New Yorker James R. Silkenat has taken thereins as president of the 400,000-member AmericanBar Association. In our recent interview, he pre-sented with a brilliant mind and as important, a bigheart.
A partner in the corporate department of Sulli-van & Worcester, LLP, Silkenat grew up inShawnee Mission, Kansas, the son of a grocerystore owner. He received his bachelor of arts degreefrom Drury College and law degree from the Uni-versity of Chicago School of Law. He headed eastand earned a masters degree in international law atNew York University School of Law. He lives onthe west side of Manhattan. His daughter works ata resort in Nantucket and his son is a history profes-sor at The University of Edinburgh in Scotland.
How does one get to be President of the Ameri-can Bar Association? Silkenat served as co-chair ofthe ABA Solo and Small Firm Leadership Coali-tion; chair of the Section of International Law; andchair of the Standing Committees on Membershipand Constitution and Bylaws. He was chair of theABA’s House of Delegates for the New York dele-gation from 2000 to 2009 and a member of theABA Board of Governors and its Executive Com-mittee, as well as national chair of the Fellows of theAmerican Bar Foundation. He found time to earn aliving.
Silkenat was a member of the Council on For-eign Relations and the American Law Institute; pastchair of the Lawyers Committee for InternationalHuman Rights; past chair of the Commission on theWorld Justice Project and of the Council of NewYork Law Associates; past fellow in the U.S. StateDepartment Scholar/Diplomat Program; and for-mer legal counsel at the International Finance Cor-poration of the World Bank Group. His books in-clude “The Law of International Insolvencies andDebt Restructurings,” “The Imperial Presidencyand the Consequences of 9/11: Lawyers React tothe Global War on Terrorism,” and “The ABAGuide to International Business Negotiations.”
This is just part of his resume.Of particular interest to Brooklyn Bar Associa-
tion members, the ABA is looking for ways to helpsolo practitioners and small practices. “We have aleadership coalition and state delegates to addresstheir concerns,” says Silkenat. “One of the firstthings they recommended, and the ABA enactedlast year, was a reduction in the ABA annual mem-bership fee to $99 for solos instead of the previous-ly charged membership fee that often ran into thehundreds of dollars. We also offer discounted groupinsurance that are especially helpful to solos andsmall firms.”
What are Silkenat’s goals as president?“Following sequestration, which hit the courts
and legal service organizations that represent the
poor, we are pushing back to restore adequate fund-ing,” he explains. “Sequestration has hit manylawyers and courts hard. Its $350 million reductionin the federal judiciary’s budget for 2013 has result-ed in an eight percent cut to federal defender offices,for example, which imperils poor people accused ofcrimes.
“My first act as president was to contact eachmember of Congress. Sequestration is contrary tothe constitution. In New Hampshire, for example,the courts have been closed to everything but crim-inal matters. We are educating the profession andthe public. We are in constant contact with Con-gress.”
Along these lines, Silkenat has been in the fore-Please turn to page 3
By: Mark Diamond, Esq.
ABA President James Silkenat
Brooklyn Bar AssociationAnnual Foundation Dinner
“Robitis.....don’t catch it! When youleave the bench, you leave your robe inchambers,” as stated by the very humble andgracious Honorable William E. Kuntz II inhis acceptance speech . That was just one ofthe many pearls of wisdom given to the over700 attendees from the dais at the BrooklynBar Association Annual Foundation Dinneron December 9, 2013. Once again, the din-ner was a huge success; drawing lawyersfrom diverse private practice areas, the courtsystem and the government. Our Judiciarywas well represented as always, includingJudges from the Civil Court, the FamilyCourt, the Supreme Court, the Appellate Di-visions and the Federal Bench. This annualformal affair at the Brooklyn Marriot is al-ways a fantastic opportunity for the mem-
bers of the legal community to dress up, gettogether and enjoy the fantastic food anddrink at the Brooklyn Marriott Hotel. Butthat is not the only reason for the gathering!We also come together yearly, as membersof the bar, to recognize the outstandingachievements of our Honorees, the membersof our very own legal community that havedistinguished themselves as attorneys andjurists.
This year the Association recognized thefollowing Honorees for their accomplish-ments and contributions to the legal com-munity: Honorable William E. Kuntz II,United States District Court Judge for theEastern District of New York, HonorableLawrence Knipel, Administrative Judge forCivil Matters for the Second Judicial Dis-trict and the Brooklyn Bar Association’sown John Lonuzzi, Esq. who is a past-pres-ident and a vital member of our organization
By: Jason D. Friedman, Esq. and Aimee L. Richter, Esq.
Please turn to page 6LEFT-RIGHT: President Andrew Fallek, Rebecca Rose Woodland, Dinner chair, andHon. William F. Kuntz III.
In this regular interview series, the VolunteerLawyers Project highlights some of the remark-able volunteer attorneys who allowthe VLP to assist over 2000 low-in-come Brooklyn residents each year.
Bruce Weiner, a partner in theBrooklyn law firm of RosenbergMusso & Weiner, and an activemember of the Brooklyn Bar Asso-ciation, has been a dedicated VLPvolunteer since 2003, when hebegan representing indigent clientsin pro bono bankruptcy cases. In2005, Bruce received the BrooklynBar Association’s Freda S. Nis-newitz Award for his commitmentto Pro Bono work. Below, he an-swers a few questions about his in-volvement with the VLP.
The VLP: Tell us a bit about your back-ground and education.
Bruce Weiner: I graduatedfrom Washington University Schoolof Law in St. Louis, Missouri in1977 and was admitted to the NewYork Bar in 1978. In 1994, I joinedthe Brooklyn law firm now knownas Rosenberg, Musso & Weiner andhave since become a Partner in thefirm. In my years since starting mylegal practice here in Brooklyn Ihave been involved in severaltrustee litigation cases in addition tothe 30 plus years representing bothdebtors and creditors in bankruptcy.
The VLP: How did you becomeinvolved with the Volunteer
VLP Volunteer Spotlight:Bruce Weiner
Bruce Weiner Please turn to page 5
James SilkenatAmerican Bar Association President
Brooklyn Bar Association DinnerBy Jason D. Friedman, Esq.And Aimee L. Richter, Esq. .................................Pg. 1ABA President James SilkenatBy Mark Diamond, Esq. ..........................................Pg. 1VLP Volunteer Spotlight: Bruce Weiner.........Pg. 1The DocketCompiled by Louise Feldman .............................Pg. 2New Members, Nov. to Dec. 2013 .................Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE .................................Pg. 2Respectfully SubmittedBy Andrew M. Fallek, Esq. ......................................Pg. 3The State of EstatesBy Hon. Bruce BalterAnd Paul S. Forster, Esq. ............................................Pg. 4Kings County Launches Pro Bono Matrimonial ProjectBy Dayrel S. Sewell, JD, MPH .............................Pg. 5
How to Pick an Ethical Domain NameBy Andrew Cabasso, Esq. .......................................Pg. 5Roll Call ..................................................................Pg. 9ASurvey of Settlements & Verdicts in Kings Supreme By Hon. Donald Scott KurtzAnd Shelly Werbel, Esq...........................................Pg. 10Medical Malpractice UpdateBy John Bonina, Esq. .............................................Pg. 11
What’s Inside
Page 2, BROOKLYN BARRISTER JANUARY, 2014
IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
BROOKLYN BAR ASSOCIATION 2012-2013Andrew M. Fallek, PresidentRebecca Woodland, President-ElectArthur L. Aidala, First Vice-President
Hon. Frank R. Seddio, Second Vice PresidentAimee L. Richter, SecretaryDavid M. Chidekel, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
CLASS OF 2014Theresa CiccottoJoseph R. CostelloPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. Richman
CLASS OF 2015Frank V. CaroneFidel F. Del ValleLara GenovesiRichard S. GoldbergJaime LathropAnthony W. Vaughn, Jr.Glenn Verchick
CLASS OF 2016Elaine N. AveryAemena D. GayleDavid J. HernandezRichard KlassAnthony J. LambertDeborah LashleyJoseph S.Rosato
Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovanna
David J. Doyaga, Sr.Joseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley
Mark A. LongoDomenick NapoletanoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
TRUSTEES
NEW MEMBERSMONTHS OF NOVEMBER & DECEMBER 2013
MARIA ALEXANDERAMEER BENNO
PETER DE VRIESDAVID FULTZ
MARY J. GOODWINLESLIE A. GRANGERPETER HANSCHKESERGIO JIMENEZ
MATTHEW KELLERPAUL G. MEDEROS
AMARI RICHARDSONALEXANDER SHULMAN
VICTORIA SPODEKJEREMY SUSSMAN
EVELYN SYLVESTERWENDY TOBIAS
STUDENT MEMBERSALET BROWN
TRACY GOLDBERGBRIAN HANLEY
FERRIS KIMMICHAEL MULIAALEXANDER OU
LEGAL BRIEFS
Included below are events which have been scheduled for the period January 13, 2014 through February 28, 2014
Compiled by Louise Feldman
January 13, 2014 Monday Foundation Public Education ProgramAuditorium, 6:00 PM
January 16, 2014 Thursday Columbian Lawyers Association luncheon following Mass for Hon. Anthony J. CutronaAuditorium, 1:00 PM
Kings County Criminal Bar Association CLEAuditorium, 6:00 PM
January 20, 2014 Monday In observance of the Rev. Martin Luther King, Jr. Day, the, Brooklyn Bar Association Building,theFoundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.
January 21, 2014 Tuesday BWBA Board Meeting Board of Trustees Room, 5:30 PM
BWBA CLE Auditorium6:00 PM
January 23, 2014 Thursday Technology & Web Design CLEAuditorium, 6:00 PM
January 28, 2014 Tuesday Nathan R. Sobel Inns of Court MeetingAuditorium, 5:00 PM
January 30, 2014 Thursday Grievance Committee MeetingBoard of Trustees Room, 12:45 PM
February 3, 2014 Monday VLP CLE Reception and pilot project Pro-Bono Matrimonial MatterAuditorium, 6:00 PM
February 4, 2014 Tuesday VLP Board MeetingBoard of Trustees Room, 5:30 PM
Tuesday CPLR CLEAuditorium, 6:00 PM
February 5, 2014 Wednesday Foundation Public Education ProgramAuditorium, 6:00 PM
February 6, 2014 Thursday CLE Media Rights followed by Nets home gameBarclay Center, 6:00 PM
February 17, 2014 Monday In observance of President’s Day, the Brooklyn Bar Association Building, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.
February 18, 2014 Tuesday BWBA Board MeetingBoard of Trustees Room, 5:30 PM
February 25, 2014 Tuesday Sobel Inns of Court MeetingAuditorium, 5:00 PM
Young Lawyers Section and Pro Bono Committee Wine Tasting Reception to benefit the VLPThe Wine Exchange, 6:00 PM
February 27, 2014 Thursday Kings County Criminal Bar Association CLEAuditorium, 6:00 PM
JUDICIAL RECOGNITIONCongratulations to the following Brooklyn Bar Association
members who were elected in November to the Kings Countybench!
Elected to the Supreme Court, Kings County were Hon.Desmond Green, Hon. Dawn Jimenez-Salta and Hon. BettyWilliams.
Re-elected to the Supreme Court, Kings County were Hon.Bernard Graham and Hon. Kenneth Sherman.
Re-elected to the Civil Court of the City of New York wereHon. Kathy King and Hon. ShawnDya Simpson.
Congratulations to Brooklyn Bar Association trusteeTheresa Ciccotto who was elected to the Civil Court of the Cityof New York.
Former trustee and Associate Justice of the Appellate Divi-sion, Second Department Hon. John Leventhal along withBrooklyn Bar Association Past President Roger Bennet Adlerarranged a program commemorating the 75th Anniversary ofKristallnacht, which was held on Saturday night November 9,2013 at Congregation Mount Sinai. Also participating in theprogram were former Chief Judge of the State of New YorkHon. Sol Wachtler, Brooklyn Bar Association member RabbiJoseph Potasnik, of the New York Board of Rabbis and RabbiSeth Wax the new spiritual leader of Congregation Mount Sinai.
Former trustee and former Associate Justice of the Appel-late Division, Second Department Hon. Ariel Belen received aSpecial Recognition Award from The Cervantes Society and the2013 Hispanic Heritage Committee at a program on October 30,2013 at the Brooklyn Bar Association. Among the speakers atthat event were Court of Appeals Associate Judge Hon. JennyRivera and the Presiding Justice of the Appellate Division, FirstDepartment Hon. Luis A. Gonzalez along with Major Luz G.Bryan.
Former Brooklyn Bar Association president Hon. BarryKamins has been selected to receive the New York State Bar As-sociation Criminal Justice Section Vincent E. Doyle, Jr Awardfor outstanding judicial contribution to the Criminal Justice Sec-tion during the state bar annual meeting on January 30, 2014 atthe New York Hilton Hotel. Earlier this month Justice Kamins,who is the Administrative Judge for the Criminal Courts of theCity of New York, was selected to be the Chief of Policy andPlanning of the State of New York Unified Court System.
KUDOS AND PROFESSIONAL RECOGNITIONCongratulations to Brooklyn Bar Association trustee
Deborah Lashey, an Executive Assistant District Attorney,Kings County, for the past 38 years, who retired in October.
Congratulations to Brooklyn Bar Association CLE Com-mittee member Ruth M. Gursky, who was appointed last yearby the National President of Hadassah as Co-Chair of the Na-tional Attorneys Council of Hadassah. In this new volunteer po-sition she will continue on the national board where she hasserved by virtue of her position as the president of the New YorkChapter.
