THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE FEBRUARY 2016 | VOL. 3 | NO. 2 LAWYER WESTCHES T ER WCBA W E S TC H E S T E R C O U N T Y B A R A S S O C I A T I O N Save the Date: Annual Meeng 2016 ... p. 1 | Annual Banquet 2016 ... p. 3 | Brown Bag Lunch Series ... p. 23 Call to Acon: Annual Secon & Commiee Reports are due ... p. ii | Mock Trial Needs Volunteers ... p. 17 Call for Nominaons: New Lawyers Leadership Awards ... p. 21 CLE Center ... p. 24 ... and much more Factors to Consider When Transferring a Residence for Elder Law and Estate Planning Purposes: A Primer ...p. 10 Splitting the Baby in Two: Legislating Shared Custody ...p. 14 2016 1896 THE WCBA IS CELEBRATING 1896–2016 120 YEARS OF SERVICE TO THE LEGAL PROFESSION ...p. 6 WCBA
Transcript
THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE FEBRUARY 2016 | VOL. 3 | NO. 2
LAWYERwestchester
WCBA
WES
TCHESTER COUNT
Y
BAR A SS O CIATION
Save the Date: Annual Meeting 2016 ... p. 1 | Annual Banquet 2016 ... p. 3 | Brown Bag Lunch Series ... p. 23 Call to Action: Annual Section & Committee Reports are due ... p. ii | Mock Trial Needs Volunteers ... p. 17 Call for Nominations: New Lawyers Leadership Awards ... p. 21CLE Center ... p. 24 ... and much more
Factors to Consider When Transferring a Residence for Elder Law and Estate Planning Purposes: A Primer ...p. 10
Splitting the Baby in Two: Legislating Shared Custody ...p. 14
20161896
THE WCBA IS CELEBRATING 1896–2016
120 YEARSOF SERVICE TO THE LEGAL PROFESSION ...p. 6
WCBA
ii I FEBRUARY 2016 I WESTCHESTER LAWYER
TO SERVE AS OFFICERS President Kelly M. Welch President-Elect Stephanie L. BurnsVice President Hon. Linda S. JamiesonVice President Richard VecchioTreasurer Wendy M. WeathersAsst. Treasurer Hon. Michael J. McDermottSecretary Diana Bunin-KolevAsst. Secretary James HyerRepresentative Denise WardDirector
TO SERVE AS DIRECTORSHon. John B. Colangelo Mary Beth MorrisseyTejash V. Sanchala Steven R. Schoenfeld Sherry Levin Wallach
TO SERVE ON THE 2016 NOMINATING COMMITTEE Julie Cvek Curley Jody FayP. Daniel Hollis IIIAtheeb KhateebDawn KirbyNancy Rudolph Steven Waldinger
The following slate of officers and directors will be voted on by the membership at the Annual Meeting of the Westchester County Bar Association on Wednesday, March 2, 2016.
The Nominating Committee of the WCBA announces the 2016 SLATE OF DIRECTORS AND OFFICERS
WESTCHESTER COUNTY BAR ASSOCIATION
________________________________
PROXYKNOW ALL PERSONS BY THESE PRESENTS, that the un-dersigned, an active member in good standing of THE WESTCHESTER COUNTY BAR ASSOCIATION, hereby ac-knowledges receipt of NOTICE OF ANNUAL MEETING OF THE WESTCHESTER COUNTY BAR ASSOCIATION to be held Wednesday, March 2, 2016, and by these pres-ents does constitute and appoint President and Imme-diate Past President as alternate and each of them, attorneys and agents with power of substitution, as his or her proxy to attend the Annual Meeting of the WESTCHESTER COUNTY BAR ASSOCIATION to be held at seven o’clock in the evening on that date at the ELMWOOD COUNTRY CLUB, WHITE PLAINS, NY, or any adjournment thereof, with full and complete power to vote and act in the undersigned’s name and stead in the manner and with the same power and effect as if the undersigned were personally present at such meeting, hereby revoking any and all other proxies heretofore given by me to any persons whatsoever.
NAME(S): (For a table of 10 please submit names on a separate sheet) PHONE EMAIL____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
METHOD OF PAYMENT: CHECK ENCLOSED $__________ OR CHARGE $ _______ q MASTERCARD q VISA q AMERICAN EXPRESS q DISCOVER CARDCARD NUMBER: __________________________________________________________________________ EXP. DATE: _________ SEC. CODE: ___________CREDIT CARD BILLING ADDRESS: _______________________________________________________________________________ ZIP CODE: ____________NAME ON CARD: ________________________________________________________________________________________________________________
HOW TO SUBMIT THIS APPLICATION AND PAYMENT ONLINE: go to our website Calendar at wcbany.org. EMAIL scanned form to [email protected]. FAX form to: 914-761-9402MAIL form and check made out to: “WCBA” TO: WCBA, One North Broadway, Suite 512 White Plains, NY 10601
q I would like to make ______ reservations. q I would like to reserve a Table of Ten.q I would like to be a sponsor. (For information: [email protected])
Tickets$75 on or before February 24
$90 after February 24
Table of Ten $650 on or before February 24
$750 after February 24
We invite you to join us ... for our cocktail reception and dinner honoring our Past Presidents and conducting our Annual Meeting and Election of Officers and Directors.
Elmwood Country Club 850 Dobbs Ferry Road, White Plains, NY
Section & Committee Co-chairs Annual Reports are due now!Please submit your Annual Reports to [email protected] as soon as possible! Thank you!
