See also People v. Barbara, 40 Misc.3d 1228(A), 975 N.Y.S.2d 711 (Table), 2013 NY Slip Op 51337(U), at *5 (Dist. Ct., Nassau Co. Aug. 13, 2013).
COUNSEL ...
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22 n May 2015 n Nassau Lawyer
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