Trustee Steven H. Richman, the General Counsel of theBoard of Elections of the City of New York was a featured
speaker at a New York County Lawyer Association YoungLawyers Committee program held on November 13, 2013. Thatprogram was entitled “So You’re Interested in a Career in Poli-tics: Opportunities and Ethical Considerations for Lawyers.”
On October 21, 2013 at Steiner Studios, Brooklyn Bar As-sociation trustee Fern Finkel along with Brooklyn Bar Associa-tion member John C. “Chip” Gray, the recently retired Man-aging Attorney of Brooklyn Legal Services Corp A, and NewYork State Bar Association Past President Stephen P. Youngerwere honored at the 23rd Anniversary Gala Reception of TheBrooklyn Volunteer Lawyers Project. Also honored that eveningwas the immediate past chair of the Brooklyn Bar AssociationYoung Lawyers Section Robin Goeman.
On November 7, 2013 The Catholic Lawyers Guild underthe leadership of trustee Joseph S. Rosato along with RobertMusso, president of the Columbian Lawyers Association ofBrooklyn, hosted a Red Mass at the Saint James Cathedral Basil-ica. Most Rev. Paul R. Sanchez, D.D., Auxiliary Bishop of theDiocese of Brooklyn was the Main Celebrant and Homilist.
Congratulations to Brooklyn Bar Association memberCheryl Solomon and her husband David Rappaport whoare producing a anew off Broadway musical — “Love in theMiddle Ages,” which will open on February 14, 2014 at Stage72 on 72nd and Broadway. A show description and ticket infor-mation is available at: www.browntickets.com/event/539690.
PROFESSIONALANNOUNCEMENTSFormer co-chair of the Brooklyn Bar Association’s Surro-
gates Court Committee Lynn S. Okin has announced the for-mation of Okin Edelman P.C. Formerly a member of MandellMandell Okin & Edelman she will continue to practice in theareas of commercial and residential real estate, estate plan-ning, estate administration and business transactions . OkinEdelman P.C. is located at 3000 Marcus Avenue, Lake Success,NY 11042. The direct dial telephone number is 515-303-1451and her email is [email protected].
BEREAVEMENTS The Brooklyn Bar Association extends its deepest sympa-
thy to Mrs. Jesse Cohen on the passing of her husband J. JesseCohen on November 12, 2013. A member of the bar in Brook-lyn for over 40 years he was part of a generation of attorneyswho were active practitioners both in the end of the last mil-lennium and through the first two decades of the 21st century.
The Brooklyn Bar Association extends its deepest sympa-thy to the Lindenbaum family on the passing of Samuel H.Lindenbaum, formerly of Kramer, Levin, Naftalis & FrankelLLP who passed away on August 20th.
The Brooklyn Bar Association extends its deepest sympa-thy to Craig Eaton on the passing of his father last month.
The Brooklyn Bar Association extends its deepest sympa-thy to Rosario M. D’Apice on the passing of his fatherAnthony Albert D’Apice on December 17, 2013.
_____________________________________________Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE, the Executive Director of the
Brooklyn Bar Association and its Foundation. Items for inclusion in “Legal Briefs” should be emailed [email protected], faxed to 718-797-1713 or mailed to 123 Remsen Street, Brooklyn, NY 11201-4212.
THE DOCKET
JANUARY, 2014 BROOKLYN BARRISTER, Page 3
Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 66 No. 4 January, 2014. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street,Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Bar-rister, 123 Remsen Street, Brooklyn, NY 11201-4212.
Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman
Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon
You will probably be receiving thisissue in 2014 but I am writing this article afew days after our Annual Dinner and peo-ple are still coming up to me to tell me howmuch they enjoyed the event. Kudos go toour Annual Dinner Chair, President-electRebecca Rose Woodland who improvedthe menus, music, flowers, lighting and theoverall tone of the event. In addition to theexcellent food, our members told me theyliked the quicker pace and less formal toneof the presentations, and really appreciatedthe humorous stories and quips from all thespeakers, including Monsignor Cassatoand Rabbi Potasnik.
Great award recipients make for a greatevent and Judge William F. Kuntz III, Jus-tice Lawrence Knipel and Past PresidentJohn Lonuzzi did not disappoint. After our
famously robust cocktail hour, I am alwaysconcerned about quieting down the roomwhen the speeches start. I am happy to saythat you could hear a pin drop when theaward recipients spoke – except for themany laughs and applause that their re-marks drew. A number of people used thesame verbiage to describe the speakers’words. They said they felt that the awardrecipients spoke to them “from the heart.”I agree. I thank each of them for their hardwork in making this dinner such a success.
Hon. Barry Kamins and Hon. Robert J.Miller did a great job introducing JudgeKuntz and Justice Knipel respectively, andI was honored that my good friend JohnLonuzzi asked me to make the award pres-entation to him.
The evening was also a financial suc-cess, exceeding last year’s dinner in net re-ceipts. This year we had 14 “Patrons” (themost expensive donation category), a new
record for the Foundation. I want to espe-cially thank the family, friends and busi-ness colleagues of past president JohnLonuzzi for their financial support. Wecould not have achieved this level of suc-cess without them. I also thank past presi-dents Domenick Napoletano and Greg Cer-chione who continue to work behind thescenes to make this event a success.
As they say in golf, I have reached the“turn,” the halfway point, of my presiden-cy. It is sometimes joked around 123 Rem-sen Street that although the term of officeformally ends on May 31st, it actually endsat the Annual Dinner. I hope that is not truebecause the current officers and I certainlyhave a lot more to do before the end ofMay 2014. In addition to making our oper-ation more efficient and user friendly forthe members, we will be working withother bar associations to address significant
R E S P E C T F U L L Y S U B M I T T E D
President Andrew M. Fallek, Esq.
By Andrew M. Fallek, Esq.
PRESIDENT’S MESSAGE
Please turn to page 10
front of developing a legal access job corps toaddress both the growing unmet legal needs of thepoor in the civil arena, as well as the underemploy-ment of recent law school graduates.
“The legal needs of the poor are not being met,”insists Silkenat. “In New York alone, 2.3 millionpeople are unrepresented in civil proceedings an-nually. Many low and moderate income peoplecannot find or afford a lawyer. Many people in cer-tain parts of the country cannot even find a lawyer.Yet, the legal industry is not able to absorb the num-ber of young lawyers who are graduating from lawschool each year, many of whom graduate withstaggering debt from student loans.
“In February, the ABA’s Legal Access JobCorps Task Force will release its report on how wewill be addressing these problems, both on a na-tional and local level. Our goal is to create a clear-inghouse to match young lawyers to organizationsthat provide salaried legal assistance to the poor.
“There is an over-abundance of young lawyerswe can engage and an over-abundance of peoplewho cannot afford an attorney. By creating bestpractices and a matching program, young lawyerswill be able to train at lower-than-market wagesand get the experience they need while serving, andbeing paid by, the legal organizations that representthe underserved poor.”
Many legal authorities in America, includingChief Justice Jonathan Lippman, are working to-ward a time when legal services will be provided topeople unable to afford an attorney in many civilarenas, such as foreclosure and landlord tenantcourt. Legal services for those incarcerated on im-migration matters may soon be mandated.
“Assigned counsel is not provided to peoplebeing detained for alleged immigration violationsand that is indefensible,” says Silkenat. “It is a bro-ken system. Counsel must be made available tothese people and must be paid by the system that isholding them. That is what our constitution re-quires. Consider, too, the cost of housing all of thepeople being held while they await hearings.”
“In the next few weeks, the ABA will be re-leasing its recommendations to address the rights ofimmigrants held in detention and legislation con-
cerning immigration in general. We will be active-ly educating the public and pushing Congress to in-stitute a method for addressing this situation.”
Silkenat and the ABA are also advocating forlegal education reform. “How are students to payfor the ever-increasing costs of law school? This isa toughie. We will be recommending alternativesto a strict three-year classroom education, perhapstwo years with a practicum, as well as reducingtenure and the cost of accreditation. There will bepush back, I know. But something has to be done.”
Two other areas in which Silkenat takes a par-ticular interest are gun violence and election re-form.
“The ABA supports laws in compliance withthe Second Amendment,” notes Silkenat, “butwhich restrict the sale and possession of assaultweapons, support comprehensive backgroundchecks, and outlaw dangerous straw purchases.There is lot of misinformation around and we areactively engaged in educating the public and legis-lators.
“Concerning election law, the ABA supportslegislation that controls gerrymandering of districtsfor party rather than public purposes. We areagainst procedures that make it hard for people tovote, including restrictive voter identification rulesand procedures that create long lines at polls.”
Silkenat was questioned about whether theAmerican Bar Association held import for Brook-lyn attorneys. In preparing for this interview, I tal-lied the amount I pay to all of the bar associationsand state licensing organizations to which I belongand it is over $4000, a lot considering that I earnjust $20,00 a year. So why should an attorney inBrooklyn be a member of the ABA?
“There are things that only a national organiza-tion can do to protect lawyers,” says Silkenat. “Forexample, Congress was looking to pass a lawdeeming lawyers to be financial institutions subjectto onerous and strict recording keeping rules. Wekilled it. No other organization would have beenwilling and able to do that. Legal aid services inthis country would have been gone by now if notfor the ABA and that’s not hyperbole.”
“We offer educational programs and materialsthat are the best in the country. And being a mem-ber distinguishes you. It gives you an opportunityto participate in the association, which providescontacts, knowledge, and better jobs.”
ABA President...Continued from page 1 LAST CALL
For the Third Annual BarristerFiction Writing ContestThe Rules are as Follows:1. All submissions must be received no later thanJanuary 30, 2014 at 5:00 pm by e-mail to GlennVerchick, Editor-in-Chief, Brooklyn Barrister [email protected] in pdf format.2. All submissions must be works of fiction. Itcan be a short story or chapter from a novel andcannot exceed 10,000 words.3. Contest limited to lawyers, judges, court per-sonal, law firm employees and bar associationemployees, who hold said position in the State ofNew York at the time of submission. Not limitedto Brooklyn Bar Association members.4. Brooklyn Bar Association Editorial Boardmembers are excluded.5. The winner will be judged by the BBA EditorialBoard and the winner will have his or her pieceof fiction published in a 2014 issue of the Brook-lyn Barrister.
GOOD LUCK!
Page 4, BROOKLYN BARRISTER JANUARY, 2014
T H E S T A T E O F E S T A T E S
If the acorn storing habits of our ProspectPark squirrels is any guide, we may be in for aharsh winter. To help you fill your indoor timewe offer some interesting cases involving theauthority of the Surrogate’s Court to fix and de-termine the fees of out of state attorneys repre-senting the fiduciary of a New York estate; lim-its on the Surrogate’s Court’s jurisdiction overforeign business entities in connection with dis-covery proceedings; a refusal to quash a Sub-poena directed at a respondent’s personal bank-ing records in a discovery proceeding in whichit was alleged that the respondent used a powerof attorney to transfer the principal’s funds toherself; the prohibition of a fiduciary from ap-pearing pro se; the granting of leave to file lateobjections to probate; what constitutes openand notorious acknowledgement of paternitysufficient to allow a non-marital child to inher-it; the lack of jurisdiction of a New York Surro-gate’s Court to compel a non resident fiduciaryof a Florida Trust to account in New York at thebehest of a New York resident beneficiary; theallowance of a renunciation by the estate of apost deceased spouse to achieve estate tax sav-ings; and the establishment of a small Supple-mental Needs Trust without bond by aGuardian with funds arising out of an estate.
Surrogate’s Court Has Authority to Fixand Determine the Fees of out of State At-torneys Representing the Fiduciary of a NewYork Estate-
Under the decedent’s will her estate passedto her daughter, her son, and to her three grand-children. The decedent’s will was admitted toprobate in the Westchester County Surrogate’sCourt, and letters testamentary were issued tothe decedent’s daughter, the nominated execu-tor, who was a Massachusetts resident. Thedaughter retained a Massachusetts-based lawfirm, to render legal services to her in her rep-resentative capacity as the executor of the es-tate. The Massachusetts firm performed exten-sive legal services on behalf of the estate. Theservices included the defense and settlement ofan audit and inquiries by the Internal RevenueService, preparation of the petition for probate,preparation of the inventory of assets for filingwith the Surrogate’s Court, extensive corre-spondence and advice in connection with theson’s refusal to cooperate with aspects of theadministration of the estate or abide by the will,and other legal services which the executorpaid absent any protest. After the executormoved to New York, she retained successorcounsel. During the time that it represented theestate, the Massachusetts firm, which did notmaintain an office in New York, retained NewYork law firms to appear as counsel on the ex-ecutor’s behalf in the Surrogate’s Court. There-after the executor filed a petition for the judicialsettlement of a final account of the estate whichincluded a request that the Surrogate’s Courtallow and fix the amount of legal fees and dis-bursements owed to the Massachusetts firm.The executor averred in her petition that thefirm had been paid the sum of $131,260.70, andthat legal fees for “ancillary services” in thesum of $2,743.13 remained outstanding. Theson and grandchildren filed objections, interalia challenging the counsel fees that had al-ready been paid by the estate to the Massachu-setts firm. While the objections were pending,an amended and supplemental petition for thejudicial settlement of the final account wasfiled showing the sum of $12,549.33 remainingunpaid to the Massachusetts firm. By Stipula-tion, the parties settled the objections to the ac-count with the exception of the attorneys’ fees,and the Massachusetts firm was directed by theCourt to file a Supplemental Affidavit of LegalServices encompassing all of its legal fees anddisbursements for Court review, determinationand award. The Order and stipulation furtherprovided that in the event that the Surrogate’sCourt directed that legal fees be refunded to theestate, 60 percent of the fees refunded would bepaid to the son and 40 percent of the fees re-funded would be paid to the grandchildren.
In compliance with the Order and stipula-tion, the Massachusetts firm filed an affidavitof services and a supplemental affidavit ofservices, detailing the services it provided tothe executor, and requested, in the event thecourt fixed its legal fees, the sum of$161,557.02, of which $133,079.54 represent-
ed fees, expenses, and ancillary services that al-ready had been paid. The Surrogate’s Courtsubsequently directed the Massachusetts firmto submit a memorandum of law concerning thecourt’s jurisdiction to fix the fees of an out-of-state law firm. In its memorandum of law, theMassachusetts firm took the position that it wasa Massachusetts law firm that had performedlegal services solely in Massachusetts based ona Massachusetts retainer agreement, and sub-mitted that under these circumstances, theCourt did not have jurisdiction to review thereasonableness of the fees it had charged pur-suant to its retainer agreement with the execu-tor, and fix a reasonable fee. The Massachusettsfirm additionally asserted that the executor hadnever objected to any aspect of the legal fees ithad charged, and that neither the son nor thegrandchildren had identified any specific legalservice they found objectionable. The Surro-gate’s Court determined that it did not have au-thority pursuant to SCPA §2110 to fix and de-termine the Massachusetts firm’s fee. Relyingon Judiciary Law §470, the Court reasoned thatit could only fix the fee of an attorney for the fi-duciary and order the fee to be paid out of theestate “if that attorney has an office for themaintenance of business in New York” Howev-er, the Court also determined that it had the au-thority to direct the return to the estate of coun-sel fees which had been paid to an out-of-stateattorney. Accordingly, it concluded that theMassachusetts firm’s application for legal feeswas subject to dismissal, and that the Massa-chusetts firm must refund to the estate all feesit had been paid, totaling $133,079.54. A De-cree to that effect then was issued by the Surro-gate’s Court. The Massachusetts firm appealedto that part of the Decree as directed it to refundthe legal fees it had been paid. HOLDING-The Appellate Division found that the Surro-gate’s Court erred in concluding that it lackedsubject matter jurisdiction to fix and determinethe compensation owed to the Massachusettsfirm for services rendered to the estate, andheld that the Surrogate’s Court should havemade a determination as to the fair value of theMassachusetts firm’s services, rather than di-rect that the entire fee be returned, and direct arefund only of such fees paid to the Massachu-setts firm that it considered to have been paid inexcess of what it determined to be the fair valueof the Massachusetts firm’s services to the es-tate pursuant to SCPA §2110. The Appellate Di-vision stated that the New York State Constitu-tion grants Surrogates jurisdiction over all ac-tions and proceedings relating to the affairs ofdecedents, probate of wills, administration ofestates and actions and proceedings arisingthereunder or pertaining thereto. The AppellateDivision added that in addition to the constitu-tional mandate, statutorily the Surrogate’sCourt is required to exercise full and completegeneral jurisdiction in law and in equity to ad-minister justice in all matters relating to estatesand the affairs of decedents by determiningquestions that arise between any parties to theaction or between any party and any other per-son having any claim or interest therein, overwhom jurisdiction has been obtained. The Ap-pellate Division pointed out the pursuant toSCPA §2110, the Surrogate’s Court has the au-thority to fix and determine the compensationof an attorney for services rendered, inter alia,to a fiduciary of an estate, and that where suchattorney has already received or been paid anamount in excess of the fair value of his or herservices as thus determined the Court is author-ized to direct him or her to refund the excess.The Appellate Division added that with regardto the Surrogate’s Court’s supervision of attor-ney compensation for services rendered, SCPA§209 grants the Surrogate’s Court all of thepowers that the Supreme Court would have inlike actions and proceedings. The Appellate Di-vision noted that for the Surrogate’s Court todecline jurisdiction, it should be abundantlyclear that the matter in controversy in no wayaffected the affairs of a decedent or the admin-istration of his estate. The Appellate Divisionreasoned that there was no reason why the non-residence of the lawyer and his nonadmissionas an attorney in the Courts of New Yorkshould in any way affect the Surrogate’sCourt’s subject matter jurisdiction concerningfees earned by an out-of-state attorney repre-senting the fiduciary of a New York estate. TheAppellate Division ruled that as the approval ordisgorgement of legal fees already paid to the
Massachusetts firm would, one way or theother, affect the administration of the dece-dent’s estate, the Surrogate’s Court’s determi-nation that it lacked subject matter jurisdictionwas error. The Appellate Division stated thatinstead the Surrogate’s Court should fix and de-termine the fair compensation of the Massachu-setts firm for services rendered. The AppellateDivision also found that the Surrogate’s Courthad erred in relying upon Judiciary Law §470to support its conclusion that it only could fixthe fee of an attorney for the fiduciary andorder the fee to be paid out of the estate if thatattorney had an office for the maintenance ofbusiness in New York. The Appellate Divisionstated that Judiciary Law §470 merely permitsattorneys having offices in New York to residein an adjoining state, and that nothing in thelanguage of that provision, or in the languageof SCPA §2110, explicitly limited the authorityof the Surrogate’s Court with regard to com-pensation to out-of-state attorneys. The Appel-late Division added that the Surrogate’s Courterred in directing the return of all of the feespaid to the Massachusetts firm without firstfinding that the amount paid to the Massachu-setts firm was excessive. The Appellate Divi-sion stated that the Surrogate should have con-sidered the traditional factors in determiningthe fair value of the legal services provided bythe Massachusetts firm before rendering a deci-sion requiring the refund of all of the fees since,pursuant to SCPA §2110(3), in the event thatany such attorney has already received or beenpaid an amount in excess of the fair value of hisservices as thus determined the Court is author-ized to direct him to refund the excess. If, afterconsidering the appropriate factors, the Surro-gate finds that the Massachusetts firm chargedthe estate an amount in excess of the fair valueof its services, then the Surrogate would be au-thorized to direct a refund, statutorily limited todisgorgement only of the excess. Accordingly,the Surrogate’s Decree was reversed, the Mass-achusetts firm’s application for legal fees in thesum of $161,557.02 was reinstated to the extentthat it sought, in effect, to retain legal fees inthe sum of $133,079.54, which already hadbeen paid to it by the estate, and the matter wasremitted to the Surrogate’s Court, WestchesterCounty, for further proceedings. Matter ofAskin, N.Y.L.J. 12/6/13, p. 21, c. 1 (2nd Dept.,2013)
Surrogate’s Court’s Jurisdiction overForeign Business Entities Limited in Con-nection With Discovery Proceedings- Thedecedent was survived by his wife and threechildren. The decedent’s will appointed thewife as executor of the estate, and, along withthe three children, as cotrustee of a testamen-tary credit shelter trust. The wife was the life-time beneficiary of the trust, and the three chil-dren were the remainder beneficiaries. Thewife commenced a discovery proceeding pur-suant to SCPA §2103 alleging that, to the detri-ment of the estate and the trust, one of her sonshad mismanaged nine closely held real estateentities, the shares of which variously wereheld by the wife, the son, and the trust. The Sur-rogate’s Court directed the son and the entitiesto submit to depositions regarding their respec-tive assets, in order to determine which of suchassets should be paid or conveyed to the wife inher capacity as executor of the decedent’s es-tate. The Order to attend also directed the sonand the entities to produce their respectivebooks and records, including articles of incor-poration, management agreements, loan agree-ments, cash receipts journals, and shareholderagreements. Thereafter, the Surrogate’s Courtgranted that branch of a motion of the son andthe entities which was to dismiss the petitioninsofar as asserted against three of the entities,based on their domicile in a foreign state. Whilethe court agreed that it lacked personal jurisdic-tion over the foreign entities, it noted its undis-puted personal jurisdiction over the son, themajority holder of a membership interest in, orsole operator of, the foreign entities, which en-titled the petitioner to inquire of the son regard-ing, inter alia, his operation and managementof the foreign entities. The wife served the sonwith authorization forms to execute on behalfof the foreign entities, providing for the releaseof their respective books and records (here-inafter the authorizations), so that the booksand records could be provided to various thirdparties. The son and the remaining entitiesmoved, inter alia, for a protective order reliev-
ing the son of the obligation of executing theauthorizations on behalf of the foreign entities,based on the established lack of jurisdictionover the foreign entities. The motion was de-nied and the Surrogate’s Court directed the sonto execute and deliver the authorizations. TheSurrogate’s Court noted the broad parametersof discovery to which a fiduciary is entitledunder SCPA §2103, and held that its lack ofpersonal jurisdiction over the foreign entitieswhich were the repositories of the documentssought, was irrelevant, and the question waswhether the subject documents were discover-able under SCPA §2103. The Surrogate’s Courtalso held that the wife absolutely was entitledto seek the production of documents to aid inher inquiry against the son, and denied thatbranch of the motion which was to relieve theson of the obligation of producing authoriza-tions for the release of documents from the for-eign entities. HOLDING- The Appellate Divi-sion affirmed in part and reversed in part. TheAppellate Division stated that SCPA §2103provides that a fiduciary may present to theCourt which has jurisdiction over the estate apetition showing that any property or the pro-ceeds or value thereof which should be paid ordelivered to him or her is in the possession orcontrol of a person who withholds it from himor her. The Appellate Division ruled that in ac-cordance with the Surrogate’s Court’s Order,the wife was entitled to inquire of the son re-garding his operation and management of theforeign entities, and thus, properly had deter-mined that the appellants were not entitled to aprotective order with respect to the release ofdocuments relating to the management and op-eration of the foreign entities by the son, whowas a party to the proceeding over whom thecourt had personal jurisdiction. However, theAppellate Division held that by directing theson to execute the authorizations to permit gen-eral discovery of the foreign entities’ books andrecords, the Surrogate’s Court effectively as-sumed jurisdiction over the foreign entitiesafter they had been dismissed as parties basedon their non-domiciliary status. The AppellateDivision stated that inasmuch as the foreign en-tities no longer were parties to the discoveryproceeding and were not subject to the person-al jurisdiction of the Court, the Court shouldnot have denied the appellants’ motion for aprotective order in its entirety, but should havegranted it to the extent that the son would be re-quired to execute authorizations only with re-spect to those documents that related to theson’s management and operation of the foreignentities. Matter of Hersh, 109 A.D.3d 971 (2ndDept., 2013) [Authors’ note: an effective tech-nique in these situations is to have a Commis-sion issued out of the Surrogate’s Court as partof the discovery order so as to permit proceed-ings in the foreign jurisdiction where jurisdic-tion over the persons or entities may be ob-tained and their presence for examination andrecords obtained by subpoena.]
Petitioner Allowed to Subpoena a Re-spondent’s Personal Banking Records in aDiscovery Proceeding in Which it Was Al-leged That the Respondent Used a Power ofAttorney to Transfer the Principal’s Fundsto Herself- In a discovery proceeding, the re-spondent, the former attorney-in-fact for thedecedent, moved for an order quashing a sub-poena duces tecum the petitioner served upon anon-party bank, seeking the production of therespondent’s personal banking records. Peti-tioner proffered proof that the respondent hadbeen granted a power of attorney by the dece-dent and that as attorney in fact, had self-dealtby transferring money from a joint accountdecedent held with her husband to respondent’sown accounts The respondent conceded that thetwo accounts in her name into which the dece-dent’s assets were deposited were subject todiscovery, but claimed that a third had no con-nection to the decedent and should remain con-fidential. HOLDING- The Court denied themotion to quash. The Court stated that in de-ciding issues related to disclosure in civil ac-tions it had broad power to regulate discoveryto prevent abuse The Court added that the su-pervision of disclosure and the setting of rea-sonable terms and conditions therefor restedwithin the sound discretion of the trial courtand, absent an improvident exercise of that dis-cretion, its determination would not be dis-turbed. The Court pointed out that under CPLR
By Hon. Bruce M. Balter and Paul S. Forster, Esq.
Please turn to page 8
JANUARY, 2014 BROOKLYN BARRISTER, Page 5
Kings County Launches Pro Bono Matrimonial ProjectThe following is an interview with the Honorable
Jeffrey S. Sunshine, Supervising Judge for Matrimo-nial Matters, Kings County, about the February 3,2014 launch of the Kings County Matrimonial ProBono Project.
Ms. Richter: What is the Kings County Matri-monial Pro Bono Project?
Justice Sunshine: It is a pilot program thatwould allow a matrimonial judge, in certain situa-tions, to appoint pro bono counsel from a panel ofpre-screened volunteer matrimonial attorneys, to alitigant who meets the proper qualifications.
Ms. Richter: Who may volunteer? Justice Sunshine: Volunteers are matrimonial at-
torneys with a minimum of five years experience whohave agreed to devote up to twenty five hours of theirtime per year to help litigants who cannot afford coun-sel in a contested matrimonial action in Kings County.
Ms. Richter: Why is this program so vital toKings County?
Justice Sunshine: The Project will provide judgeswith an opportunity to refer unrepresented litigants incontested matrimonial cases pending in court for as-signment to volunteer counsel. There is a great need forthese kinds of services as there are so many people inour county that for one reason or another, do not havecounsel. Under the leadership of our AdministrativeJudge for Civil Matters, Justice Lawrence Knipel, weare attempting to streamline as many aspects of matri-monial litigation as possible. Having an attorney helpsmove the legal process forward, not just for the liti-gants, but for the entire system.
Ms. Richter: What kind of client can receive apro bono attorney?
Justice Sunshine: An example of the kind of
client who will be referred to the project includes anunrepresented litigant whose spouse is represented,perhaps by a union attorney. Likewise, if a litigantwho previously had court assigned counsel in a cus-tody matter now needs an attorney to handle the fi-nancial portion of the case, a pro bono attorney couldbe appointed to help finish the case. Volunteers areasked to represent litigants for financial issues only.
Ms. Richter: What kinds of tasks will the vol-unteer attorneys be asked to provide?
Justice Sunshine: Litigants can be assisted in avariety of ways. It may be as simple as completing aSworn Statement of Net Worth, Requests for Discov-ery and Inspection or a deposition to ascertain the mar-ital assets for settlement purposes. An attorney mightbe asked to do a short hearing on the issue of separateversus marital property or pendente-lite support. Per-haps the attorney will be required to explain the taxconsequences of a Qualified Domestic RelationsOrder or to review a proposed settlement agreement.
Ms. Richter: How does it actually work?Justice Sunshine: Once the Court has identified an
appropriate candidate, the Court completes the referralform and emails it to the Project Manager, who willthen randomly select a volunteer attorney from our listof attorney volunteers. The attorney will complete aNotice of Appearance and file it with the Court, requestany adjournments necessary and complete a retaineragreement with the client, which the program will pro-vide. CLE credits will be available for this pro bonowork or, if it turns out that appropriate assets or incomeexist in the case, attorneys fees can be awarded.
Ms. Richter: Can litigants contact the programdirectly?
Justice Sunshine: No. The only way an attorneygets appointed is through a referral from the Court.
Ms. Richter: What happens if I get a call to han-dle a pro bono case and I am preparing for a trial or
I have an upcoming deadline on a brief or a motion?Justice Sunshine: The program has something
called the “two pass rule.” We all understand that cer-tain times might not be good to take on a pro bonomatter. For that reason, everyone on the panel hastwo passes during the year to say no. I recognize theimportance of pro bono services. Having been in pri-vate practice, I also recognize the reality of running alaw firm and the many responsibilities that entails.We are very grateful to all attorneys who becomemembers of this panel.
Ms. Richter: With regard to court appearances,will the pro bono attorneys be required to spend timein court waiting for their cases to be called?
Justice Sunshine: I will always make an effort toidentify the cases with pro bono attorneys and try toget their cases called first. I recognize that the timethe lawyers are giving is very valuable and I will en-courage the other matrimonial judges to do the same.
Ms. Richter: What happens after an attorneycompletes the twenty-five hour requirement on thecase?
Justice Sunshine: After the twenty five hours,attorneys may stay on the case if they choose, or theymay ask to be relieved via a streamlined process ofsubmitting an order to the Court. We will make it aseasy as possible to get out of the case if the attorneyasks to do so. However, I am told that in the NewYork County program, attorneys almost always fin-ish the cases, even after the twenty five hour bench-mark is reached.
Ms. Richter: Has this program been utilized inNew York County?
Justice Sunshine: Yes. It has been very suc-cessful in New York County. Bringing it to Brooklynwas suggested by retired First Department PresidingJustice Betty Weinberg Ellerin. We consulted withJustice Ellerin and Justice Deborah Kaplan, a matri-
monial Judge in New York County with regard tohow their program is run. The input we received fromthem was invaluable. I also greatly appreciate the ef-forts of the organized bar and Brooklyn Law School.
Ms. Richter: How are the bar associations andBrooklyn Law School involved?
Justice Sunshine: They are paying for and ad-ministering the program. The Project is being co-chaired by Emily Rubin, Esq. and Maria Coffinas,Esq, and will be managed by a Project Manager, aBrooklyn Law School student, through grants ob-tained from three collaborating organizations; theBrooklyn Bar Association, the Brooklyn VolunteerLawyers Project and the Brooklyn Women's Bar As-sociation.
Ms. Richter: How many attorneys are neededfor the program?
Justice Sunshine: We need a wide array of attor-neys to handle the many cases that I am sure aregoing to present themselves. This is an opportunityto help someone through a divorce, something that isvery often a confusing and life changing event. Allvolunteers are a credit to the profession.
Ms. Richter: How can I sign up or find out more?Justice Sunshine: There will be a free Matri-
monial Law CLE and launch reception for the pro-gram on February 3, 2014 at 6:00 PM at the Brook-lyn Bar Association. I am so pleased that my col-leagues, Justice Rachel Adams and Justice DeloresThomas will be joining me that night on a panel en-titled Expectations from the Bench: MatrimonialJudges' Perspectives. For more information you cancontact either of the Co-Chairs of the project, EmilyRuben, Esq. or Maria Coffinas, Esq., or RoseAnn C.Branda, Esq, Chair of the Brooklyn Bar AssociationFamily Law Section. I look forward to seeing manymembers of the matrimonial bar at the reception andthe CLE immediately following.
Lawyers Project and what types of pro bonocases have you handled though the VLP?
BW: Another lawyer told me about the VLPand asked me if I would help. Since then, I have
handled pro bono bankruptcy matters rangingfrom the filing of consumer Chapter 7 petitionsto defending lawsuits brought by U.S. Trustees.I have also acted as a pro bono mediator on sev-eral matters. One time, I represented a child whohad a potential assault claim against her father,and I made sure that the potential claim was notdischarged. I also teach a CLE class every yearat the BBA on how to prepare a bankruptcy peti-tion, which is sponsored by the VLP.
The VLP: Why do you do pro bono work? BW: I believe very strongly in giving back
to the community where I live and work.The VLP: How do you balance your private
practice with your pro bono work?BW: I somehow manage to fit it in. It helps
to have a great staff. I also have Brooklyn LawSchool interns who assist me with the pro bonocases.
The VLP: What would you tell other attor-
neys who are thinking about volunteering withthe VLP?
BW: It is very rewarding helping peoplewho really need your help, and you will learnmuch along the way.
For more information about the VLP andhow you can become involved, contact NatalieSuna, Pro Bono Coordinator, at [email protected] or 718-624-3894, ext. 4.
Continued from page 1
VLP Volunteer Spotlight: Bruce Weiner
While this certainly is not the first article on lawfirm domain names, any article you are reading cre-ated before May 2013 is likely using outdated infor-mation regarding Google’s search engine algorithm.Understanding both the ethical rules applicable to do-main names and the mechanisms of Google’s algo-rithm will help you select an ethical and effective do-main name.
Your law firm domain name is important. It es-tablishes your firm’s brand online and tells prospec-tive clients about you. Clients should be able to reachyour firm online via your domain and email addressending in @YourDomain.com. An easy-to-remem-ber and (relatively) short domain name is crucial.Clients, prospective clients, and other attorneys willbe put off if they have to type an email [email protected].
Some important considerations when selecting adomain name are:
.Com. End of Discussion.There’s no reason you should be using a .net or
.co or .biz or any other top-level-domain that is not a
.com. It may be that your ideal domain is taken.Someone may have SmithLaw.com, but Smith-Law.net happens to be free. Do not take it. If you gowith any other top-level-domain other than .com,you will confuse your intended website visitors.
More likely than not, someone who has heard ofyour law firm and wants to find you online may tryto type in a .com web address even if you told them.net. They may misremember it and type in .com in-stead because a majority of domains are .com, not.net. .Net is counter-intuitive. Make things simple foryour intended audience. Regardless of what domainsare available, you are always better off with a .comdomain.
No HyphensIf someone has “NewYorkInjuryLaw.com” but
“New-York-Injury-Law.com” or other variations are
available, don’t go for it. Same as the reason for usinga .com domain, people are not likely going to re-member the quirks of your unique website URL.People will forget to type in the hyphen, even if youhave told them about it. Simple is better, even at theexpense of a domain name that you really wanted.When someone types in your law firm name withoutthe hyphens and is unable to find you, you may loseprospective clients. Keep it simple, keep it withouthyphens, keep it .com.
Shorter > LongerIf your law firm website’s domain is too long, it’s
a hassle for your visitors, clients, and other attorneys.Your law firm domain name should be short enoughthat your user can type it easily on a mobile phone.This should be your baseline. If you can’t type yourwebsite address on a mobile phone keyboard withoutwanting to give up partway through, you need to re-consider your domain. Up to 40% of all website traf-fic today comes from mobile devices, so a longer do-main name can mean a bigger pain for your visitor.Not to mention the fact that a longer law firm web-site domain is going to be less memorable.
KeywordsThere is a huge misconception that your domain
should contain keywords relevant to your firm (i.e.“Region-Practice-Area-Law.com”). Attorneys be-lieve this based on what they are told about searchengine optimization, namely that using relevantkeywords in their domain name will help their web-site get found by people searching in Google. Withthe most recent update to Google’s search engine al-gorithm, this is no longer the case. You do not needto be “NewYorkInjuryLaw.com.” to get found. Thismay have been true in 2009 and prior (when manyof the most recent articles on choosing a law firmdomain name were written), but it’s not true in late2014. As such, there is no need to have keywords inyour law firm domain name. You can be “John-SmithLaw.com” and get found just as easily inGoogle. It does not hurt, of course, to use keywordsin your domain, but it is not hugely advantageouseither.
EthicsWhile winninglawyers.com may sound great, it
is likely going to be problematic from an ethicalviewpoint.
In 2003, New York City Bar issued Ethics Opin-ion 2003-01, “Lawyers’ and Law Firms’ Selectionand Advertising of Internet Domain Names” - sug-gesting that a law firm’s domain name must “clearlyand conspicuously identify the actual law firm name;the domain name must not be false, deceptive or mis-leading; the name must not imply any special expert-ise or competence, or suggest a particular result; and,it must not be used in advertising as a substitute iden-tifier of the firm.” The opinion suggests that using do-mains such as bigverdict.com, bigjudgment.com,bestlawyer.com, greatattorney.com and personalin-juryexpert.com” would be unethical.
Keeping these practical and ethical guidelines inmind, my top tips for selecting a firm domain name are:
• FirmName.com — Tried and true (unless thereare 3 or more partners OR if it would be ridiculouslylong writing it out)
• FirmNameLaw.com — Instead of “Law” youcould also try “Firm”, “LawFirm”, or your firm’s or-ganization type (e.g. LLP, PLLC, PC, etc.).
• RegionPracticeArea.com — Easy for clients toremember. You’re an Albany divorce lawyer? Albany-divorcelaw.com will be easy for clients to remember.While keywords are not necessary, as mentionedabove, they may make your domain more memorable.
• InitialsofPartnersLaw.com — Short and sweet.You could also substitute “Firm” instead of “Law”.
• Chances are “PracticeAreaLaw.com” is taken,unless you’re in a very unique, new area of law.
Related Names / CybersquattingSome attorneys have common last names. To
avoid confusion, you should consider purchasingseveral variants on your name (e.g. Smithlaw, Smith-firm, Smithlawgroup, Smithandassociates, Smithle-gal, as well as .net top-level-domain extensions).Once you have purchased these domains, you canhave them redirected to your main website, so ifsomeone types in Smithfirm.com, they are redirectedto Smithlaw.com.
You may also want to get multiple variants onyour domain to avoid cybersquatting issues. Some-times other individuals will purchase domains thatappear similar to yours and effectively demand a ran-som for them. Then, you are left to either pay the cy-bersquatters a premium for the domains or haveWIPO (the international organization that presidesover domain name disputes) transfer the domain toyou. However, the WIPO arbitration proceedings cancost $1,500 or more, often making it less expensiveto pay off the cybersquatters. Thus, it may be themost practical to preempt any would-be cybersquat-ters by purchasing relevant domains and extensions.
Registering a DomainTo check out if a particular domain is available
and purchase a domain you can visit a registrar suchas enom.com, namecheap.com, or your preferred do-main-purchasing website. Often, you can get dis-counts on domain name purchases by searching forcoupon codes at websites like retailmenot.com andentering them when purchasing your domains.Around the holidays you can get really great dis-counts (for the lawyer who has everything, get himor her a good domain name).
Bonus: Domains for Specific LitigationIf you are involved in class-action litigation, it
would be a good idea to get a separate domain for thecase. For example, ChipotleLawsuit.com (yes it’s ac-tually a website for a class-action case). It can redi-rect to your law firm’s website, or a page on your lawfirm’s website dedicated to the case. It will be easyfor prospective plaintiffs to remember.
Hopefully these tips will help you choose the bestdomain name for your law firm. While many domainnames are taken, there are still plenty of opportunitiesfor relevant .com law firm domains.
Good luck choosing your law firm domain name.Ask yourself: “Does it look good on a businesscard?” What would you think if you saw an attor-ney’s website URL or e-mail address with that do-main name? Be objective and honest. Ask the opin-ion of lawyers and non-lawyers, and make sure thedomain name is the right fit for your practice.
How to Pick an Ethical Domain Name
By: Aimee L. Richter, Esq.
By: Andrew Cabasso, Esq.
Page 6, BROOKLYN BARRISTER JANUARY, 2014
Hon. David Vaughan, Hon. Barry Kamins, Lori Knipel, Hon. Lawrence Knipel, Hon. Mark Partnow.
Hon. Arthur Shack and family.Lori Knipel and Hon. Lawrence Knipel.
Nina Kurtz and Hon. Donald Scott Kurtz.
and the Brooklyn legal community. The presentation of the award to Judge
Kuntz was made by Honorable BarryKamins, Administrative Judge for CriminalMatters and New York City Criminal Courts,who noted that the Honoree had “not one”but “four degrees from Harvard.” Thereafter,Honorable Robert J. Miller, Associate Justiceof the Appellate Division, Second Depart-ment, presented the award to Justice Knipelstating that “Judge Knipel’s only agenda isadministering justice with integrity and re-spect.” The final award was presented to
John Lonuzzi, Esq. by our President andJohn’s long-time friend Andrew Fallek, Esq.,who stated “John doesn’t look for the spot-light, but the spotlight finds him due to histalent.” Several speakers acknowledged thepassing of the Honorable Theodore T. Jones,Jr, whose family was in attendance and con-tinues to honor our association with theirpresence at our events.
The program began with a powerful andstirring rendition of our National Anthemsung by Jessica Pena, who is a Court Officerin the Supreme Court, Kings County. TheInvocation was then delivered through the
thoughtful and entertaining words of Rev.Msgr. David L. Cassato. After the introduc-tion of the Dais and distinguished guests, theHonorees received their awards and sharedvarious words of wisdom, humorous anec-dotes and poignant memories with the atten-dees. The Benediction was then giventhrough the sage words of Rabbi JosephPotasnik. Dinner was then served followedby a lot of mingling and socializing amongeveryone in attendance.
The dinner was a huge success, with arecord number of Patrons Enhanced Spon-sors and Sponsors, all who helped the Foun-
dation to net over $105,000. Thanks to theirgenerosity and to all the attendees who pur-chased tickets and made this evening possi-ble. There is not enough that can be saidabout the hard work and dedication of theDinner Committee, chaired by AssociationPresident-Elect Rebecca Rose Woodland.And of course none of this would have beenpossible without the dedication of the Brook-lyn Bar Association President Andrew Fallekand Brooklyn Bar Association Executive Di-rector, Avery Eli Okin , as well as the Brook-lyn Bar Association staff, who, as always,manage to make this event look effortless.
Brooklyn Bar Association Annual Foundation Dinner
Continued from page 1
JANUARY, 2014 BROOKLYN BARRISTER, Page 7
Hon. Dora Irizzary and Hon. William F. Kuntz III. Hon. William F. Kuntz III, and Past President Barton Slavin.Second Vice President Hon. Frank R. Seddio, Hon. William F. Kuntz III, and Joyce Seddio.
Brooklyn Bar Association Annual Foundation Dinner
Past president Diana Szochet, Secretary Aimee L. Richter, Dinner CommitteeMember Hemalee Patel.
Hon. Robert Miller, Hon. Jeffrey S. Sunshine, Hon. Nancy T.Sunshine.
Annual Award Recipient John Lonuzzi, andPresident Andrew M. Fallek.
Dinner Chair Rebecca Rose Woodland, and Past President and Annual AwardRecipient John Lonuzzi.
Past President Domenic Napoletano, Gregory LaSpina, Robert Musso, and Past President Gregory T. Cerchione.
Page 8, BROOKLYN BARRISTER JANUARY, 2014
T H E S T A T E O F E S T A T E S§3101[a] matters material and necessary in theprosecution or defense of an action are subjectto full disclosure, and that the breadth of dis-coverable material is interpreted liberally to re-quire disclosure, upon request, of any factsbearing on the controversy which will assistpreparation for trial by sharpening the issuesand reducing delay and prolixity. The Courtopined that the test is one of usefulness and rea-son. The Court pointed out that a discovery pro-ceeding commenced under SCPA §2103, issimilarly broad and has been defined as a statu-torily endorsed fishing expedition whereby a fi-duciary may probe for knowledge or informa-tion based upon nothing more than informationand belief. The Court added that in such pro-ceedings a petitioner is not even required to setforth allegations sufficient to sustain a cause ofaction, but only those that justify an inquiry,and that the burden is on the objecting party todemonstrate that the materials being sought arenot relevant to any proper inquiry. The Courtacknowledged that notwithstanding the broadscope of discovery proceedings, a person’s per-sonal banking records customarily are not sub-ject to disclosure. The Court pointed out, how-ever, that such limitation is not absolute andmay be overcome by demonstrating the exis-tence of the appropriate necessity and that therecords cannot be obtained from anothersource. The Court stated that such a showing ofnecessity includes a circumstance where a fidu-ciary is accused of self-dealing. Based upon pe-titioner’s uncontradicted proffer of strong evi-dence that the respondent had violated her fidu-ciary duty to the decedent by self-dealing, theCourt found petitioner had satisfied the stan-dard necessary to entitle the disclosure of re-spondent’s personal banking records. More-over, as they were the personal records of therespondent, the Court was persuaded that therecords could not be obtained from any othersource. Accordingly, the bank was directed tocomply with the subpoena duces tecum within30 days of service of a copy of the Court’sOrder. Matter of Koch, N.Y.L.J. 10/4/13, p.21,c. 3 (Surr. Ct., Queens Co., Surr. Kelly)
Fiduciary Prohibited From AppearingPro Se- The administrator of the estate broughta proceeding to remove the restrictions in herletters of administration to permit the sale ofthe only asset of the estate, the decedent’s realproperty. The restrictions prohibit her from sell-ing or transferring the property without priorCourt Order. Nonetheless, the administrator en-tered into a contract to sell the property astrustee of a family living trust, even though thetrust did not have title to the property. The ad-ministrator subsequently executed an amend-ment to the contract to substitute herself as theadministrator as the transferor of the property,and sought the authority to transfer the proper-ty and collect the proceeds, without bond. Theadministrator was represented by an attorney inthe preparation and execution of the contract ofsale, but filed the petition for modification ofher letters of administration pro se. HOLD-ING- The Court held the proceeding inabeyance and directed the fiduciary to appearby attorney. The Court opined that New Yorklaw prohibits the practice of law on behalf ofanyone other than himself or herself by a per-son who is not an admitted member of the Bar.In the Court’s view, such prohibition extends tofiduciaries attempting to appear pro se. TheCourt stated that the personal representativemerely is a nominal party to the litigation whilethe real parties in interest are the estate’s bene-ficiaries. The Court found that the administra-tor’s attempt to represent herself at the closingof the sale of the estate’s sole asset would notbe in the estate’s best interests. Accordingly, thepetition was held in abeyance for a short periodof time for counsel to appear on behalf of theadministrator. The Court directed, however,that should counsel not appear by the date set,the petition was denied. Matter of Massy,N.Y.L.J. 10/25/13 p. 21, c. 2 (Surr. Ct., KingsCo., Surr. Johnson)
Leave Granted To File Late Objections toProbate- Proponent, a beneficiary and thenamed executor in the will of his late mother,submitted a decree admitting the will to probatewith notice of settlement on October 7, 2013.Same was submitted by his counsel on notice tothe attorneys for respondent and potential ob-jectant, petitioner’s brother. On October 1,2013, the attorneys for the respondent brother
filed objections to probate of the will, samehaving been served on September 27, 2013.With those objections, an affirmation by coun-sel, likewise dated September 27, 2013, wasserved and filed in support of the acceptance ofthe objections by way of an explanation that theproposed decree was premature [the objectionsnot yet being due] or, in the alternative, in thenature of proffering an excuse for their late fil-ing. In a letter to the court dated October 2,2013 and filed on October 3, 2013, counsel forpetitioner asked that the objections be discount-ed and rejected and the decree signed. TheCourt considered his attorney’s affirmation anapplication by the respondent son for a deter-mination that the objections timely were filed,or alternatively, to excuse their late filing andthe proponent’s attorney’s letter oppositionthereto. The SCPA §1404 examinations hadbeen completed on September 11, 2013. The at-torney for the respondent brother averred that atthe conclusion of the examinations he had adiscussion with his adversary regarding the duedate of the objections and that it was his under-standing that the deadline would be ten (10)days from the receipt of the transcripts. Therewas no written stipulation reflecting such un-derstanding and indeed no writing at all regard-ing same. When the attorney for the respondentson received the proposed decree the transcriptshad not been received. The attorney for therespondent son immediately served and filedobjections. Proponent’s attorney, stated in hisletter that neither he nor his associate counselrecalled any discussion along the lines affirmedto by the attorney for the respondent brother.HOLDING- The Court permitted “late” filingof the objections. The Court opined that SCPA§1410, requires that objections to probate befiled 10 days after completion of examinationsunder SCPA §1404 unless there is a stipulationotherwise between the parties or the court fixesa different date. The Court noted that the SCPA§1404 examinations had been completed onSeptember 11, 2013 and according to thestatute the objections were required to be filedon or before September 23, 2013, September 21having been a Saturday. The Court suggestedthat it would have been preferable for there tohave been some type of written confirmation ofthe understanding between counsel. The Courtstated that since there was no writing, the Courtcould not discern whether there was or was notan accord as to the extension. Nonetheless, theCourt pointed to CPLR §3012 (d), which em-powers the Court with the discretion to extendthe time to appear or plead to relieve a pleadingor appearance default upon a showing of rea-sonable excuse for same. The Court added thatexcept where otherwise expressly proscribedby law, CPLR §2004 vests a court with the dis-cretion to extend the time fixed by any statute,rule or order for doing any act, upon such termsas may be just and upon good cause shown,even when an application to extend the time ismade after the expiration of time to file. TheCourt noted that in recognition of the Surro-gate’s overriding concern that only valid willsbe admitted to probate, the tendency is for theCourts to liberally exercise their discretion topermit the filing of late Objections weighingwhether the default was deliberate or not, thereason for and the extent of the delay, merit ofthe objections and the resulting prejudice, ifany, from permitting the late filing. Consider-ing all of the foregoing, the Court permitted thelate filing of the objections. Matter ofPisacano, N.Y.L.J. 12/13/13, p. 21, c. 2 (Surr.Ct., Nassau Co., Surr. McCarty)
Acts Sufficient To Constitute Open andNotorious Acknowledgement of Paternity toAllow a Non-Marital Child to Inherit- Thedecedent died intestate survived by 10 siblings,including the appellant. The decedent also wassurvived by three claimed nonmarital children.Two of the children filed an amended petitionfor letters of administration. Affidavits there-after were submitted from one of the decedent’ssisters and a family friend, who stated that thedecedent openly acknowledged one of the chil-dren as his daughter, and an additional affidavitwas submitted from a nephew that the decedentopenly acknowledged all three of the childrenas his children. Three of the decedent’s sib-lings, and the non petitioning alleged nonmari-tal son, filed objections to the amended peti-tions, claiming that the petitioners were not thedecedent’s children. The a brother of the dece-dent, filed an objection claiming that the dece-
dent died without issue. The Surrogate dis-missed the objections filed by the siblings andthe non petitioning child, determined that allthree children were the distributees of the dece-dent’s estate, and appointed the two petitioningchildren as co administrators of the decedent’sestate. One of the siblings appealed. HOLD-ING- The Surrogate was affirmed. The Appel-late Division stated that as correctly noted bythe Surrogate, the appellant, in his capacity as asibling of the decedent, had no standing to raiseobjections unless he could be considered a dis-tributee of the decedent’s estate. The AppellateDivision noted that siblings, who are defined asissue of the decedent’s parents, are only distrib-utees if the decedent dies without issue. TheAppellate Division pointed out that if the dece-dent was survived by any issue, the appellant,as a sibling of the decedent, did not have stand-ing as a person interested in the estate. The Ap-pellate Division stated that under EPTL §4-1.2a nonmarital child may inherit from his or herfather and paternal kindred, if paternity was es-tablished during the decedent’s lifetime or pa-ternity has been established by clear and con-vincing evidence, which may include, but is notlimited to: (i) evidence derived from a geneticmarker test, or (ii) evidence that the fatheropenly and notoriously acknowledged the childas his own. In the view of the Appellate Divi-sion, the affidavits in the case demonstratedthat the decedent had at least one nonmaritalchild whom he openly and notoriously ac-knowledged as his own. The Court added thatto establish an open and notorious acknowledg-ment of paternity, there is no requirement thatthe putative father disclose paternity to all hisfriends and relatives, and that an acknowledg-ment of paternity in the community in whichthe child lives is sufficient. The Appellate Divi-sion stated that assuming the truth of the appel-lant’s factual allegations, his claims merely es-tablished that the decedent chose not to tell himabout the decedent’s nonmarital children,which was insufficient to affect their status asdistributees. Accordingly, the Appellate Divi-sion ruled that the appellant sibling had nostanding to object to the amended petitions as aperson interested in the decedent’s estate, andthat the Surrogate’s Court, therefore, correctlyhad dismissed his objections. Matter of Reape,110 A.D.3d 1082 (2nd Dept., 2013)
New York Surrogate’s Court Lacks Juris-diction to Compel a Non Resident Fiduciaryof a Florida Trust to Account in New York atthe Behest of a New York Resident Benefi-ciary- In a proceeding seeking to compel an ac-counting, the respondent moved for an orderdismissing the petition.
Decedent died a resident of the State of NewHampshire survived by the parties who werehis daughters. The petitioner Joy lived in NewYork and the respondent, Amy lived in NewHampshire. The decedent had created a trust inthe State of Florida which upon his death was tobe distributed equally to the parties. Amy wasthe sole trustee after the decedent’s death. Amyaverred that she was winding-up the trust. Peti-tioner alleged that the location of trust assets inNew York provided the jurisdictional predicatefor the proceeding. Petitioner submitted a bro-kerage statement for the trust at inception andanother brokerage statement from at or aboutthe date of death of the decedent, both of whichreferenced a Florida financial advisor, andshowed promissory notes, CDs and bonds frombanking institutions and investment brokeragehouses (Lehman Brothers, Goldman Sachs,Bank Leumi, Morgan Stanley, Citigroup)which had their corporate or world headquar-ters in New York. Petitioner’s attorneys’ al-leged that fact as establishing jurisdiction inNew York State.
HOLDING- The Court dismissed the peti-tion. The Court stated that SCPA §207 containsa trilogy of circumstances under which a NewYork Surrogate can exercise jurisdiction overan inter vivos trust, but that the fact that a ben-eficiary resided in New York State was not oneof them. The Court ruled that securities andcash held in brokerage accounts in Florida con-stituted property in Florida for purposes of ju-risdiction, and consequently granted the motionto dismiss. Matter of Kirschner, N.Y.L.J.11/4/13, p. 17, c. 1 (Surr. Ct., Nassau Co., Surr.McCarty)
Renunciation by the Estate of a PostDeceased Spouse Allowed In Order toAchieve Estate Tax Savings- A miscellaneous
proceeding was commenced by the co-execu-tors of the estate for permission to file a renun-ciation of the decedent’s interest in her pre-de-ceased husband’s estate. The decedent died ap-proximately one month after her husband. Thesaid decedents had two children who were thepetitioners. The husband’s will bequeathed hispersonal effects to his wife outright. The willalso provided for an outright pecuniary maritalbequest to his wife and for a credit shelter trust.The combined value of the estates was justunder $1,500,000.00. In addition, each parentowned a $100,000.00 life insurance policynaming the other as beneficiary. The maritalhome was owned by the wife individually.Since the wife owned the house individually,petitioners desired to limit the assets she inher-ited from her husband’s estate to keep her estatebelow the $1,000,000.00 New York estate taxthreshold. Accordingly, petitioners sought todisclaim the wife’s interest in: (i) one-half of alljointly-owned bank accounts and U.S. SavingsBonds; (ii) the life insurance policy owned bythe husband which named the wife as the bene-ficiary; and (iii) any and all assets that the hus-band owned individually which the wife wouldhave an interest in under the husband’s will. Pe-titioners estimated the total value of the assetssought to be disclaimed on behalf of the wife’sestate at $400,000.00. The goal of the proposedrenunciation was to achieve an estate tax sav-ings by taking interests inherited by the wifeonly one month prior to her death out of her es-tate. HOLDING- Based upon the evidencesubmitted and in the absence of opposition, theCourt found that petitioners had set forth rea-sonable cause for the relief requested, and ac-cordingly granted the petition. Matter ofKrauss, 2013 NY Slip Op 51781 (Surr. Ct.,Nassau Co., Surr. McCarty, 8/9/13) [Authors’note: this proceeding was necessary becausepursuant to EPTL 2-1.11(d)(5) a fiduciary maynot disclaim/renounce without Court approval.]
Guardian Allowed To Establish A SmallSupplemental Needs Trust without Bondwith Funds Arising Out Of an Estate- Peti-tioner, the guardian of the person and propertyof an incapacitated person (IP), sought permis-sion to establish a supplemental needs trust(SNT) to be funded with $15,814.14 to be re-ceived from the estate of the IP’s father. The pe-tition also requested that a trustee’s bond bewaived because of the small sum involved. Theoffice of the Attorney General appeared and in-terposed an objection to the proposed SNT be-cause the petition sought to waive the require-ment of a trustee’s bond. HOLDING- TheCourt granted the application. The Court statedthat it was its general practice to require a bondonly where the corpus of the guardianship es-tate exceeded $30,000.00. The Court stated thatthe proposed SNT, and particularly the bondprovision, was in the form pre-approved by theCourt and distributed to counsel upon request.In the Court’s view, the Attorney General pre-sented no legal argument or facts as to why theCourt’s general practice should not be appliedin the case at bar. Consequently, the objectionwas overruled and the SNT approved. Matterof Silverman, N.Y.L.J. 12/16/13, p. 17, c. 2,(Surr. Ct., Nassau Co. Surr. McCarty)
Compiled by Hon. Bruce M. Balter, Act-ing Surrogate, Kings County Surrogate’sCourt and Justice of the Supreme Court,Kings County, Chair, Brooklyn Bar Associa-tion, Surrogate’s Court Committee, andPaul S. Forster, Esq., Chair, Brooklyn BarAssociation, Decedent’s Estates Section.
The Following Attorneys Were DisbarredBy Order Of The Appellate Division, Sec-ond Judicial Department:
Jasleen K. Anand, admitted as JasleenKaur Anand (October 23, 2013)
The respondent proffered an affidavit ofresignation wherein she acknowledged, interalia, that she could not successfully defendherself on the merits against pending chargesthat she misappropriated funds or other prop-erty belonging to another person, failed tomaintain complete records of all funds of aclient or third person coming into her posses-sion or render appropriate accounts to theclient or third person, disbursed estate funds toherself and/or her law firm without authoriza-tion, failed to maintain required bookkeepingrecords for an estate, failed to keep a client rea-sonably informed of the status of a matter, andengaged in conduct involving dishonesty, de-ceit, fraud or misrepresentation.
! ! !Thomas F. Bello (October 23, 2013)
The respondent proffered an affidavit ofresignation wherein he acknowledged, interalia, that he could not successfully defendhimself on the merits against pending chargesthat he engaged in a pattern of neglecting legalmatters entrusted to him (two counts), engagedin a pattern of failing to maintain adequatecommunication with his clients (two counts),failed to comply with numerous court direc-tives, and failed to timely satisfy the terms of asettlement agreement.
! ! !Ray Alfred Jones, Jr. (November 13, 2013)
On October 25, 2012, the respondent entereda plea of guilty in the Supreme Court, KingsCounty (Walsh, J.) to one count of grand larcenyin the second degree, a class C felony in violationof Penal Law § 155.40. His subsequent motion towithdraw the plea was granted on December 20,2012. On January 29, 2013, the respondent en-tered another plea of guilty to one count of grand
larceny in the second degree, in the same court(Chun, J.) During his allocution, the respondentadmitted that, between April 10, 2007, and April13, 2007, he stole property with an aggregatevalue in excess of $50,000 from the complainant.On March 25, 2013, he was sentenced, inter alia,to a term of imprisonment of 1 1/3 to 4 years. Byvirtue of his felony conviction, the respondentwas automatically disbarred and ceased to be anattorney, pursuant to Judiciary Law § 90(4)(a).Accordingly, the Grievance Committee’s motionto strike the respondent’s name from the roll ofattorneys and counselors-at-law, pursuant to Ju-diciary Law § 90(4)(b), was granted to reflect therespondent’s automatic disbarment on January29, 2013.
! ! !Christopher K. Kuehn (November 13, 2013)
The respondent proffered an affidavit of res-ignation wherein he acknowledged, inter alia,that he could not successfully defend himself onthe merits against allegations that he misappro-priated funds entrusted to him as a fiduciary forhis own use and benefit.
! ! !Matter of Joel A. Grossbarth, admitted asJoel Allann Grossbarth, a suspended attor-
ney (November 20, 2013)Following a disciplinary proceeding, and a
further decision and order of the Court datedNovember 2, 2011, authorizing the GrievanceCommittee to file a supplemental petition ofcharges against the respondent, he entered aplea of guilty, on March 19, 2013, to two countsof grand larceny in the second degree, a class Cfelony in violation of Penal Law § 155.40, andone count of forgery in the second degree, aclass D felony in violation of Penal Law §170.10. By virtue of his felony conviction, therespondent was automatically disbarred andceased to be an attorney, pursuant to JudiciaryLaw § 90(4)(a). Accordingly, the GrievanceCommittee’s motion to strike the respondent’sname from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b),
was granted to reflect the respondent’s automat-ic disbarment as of March 19, 2013, and thepending proceedings were discontinued.
The Following Attorneys Were SuspendedFrom The Practice Of Law By Order OfThe Appellate Division, Second JudicialDepartment:
Robert C. Fontanelli, admitted as RobertCarl Fontanelli
(October 18, 2013)The respondent was immediately suspended
from the practice of law pursuant to 22 NYCRR691.4(l)(1)(i) and (iii) upon a finding that heposed an immediate threat to the public interestas a result of his failure to cooperate with theGrievance Committee, and other uncontrovert-ed evidence of professional misconduct, to wit,misappropriation of clients’ funds, and theCommittee was authorized to institute and pros-ecute a disciplinary proceeding against him.
! ! !Susan Friedman Odery, admitted as Susan
Eileen Friedman (October 22, 2013)
The respondent was immediately suspend-ed from the practice of law pursuant to 22NYCRR 691.4(l)(1)(iii) upon a finding thatshe posed an immediate threat to the public in-terest as a result of uncontroverted evidence ofprofessional misconduct, to wit, misappropria-tion of client funds and fabrication of evi-dence, and the Grievance Committee was au-thorized to institute and prosecute a discipli-nary proceeding against her.
! ! !Glen D. Hirsch (October 23, 2013)
The respondent was immediately suspend-ed from the practice of law pursuant to 22NYCRR 691.4(l)(1)(i) upon a finding that heposed an immediate threat to the public inter-est as a result of his failure to cooperate withthe Grievance Committee in its investigationof bounced check notices, received by thempursuant to 22 NYCRR 1300, and the Com-
mittee was authorized to institute and prose-cute a disciplinary proceeding against him.
! ! !Thomas C. Sledjeski, admitted as Thomas
C. Sledjeski, II (October 23, 2013)
The respondent was immediately suspendedfrom the practice of law pursuant to 22 NYCRR691.4(l) (1) (i), (ii) and (iii) upon a finding thathe posed an immediate threat to the public in-terest as a result of his failure to cooperate withthe Grievance Committee, his substantial ad-missions under oath, and other uncontrovertedevidence of professional misconduct, to wit,conduct involving, inter alia, dishonesty, deceit,fraud or misrepresentation, and the Committeewas authorized to institute and prosecute a dis-ciplinary proceeding against him.
! ! !Robert A. Bertsch, a suspended attorney
(October 30, 2013)Following a disciplinary proceeding, the re-
spondent was found guilty of having engaged inillegal conduct that adversely reflects on hishonesty, trustworthiness or fitness as a lawyer,as a result of his federal conviction for mispri-sion of a felony, to wit, securities fraud. In con-sideration of the financial and other hardshipsthe respondent has endured as a result of hisconviction, and the absence of remorse, he wassuspended from the practice of law for a periodof three years, commencing immediately.
! ! !Michael J. DeFelippo, admitted as Michael
John DeFilipo (November 1, 2013)
The respondent was immediately suspend-ed from the practice of law pursuant to 22NYCRR 691.4(l) (1) (i) upon a finding that heposed an immediate threat to the public inter-est as a result of his failure to cooperate withthe Grievance Committee in its investigationof a complaint of professional misconductagainst him, and the Grievance Committeewas authorized to institute and prosecute a
Roll Call
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This second installment of our column coversa broad spectrum of the types of actions and thevaried results obtained in cases that are broughtor are properly venued in the Kings CountyCourts. This quarter we are presenting every-thing from a trial that led to a million dollar set-tlement, a police misconduct § 1983 Civil RightsViolation cases which were either settled inCourt or with the Early Settlement Unit of theCity of New York. The column also includes amediated settlement and a Defense verdict in amotor vehicle action.
To keep the momentum of this column goingwe do need everyone who practices in KingsCounty to assist us from time to time, by submit-ting your cases for inclusion to us. Big ones, lit-tle ones and everything in between will be great-ly appreciated and reported on. Therefore, if inthe past year you have settled a case or tried oneto verdict in the Courts of this County or if some-time in the future you have a case that concludesand you wish to share its results, please email thecase’s details to [email protected] so itcan be included in an upcoming issue. In themeantime, please allow us to extend our heartfeltthanks of all of you who have already or will inthe future help to provide us with content.
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Chris Arciszweski v. Keyspan Energy Corporation
RESULT: SETTLEMENT DURINGTRIAL - $1,670,000 Index #: 31658/07Judge: Robin GarsonPlaintiff’s Attorney(s): Barton L. Slavin,Esq., of Slavin & Slavin, Esqs., Elbert Nasis,
Esq. and Daniel Dornfeld, Esq. of Dornfeld &Nasis, Esqs. Defendant’s Attorney(s): Daniel Cerritos, Esq.of Cullen & Dykman, Esqs.Insurance Carrier: Indemnification from self-insured Consolidated Edison of NY, Inc.Pretrial Demand: $4,200,000Pretrial Offer: NoneType of Action: Premises — high voltage elec-trical components.
Facts on Liability and Damages: Plaintiff,a 54 year old Consolidated Edison worker, whowas performing work on Keyspan high voltageequipment under agreement between Keyspanand Consolidated Edison fell in a sub-stationyard. While getting up the Plaintiff came intocontact with exposed high voltage equipment, al-leged to be owned by Keyspan. Aprior court de-cision as to ownership, not in the form of anOrder required under CPLR 3212(g), specifyingthat facts shall be deemed established for all pur-poses in the action, required that issues of own-ership of the equipment be tried. Additionally,Plaintiff claimed that Keyspan had represented toPlaintiff, as part of his work, that power wasturned off. As relevant Keyspan documents weremissing, proof of same was not available, andPlaintiff obtained a spoliation ruling resulting ina missing document charge against Keyspan.There were contested issues of signs on the cab-inets, chain of command, accuracy of diagrams,ownership of various components, compliancewith procedures and comparative fault of thePlaintiff, inter alia, for tripping at the site.
The case settled after approximately fourdays of trial following the conclusion of thePlaintiff’s direct case and a defense witness.Consolidated Edison, having the obligationunder contractual indemnification, paid the set-tlement which included waiver of the employer’scompensation lien and continuation of benefits.
Plaintiff’s injuries, which were not presentedto the jury, were a partial amputation of a non-dominant thumb with multiple graft surgeries,nerve damage, back and knee injuries. Plaintiffhad been found fully disabled by Workers’Com-pensation. Had the case not settled, Plaintiffwould have called the treating hand surgeon, or-thopedist, psychiatrist and a vocational rehabili-tation specialist. Defendant’s physicians claimedthat Plaintiff’s nerve, back and knee injuries werenot as severe as claimed and Defendant wouldhave called a neurologist, orthopedist and psy-chiatrist to testify.
This case was submitted by Plaintiff’s coun-sel, Barton L. Slavin, Esq..
RESULT: SETTLEMENT - $275,000 [Pre-suit]Index #: 50381/13 Judge: Bernard J. Graham [on the Infant’sCompromise]Plaintiff’s Attorney(s): Jason Friedman ofSmiley & Smiley, LLP.Insurance Carrier: Travelers InsuranceType of Action: Negligence by waiter in arestaurant
Facts on Liability and Damages: An in-fant was visiting New York City with his parents.While the family was eating at Defendant’srestaurant, a waiter who was carrying over a traythat was overloaded with plates dropped ex-tremely hot soup onto the infant’s legs. Plain-tiff’s allegations of negligence included claimsthat the soup was being served dangerously hotand that the waiter was carrying too many itemson the tray at one time, thereby creating a dan-gerous condition. The infant sustained seconddegree burns to the leg and thigh with scarringdue, in part, to poor healing.
Case settled at Mediation and the Infant’sCompromise Hearing was held in SupremeKings with Judge Graham approving the settle-ment.
This case was submitted by Plaintiff’s coun-sel, Jason Friedman, Esq.
! ! !
Gordon v. City of New York and New YorkPolice Department
RESULT: SETTLEMENT - $27,500 Judge: N/A - Settled with Early SettlementUnit, New York City Comptroller’s OfficePlaintiff’s Attorney(s): Gregory Zenon, Esq.of The Law Office of Gregory ZenonDefendant’s Attorney(s): City of New YorkComptroller’s Office by Lynell Canagata-Jeffrey,Corporation Counsel, City of New York Directorof LitigationInsurance Carrier: Self InsuredPretrial Demand: $60,000Type of Action: False Arrest, Malicious Prose-cution, Police Misconduct and § 1983 CivilRights Violation
Breakdown of Settlement: $27,500 forpain and suffering calculated at $500 per hour offalse detainer and additional pain and suffering.
Facts on Liability and Damages: Plaintiffwas falsely arrested in Kings County, held for 40hours on trespass charges and unlawfully hit onthe head with a police-issued flashlight. At thetime of the arrest Plaintiff was in fact in front ofhis own home and had his identification with himas proof that Plaintiff lived there and was nottrespassing. However, Plaintiff was arrested de-
spite the above and the arresting officer havingactual knowledge of same. Had this case not set-tled it would have been venued in Kings County.
This case was submitted by Plaintiff’s coun-sel, Gregory Zenon, Esq.
! ! !
Idris Gooden v. Leabert Miller
RESULT: DEFENSE VERDICTIndex #: 20027/10Judge: Debra L. SilberPlaintiff’s Attorney(s): Ronald J. Landau, Esq.of Mirman, Markovits & Landau, PCDefendant’s Attorney(s): Joseph M. Glat-stein, Esq. of White Fleischner & Fino, LLPInsurance Carrier(s): GeicoPretrial Demand: $90,000Pretrial Offer: $65,000Type of Action: Automobile Accident
Jury Findings on Liability: BifurcatedTrial, Defense verdict after jury deliberated 15minutes. However, the parties had previously ne-gotiated a high / low agreement with $90,000 asthe high and $15,000 as the low. Accordingly,Plaintiff recovered $15,000 despite the defenseverdict.
Facts on Liability and Damages: On Feb-ruary 14, 2010, the Plaintiff, who was a 24 yearold window dresser was struck at an intersectionin Canarsie, Brooklyn, Plaintiff claimed he sus-tained injuries to his face, knee and shoulder.Plaintiff sued the vehicle’s driver, alleging he op-erated his vehicle negligently.
Plaintiff claimed that the impact occurred inthe crosswalk of East 85th Street, while Defen-dant was attempting to make a left hand turnfrom Flatlands Avenue. Plaintiff also claimed hehad the green light and Defendant should haveyielded the right of way. However, during cross-examination, Plaintiff conceded that he did notcheck for traffic before or while he was crossingthe street.
Defendant contended that just before theaccident, he was stopped at the entrance of theintersection, waiting for an opportune momentto proceed. He claimed that he checked thecrosswalk but did not see the Plaintiff and thatwhile his vehicle was already crossing thecrosswalk, he detected an impact at or near thevehicle’s front left corner. He estimated thatthe impact occurred about one car length be-yond the crosswalk and that the Plaintiff hademerged from behind another vehicle that wasstopped at the crosswalk on the northboundside of East 85th Street. The police officerwho responded to the accident opined that thephysical evidence supported that the impactoccurred at the front left corner of Defen-dant’s vehicle.
Plaintiff claimed that he sustained a facial lac-eration, medial meniscus tear, meniscectomy, ro-tator cuff injury, supraspinatus muscle/tendontear, synovectomy and chondroplasty. However,the trial was bifurcated and so the injuries werenot before the jury.
This case was submitted by Defendant’scounsel, Joseph M. Glatstein, Esq.
! ! !
The Hon. Donald Scott Kurtz is Justice of theSupreme Court of the State of New York, KingsCounty and presides in the City Trial ReadinessPart and/or the Jury Coordinating Part. ShellyWerbel is a member of the Editorial Board of theBrooklyn Barrister and is of counsel to WhiteFleischner & Fino, LLP. If you wish to submit aninteresting verdict or settlement to be consideredfor publication, please contact Shelly Werbel [email protected].
policy issues facing our membership, likethe mandatory pro bono reporting require-ment. There are also several major organi-zational events to come, starting with Leg-islators Night on January 22, 2014 as wellas Judiciary Night on April 2, the Second
Annual Theodore T. Jones, Jr. MemorialGolf Tournament, also in April, Law Day inMay and a group admission to the UnitedStates Supreme Court in May. You will behearing more about these events in 2014.
I wish all our members a happy, healthyand prosperous New Year.
RESPECTFULLY SUBMITTEDContinued from page 3
By Hon. Donald Scott Kurtz, JSC and Shelly Werbel, Esq.
251658240
The following summary of second department decisions in medical malpractice cases decided between September 1, and October 31, 2013was prepared by Brooklyn Bar Association Medical Malpractice Committee Chair John Bonina.
Smith v Pasqua, 972 N.Y.S.2d 98, 2013 NYSlip Op 6356 (2d Dept. 2013).
Defendant moved to dismiss plaintiff’sclaims against individually named physicians,for plaintiff’s failure to join a necessary party.Defendants had seen and treated plaintiff atnonparty Victory Memorial Hospital, andclaimed that Victory Memorial Hospital was anecessary party.i Presumptively, naming Victo-ry as a defendant would have resulted in thecase being stayed due to Victory’s bankruptcy.The Court denied defendants’ motion holdingthat defendant hospital was not a necessaryparty. In so doing, the Court held as follows:
The Supreme Court did not err in concludingthat the nonparty Victory Memorial Hospital(hereinafter the hospital) was not a necessary partyto this action. Contrary to the appellants’ con-tention, even if it were shown that the hospitalwould be vicariously liable for any negligence ofthe individual defendants, or that it had a contrac-tual obligation to indemnify those individual de-fendants for damages recovered from them in thisaction, those factors would not render the hospitala necessary party to this action (see CPLR
1001[a]; National Car Rental Sys. v La ConcordeCompagnie D’Assurance, 283 AD2d 249,250; see also Hecht v City of New York, 60 NY2d57, 62-63; Sandiford v Kahn, 84 AD3d 1209; Fer-riola v DiMarzio, 83 AD3d 657, 658; [*2]Mayer’sCider Mill, Inc. v Preferred Mut. Ins. Co., 63AD3d 1522, 1523-1524; Siskind v Levy, 13 AD2d538, 539). Complete relief may be accorded to theparties in this action without the presence of thehospital, as a plaintiff may proceed against any orall joint-tortfeasors, and a judgment for or againstone tortfeasor does not operate as a merger or barof a claim against other tortfeasors (see Hecht vNew York, 60 NY2d at 62). Accordingly, theSupreme Court properly denied those branches ofthe motion and cross motion which were pursuantto CPLR 3211(a)(10) to dismiss the complaint forfailure to join a necessary party.ii
! ! !Peykarian v. Yin Chu Chien, 109 A.D.3d 806;971 N.Y.S.2d 152 (2d Dept. 2013).No continuous treatment — significant tem-poral gap in treatment.
Defendant moved to dismiss all claims occur-ring prior to December 22, 2006 as time barred.iiiOnce defendant submitted the Summons andComplaint filed June 22, 2009, the burden shifted
to the plaintiff to raise a triable issue of fact onwhether the statute of limitations was tolled.iv
The Court granted defendant’s motion hold-ing as follows:
Although the plaintiffs contend that thestatute of limitations was tolled by the continu-ous treatment doctrine, they failed to raise a tri-able issue of fact in that regard (see Massie vCrawford, 78 NY2d 516, 519 [1991]). Theplaintiffs’ decedent received treatment from thedefendant over a 17-year period for recurrentbladder tumors. After his initial diagnosis, in1991, the decedent typically returned for treat-ment only when he was symptomatic, experi-encing hematuria. Thus, between December1999 and April 2003, and again, from Decem-ber 2004 until October 2007, the decedent didnot visit with the defendant. As a result of thesetemporal gaps, because the decedent did notcontinue to seek a course of treatment, any con-tinuity in treatment that had existed was severed(see Nykorchuck v Henriques, 78 NY2d 255,258 [1991]; cf. Gomez v Katz, 61 AD3d 108,112, 117 [2009]).v
Plaintiff claimed defendants were medicallynegligent in the treatment of the infant plain-tiff’s herpes infection. In a prior decision andorder, the Court properly directed the plaintiffsto disclose the identity of the mohel who per-formed the infant’s circumcision, as the identityof the mohel was material and necessary to thedefense of the action.vi
Thereafter, plaintiff continued to refuse to dis-close the mohel’s identity, with the infant’s parentsinvoking their privilege against self-incriminationpursuant to the Fifth Amendment.vii
The Second Department affirmed dismissalof the complaint, as there was a clear showingthat the plaintiffs’ failure to comply with the de-mand for the mohel’s identity without a reason-able excuse was willful and contumacious.viii
! ! !Thomas v. Hermoso, 2013 NY Slip Op 06852(2d Dept. 2013).
Shortly after her preterm delivery at defen-dant St. Mary’s Hospital, the infant plaintiff suf-fered a seizure. At the time of her birth and ad-mission, Dr. Luz Seastres-Ahmed was the at-tending neonatologist on call. Plaintiff sued St.Mary’s and Dr. Seastres-Ahmed’s estate claim-ing that the seizure was caused by low elec-trolyte levels, and the failure to order testingwas a departure from good and accepted med-ical practices.ix
Dr. Seastres-Ahmed’s estate moved for sum-mary judgment after depositions were completed,claiming that she provided no care or treatment toplaintiff during the admission, and thus no physi-cian-patient relationship and no duty existed.x
Defendant’s motion for summary judgmentwas denied, with the Court holding that an im-plied physician-patient relationship can arisewhen a physician gives advice to a patient, evenif the advice is communicated through anotherhealth care professional.xi Whether such a prof-fer of advice constitutes a sufficient basis to con-clude that an implied physician-patient relation-ship exists is a question of fact for the jury.xii Inso ruling, the Court held as follows:
. . . the infant plaintiff’s hospital chart, . . .contains notations indicating that Seastres-Ahmed was contacted twice regarding theplaintiff’s care. The defendant administrator’sown submissions raised triable issues of fact asto whether an implied physician-patient rela-tionship arose because Seastres-Ahmed mayhave communicated advice regarding the plain-tiff’s care to another physician (see Rogers vMaloney, 77 AD3d at 1428-1429; Santos v Ros-ing, 60 AD3d 500; Campbell v Haber, 274AD2d at 947; Cogswell v Chapman, 249 AD2dat 867). The defendant administrator’s submis-sions also failed to eliminate all triable issues offact as to what action, if any, a neonatologist oncall was required to take when contacted re-garding an infant in the neonatal intensive care
unit, pursuant to the rules and customs of St.Mary’s Hospital (see Clarke v Union Hosp. ofBronx, 6 AD3d 229; Gier v CGF Health Sys.,307 AD2d 729; Dillon v Silver, 134 AD2d 159,162; cf. Cintron v New York Med. Coll. Flower& Fifth Ave Hosps., 193 AD2d 551).xiii
CPLR 4401 dismissal affirmed — plaintiff’sexpert’s testimony speculative on causation.
Plaintiff’s expert testified that defendantsdeparted from good and accepted medical prac-tices in failing to refer decedent to a vascularsurgeon or to the hospital following her lastdialysis treatment so that her dialysis graft couldbe evaluated.xv However, plaintiff did not offerany expert testimony as to what if anythingwould have been done for the decedent, if shehad been so referred.xvi
Under the circumstances, plaintiff’s proof oncausation was speculative at best, and the Courtappropriately dismissed the claim at the close ofplaintiff’s case.xvii
! ! !Katz v. St. Francis Hosp., 2013 NY Slip Op06547 (2d Dept. 2013).
CPLR 4404 — jury verdict for plaintiffproperly set aside.
Plaintiff sued Dr. Andrew Berke, an inter-ventional cardiologist and Dr. Michael Gold-stein, a gastroenterologist, amongst other defen-dants. Plaintiffs claim that while under defen-dants’ treatment, decedent developed intestinalischemia, causing his condition to deteriorateand ultimately resulting in his death.xviii
With respect to Dr. Goldstein, the jury re-turned a defendant’s verdict, finding that he didnot depart from good and accepted medical prac-tices in failing to include intestinal ischemia in hisdifferential diagnosis from July 5 through July 7,2000. This portion of the jury verdict and judg-ment was affirmed as there was evidence sup-porting this aspect of the jury verdict.xix
However, the verdict in favor of plaintiff, tothe effect that defendant Berke departed fromgood and accepted medical practices in failingto properly coordinate decedent’s medical carewas set aside, as the evidence on causation wasspeculative. Although plaintiffs claimed thatthe failure to diagnose intestinal ischemiacaused decedent’s condition to deteriorate, theautopsy indicated that there was no rupture ornecrosis of the bowel, and that infection did notspread from the bowel throughout the ab-domen.xx Rather, the autopsy indicated thatdecedent died from necrosis of multiple organsincluding her liver and kidneys, as well as sep-sis and chronic respiratory insufficiency.xxi
! ! !Nunez v. New York City Health & Hosps.Corp. (Elmhurst Hosp. Ctr.), 2013 NY Slip Op06350 [972 N.Y.S.2d 618] (2d Dept. 2013).
CPLR 4404: plaintiff’s verdict set asideand new trial ordered for a number of rea-sons, including the cumulative effect of theCourt’s improper conduct.
In this birth injury case, a plaintiff’s verdictwas set aside and a new trial ordered based upon avariety of errors including improper preclusion ofdefendant’s examining physician, the cumulativeeffect of the improper conduct of the trial judge,and an improper “Noseworthy” charge.xxii
With respect to the preclusion of defendant’sexamining physician, defendant had called a pedi-atric neurologist, Dr. Walter Molofsky who hadnot examined the infant plaintiff and based hisopinions upon the review of the medicalrecords.xxiii Dr. Molofsky testified extensively onthe issue of causation. On cross-examination,plaintiff’s counsel pointed out that Molofsky hadnot examined the infant, and raised the fact that an-
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Medical Malpractice UpdateJANUARY, 2014 BROOKLYN BARRISTER, Page 11
Roll Call (cont’d)pressive evidence of the respondent’s goodmoral character and his generous charitable do-nations, as well as his prior disciplinary history,the respondent was publicly censured.
! ! !James W. Miskowski, admitted as JamesWilliam Miskowski (October 23, 2013)By corrected order of the Supreme Court of
New Jersey dated March 8, 2011, the respon-dent was publicly reprimanded in that statebased on his violation of rule 1.15(a) of the NewJersey Rules of Professional Conduct (here-inafter the RPC) for failing to safeguard clientfunds, as well as rule 1.15(d) of the RPC andrule 1:21-6 of the New Jersey Court Rules forrecord-keeping violations. Upon the GrievanceCommittee’s application for reciprocal disci-pline pursuant to 22 NYCRR 691.3, the respon-dent was publicly censured in New York.
! ! !Roger A. Nehrer (December 4, 2013)
Following a disciplinary proceeding, the re-spondent was found guilty of engaging in con-duct prejudicial to the administration of justice,which reflects adversely on his fitness as alawyer, as a result of his failure to file biennialregistration statements with the Office of CourtAdministration, and pay the designated fees, forthe seven consecutive registration periods be-ginning with 1999-2000, and failing to cooper-ate with the Grievance Committee in its investi-gation of the same. He was publicly censured.
The Following Suspended, Disbarred or Vol-untarily Resigned Attorneys Were Reinstat-ed as Attorneys And Counselors-At-Law ByOrder Of The Appellate Division, Second Ju-dicial Department:
Francis B. Mann, Jr., a suspended attorney(November 13, 2013)
! ! !Michael John Wynne, a suspended attorney
(November 13, 2013)! ! !
Sansan Symone Fung, a voluntary resignor(November 27, 2013)
supplemental disciplinary proceeding. (By priordecision and order of the Court dated December31, 2012, the Grievance Committee was au-thorized to institute and prosecute a disciplinaryproceeding against the respondent based upon apetition of charges dated June 1, 2012.)
! ! !Joseph G. Scali, admitted as
Joseph Girard Scali (November 25, 2013)The respondent was immediately suspended
from the practice of law pursuant to 22 NYCRR691.4(l) (1) (i) upon a finding that he posed animmediate threat to the public interest as a resultof his failure to cooperate with the GrievanceCommittee, and the Committee was authorizedto institute and prosecute a supplemental disci-plinary proceeding against him. (By prior deci-sion and order of the Court dated November 2,2011, the Grievance Committee was authorizedto institute and prosecute a disciplinary pro-ceeding against the respondent, based upon apetition of charges dated July 22, 2011.)
! ! !Paul D. Sirignano, admitted as Paul Davis
Sirignano (November 25, 2013)On September 27, 2012, the respondent en-
tered a plea of guilty before the Honorable Dou-glas M. Kraus, Judge of the New Castle TownCourt, Westchester County, to attempted criminaltax fraud in the fourth degree, a class A misde-meanor, in violation of Tax Law § 1803 andPenal Law § 110. On May 9, 2013, a judgmentand order of restitution was entered against therespondent in the amount of $44,019. He was im-mediately suspended from the practice of lawpursuant to Judiciary Law § 90(4)(f) as a result ofhis conviction of a “serious crime,” and theGrievance Committee was authorized to instituteand prosecute a disciplinary proceeding againsthim, based upon the foregoing conviction.
The Following Attorneys Were PubliclyCensured By Order Of The Appellate Di-vision, Second Judicial Department:
Henry Lung (October 23, 2013)Following a disciplinary proceeding, the re-
spondent was found guilty of compensating anon-lawyer for recommending a client, and re-warding a non-lawyer for having made such arecommendation, resulting in employment ofthe respondent by a client, and sharing a legalfee with a non-lawyer. In consideration of im-
Continued from page 9
By:John Bonina, Esq.
Page 12, BROOKLYN BARRISTER JANUARY, 2014
other pediatric neurologist, Dr. Maytal had exam-ined the infant but had not been called to testify.Defendant then sought permission to call Dr.Maytal for the limited purpose of testifying as tohis clinical findings on exam. The Court denieddefendant’s request, on the grounds that Maytal’stestimony would be cumulative.xxiv The SecondDepartment held that this was error. Although adecision as to whether evidence is cumulativerests within the sound discretion of the trial judge,preclusion here was improper. In so ruling, theCourt held as follows:
Thus, although there was potential for overlapbetween the testimony of Maytal and Molofsky,the trial court should have allowed Maytal’s testi-mony, limiting the subject matter of his testimonyto his clinical findings upon physical examination,as requested by the defendant, rather than pre-cluding Maytal’s testimony altogether (see id. at557; Rojas v Greyhound Lines, 254 AD2d188; Jellema v 66 West 84th Street OwnersCorp., 248 AD2d 117). The court’s ruling result-ed in significant prejudice to the defendant, sinceit prevented the defendant from addressing the ar-gument made by the plaintiff’s counsel duringsummation that Maytal was not called to testifybecause his findings would not have been favor-able to the defense.xxv
Further, the Second Department held that de-fendant was deprived of a fair trial due to theCourt’s excessive intrusion into the examinationof witnesses, and by the nature and extent of theCourt’s questioning and comments. Although theTrial Court has broad authority to control thecourtroom, elicit and clarify testimony, expeditethe proceedings and admonish counsel and wit-nesses when necessary, judges must be careful todo so in an evenhanded and temperate manner.The record here showed that on repeated occa-sions the Court did not do so in an evenhandedand temperate manner, and conveyed an impres-sion of incredulity with respect to the defense wit-nesses’opinions.xxvi
Lastly, the Second Department held that it waserror to give a supplemental jury instruction pur-suant to Noseworthy v. City of New York, (298 NY76), as Noseworthy had no application to the factsof this case because the infant’s inability to testifyabout the events surrounding his birth was not theresult of memory loss stemming from the defen-dant’s negligence, but rather due to hisinfancy.xxvii
! ! !Porcelli v. Northern Westchester Hosp. Ctr.,2013 NY Slip Op 06354 (2d Dept. 2013).
Defendant’s verdict reversed and new trialordered due to the cumulative effect of im-proper conduct of the trial judge.
At the infant plaintiff’s delivery, thin meconi-um was noted. The infant’s mouth and nose weresuctioned. Defendant Melissa Tsai used a laryn-goscope to suction any meconium from the in-fant’s stomach, and inserted an endotracheal tubethrough the infant’s mouth into the airway tocheck for the presence of meconium below thevocal cords.xxviii Thereafter, the infant devel-oped severe respiratory problems and underwentseveral surgical procedures, which plaintiffclaimed was due to a pharyngeal tear caused bydefendant.xxix
Averdict in favor of defense was set aside, anda new trial ordered, based upon the cumulative ef-fect of the improper conduct of the trial judge.xxxThe Court explained its holding, and the trialjudge’s conduct, as follows:
. . . the trial justice’s excessive intervention inthe proceedings, as well as the cumulative effectof the trial court’s improper conduct, deprived theplaintiff of her right to a fair trial (see CPLR5501[a][1]; 4017; Rivera v W. & R. Serv. Sta., 34AD2d 115; see generally People v Charleston, 56NY2d 886, 888; People v Yut Wai Tom, 53 NY2d44). Accordingly, we grant a new trial againstTsai.xxxi
“[A]ll litigants, regardless of the merits of theircase, are entitled to a fair trial” (Habenicht v R. K.O. Theatres, 23 AD2d 378, 379 [internal quota-tion marks omitted]; see DeCrescenzo v Gonza-lez, 46 AD3d 607, 608). A trial justice plays a“vital role in clarifying confusing testimony andfacilitating the orderly and expeditious progress ofthe trial,” but that “power is one that should be ex-ercised sparingly” (People v Yut Wai Tom, 53NY2d at 57). Accordingly, a trial justice may not
“ so far inject himself [or herself] into the pro-ceedings that the jury could not review the case inthe calm and untrammelled spirit necessary to ef-fect justice’” (Schaffer v Kurpis, 177 AD2d 379,380, quoting Kamen Soap Prods. Co. v Prusansky& Prusansky, 11 AD2d 676, 676).xxxii
Atrial justice must maintain an atmosphere ofimpartiality. Here, while the plaintiff’s counselmay have been overly aggressive, and at timeseven antagonized the trial justice, nonetheless, atrial justice should “ at all times maintain an im-partial attitude and exercise a high degree of pa-tience and forebearance’” (Salzano v City of NewYork, 22 AD2d 656, 657, quoting Buckley v 2570Broadway Corp., 12 AD2d 473, 473). Indeed, ourreview of the record convinces us that the repeat-ed conflict between the court and the plaintiff’scounsel, at all phases of the trial—and often timesin the presence of the jury—unnecessarily inject-ed personality issues into the case, which militat-ed against a fair trial. The trial justice demonstrat-ed a propensity to interrupt, patronize, and ad-monish the plaintiff’s counsel, and gave the plain-tiff’s counsel significantly less leeway with regardto examination and cross-examination of witness-es than that which was afforded the defendants’counsel. By way of example, at one point, the trialjustice, after precluding the plaintiff’s counselfrom cross-examining a witness, advised theplaintiff’s counsel, in front of the jury, that she wasaware of the rules of evidence regarding when anattorney and client can speak during a break, andwould explain them to the plaintiff’s counsel“later.” Another time, again in front of the jury,following a somewhat heated discussion betweenthe trial justice and the plaintiff’s counsel, the trialjustice advised the plaintiff’s counsel to “go re-view the books tonight.” At one sidebar confer-ence, the trial justice went so far as to advise theplaintiff’s counsel, upon indicating that he was in-terrupting her, that she would not “allow the re-porter to take any words from you at this point be-cause I don’t think that you are going to do anyservice to yourself, the type of emotional tantrumsthat you have been having.” Later in the trial, infront of the jury, the trial justice [*4]inappropri-ately admonished the plaintiff’s counsel to “tonedown the histrionics,” and advised him that shewas “bewildered” as to counsel’s questioning, as-serting that she found it to be “not that important,”in effect, irrelevant, and that a question posed bycounsel was “not very good.” During one con-tentious exchange in front of the jury, the trial jus-tice stated that the plaintiff’s counsel had put on adisplay that was “clearly, clearly fodder for a con-tempt citation.” In addition to the foregoing, nu-merous injudicious remarks were made by thetrial justice, both sua sponte and in response tocomments made by the plaintiff’s counsel. At onepoint, the trial justice stated to the plaintiff’s coun-sel, in front of the jury, that if counsel were per-mitted to examine the defendant’s expert witnessbefore trial, he would be “like a leech on a horse.”The trial justice further stated that she was “aston-ished at the many things” that counsel said duringthe course of the trial. We note that the foregoingis not an exhaustive recitation of the incidents thatgive us cause for concern.xxxiii
Under the circumstances of this case, by virtueof the cumulative effect of the improper conductof the trial justice, the plaintiff was deprived of afair trial. As a result, the jury could not have con-sidered the issues at trial in a fair, calm, and un-prejudiced manner (see DeCrescenzo v Gonzalez,46 AD3d 607; Sutton v Kassapides, 73 AD3d1021, 1021; Gentile v Terrace Hgts. Hosp., 57AD2d 585; Dicker v Waldbaum’s Inc., 56 AD2d621; Ougourlian v New York City Health &Hosps. Corp., 5 AD3d 644). Accordingly, a newtrial against Tsai, before a different Justice, is war-ranted.xxxiv
i Smith v. Pasqua, 972 N.Y.S.2d 98, 99 (2dDept. 2013)
ii Id., at 99-100. iii Peykarian v. Yin Chu Chien, 109 A.D.3d
806; 971 N.Y.S.2d 152 (2d. Dept. 2013)iv Id., at 807. v Id.vi Silberstein v. Maimonides Med. Ctr., 109
A.D. 3d 812, 813 (2d Dept. 2013)vii Id.viii Id., at 814. ix Thomas v. Hermoso, 2013 NY Slip Op