Sponsorship opportunities are available. All sponsorships include pre- and post-event publicity in the Westchester Lawyer magazine, in e-news and on the website.Platinum: $5,000: 10 tickets plus full page ad in Magazine; exclusive to your industryDiamond: $4,000: 10 tickets plus full page ad in the Magazine Gold: $2,000: 5 tickets plus half page ad in the Magazine Silver: $1,000: 2 tickets plus quarter page ad in the Magazine Bronze: $ 500: 1 ticket plus business card ad in the Magazine
ANNUALMEETING
2016
& PAST PRESIDENTS DINNER
WESTCHESTER COUNTY BAR ASSOCIATION
WCBA ANNUAL MEETING: IMPORTANT DOCUMENTS List of Nominees, Proxy, Chairpersons Reports Due
2 I FEBRUARY 2016 I WESTCHESTER LAWYER
Published by the Westchester County Bar Association One North Broadway, Suite 512White Plains, NY 10601Tel.: 914.761.3707 | Fax: 914.761.9402Email: [email protected] | www.wcbany.org
OFFICERS AND STAFFP. Daniel Hollis III, Esq. PRESIDENTKelly M. Welch, Esq. PRESIDENT-ELECTStephanie L. Burns, Esq. VICE PRESIDENT Richard Vecchio, Esq. VICE PRESIDENTDiana Bunin Kolev, Esq. SECRETARY Hon. Linda S. Jamieson ASSISTANT SECRETARYJohn R. McCarron Jr., Esq. TREASURERWendy M. Weathers, Esq. ASSISTANT TREASURERRichard M. Gardella, Esq. EDITOR-IN-CHIEFLuis Rivera, Esq. EXECUTIVE DIRECTORMary Ellen McCourt DESIGN & PRODUCTION MANAGER
BOARD OF DIRECTORSDavid B. Bruckman, Esq., MS TaxJames L. Hyer, Esq.Hon. Michael McDermottStephanie Melowsky, Esq.Tejash Sanchala, Esq.Andrew P. Schreiver, Esq.Hon. Robert A. Spolzino, Esq.Chauncey Walker, Esq.Sherry Levin Wallach, Esq.
LAWYERWESTCHESTER
THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE
WES
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BAR A S S O C IATI ON
Submission of material to the WCBA for inclusion in the Westchester LAWYER, Bar Journal, Website or other WCBA publication grants the WCBA limited copyright and full permission to reprint the material in any WCBA publication, on the WCBA website, or with LexisNexis or Westlaw at any time without additional consent. Please note that any opinions expressed in the articles contained herein are solely those of the author(s) and do not constitute positions taken by the WCBA.
In this issue…
p. 26
Features 6 Celebrating 120 years of Service to the Legal Community
By Richard M. Gardella, Esq.
10 Factors to Consider When Transferring a Residence for Elder Law and Estate Planning Purposes: A Primer By Anthony J. Enea, Esq.
14 Splitting the Baby in Two: Legislating Shared Custody By Lydia S. Antoncic, Esq.
Call to Action ii Annual Section & Committee Reports Are Due!
17 Mock Trial 2016: Need Judges, Volunteer Coaches & Sponsors
21 New Lawyers Leadership Awards: Call for Nominations
Save the Dates 1 Annual Meeting, March 2, 2016
3 Annual Banquet, May 5, 2016
23 Brown Bag Lunch Series
Departments 3 From the President
By P. Daniel Hollis III, Esq.
16 Member Spotlight: An Interview with Richard Vecchio, Esq. By Tejash V. Sanchala, Esq.
22 Welcome New & Returning Members
24 CLE Center
26 From the Back Bench By Richard M. Gardella, Esq.
28 Classifieds
28 Advertising Rates
p. 16p. 10 p. 14
Thank you to Diamond Sponsor Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn LLP
WESTCHESTER LAWYER I FEBRUARY 2016 I 3
BY P. DANIEL HOLLIS I I I , ESQ.
The Westchester County Bar As-sociation is most fortunate to have as a Board Member the dynamic Sherry Levin Wallach. In addition to being on our board, Sherry also serves as chair of the New York State Bar Associa-tion’s Criminal Justice Section and is a Ninth Judicial District Vice President of the New York State Bar Association.
Sherry and I were called upon by the Honorable Ralph R. Mackin, the recently retired and longtime town justice in the Town of North Salem to meet and discuss the need for felo-ny qualified attorneys to be added to the 18B Panel, so that they might be present at arraignments, as is now re-quired.
Former Chief Judge Jonathan Lippman’s commitment to providing counsel at arraignment, his propos-als for bail reform, the creation of the Office of Indigent Legal Services focus on quality of representation, the re-
cent settlement in the Hurrell-Har-ring law suit, and the United State Supreme Court’s decision in Pedilla v. Kentucky, 130 S.Ct. 1473 (2010) have led to changes in the criminal justice system throughout the State. Courts now are required to have counsel at the first appearance for all defen-dants and to determine their eligi-bility for assigned counsel and that requirement prompted Judge Mackin to convene the meeting.
In attendance at that meeting were the Honorable Mark Farrell and John Donohue of the Mt. Kisco Justice Court, the Honorable Regina Kelly of the Pound Ridge Justice Court, Claire Degnan, the executive director of the Westchester Legal Aid Society, Sherry, Judge Mackin, and myself.
In that meeting, I learned that, for example, that there are only 22 attorneys on the assigned 18B Panel for the Town of Lewisboro, and that
there are only 8 felony qualified 18B attorneys in all of Northern West-chester.
This small number of qualified at-torneys presents a huge operational and public safety issue for the courts, local law enforcement agencies and the public.
Pound Ridge, Lewisboro and North Salem all have local police de-partments. The night shift for these town police departments is augment-ed by, and in some cases superseded, by New York State police coverage.
When a defendant is arrested for a crime and brought to the Town/Village Court for booking and arraign-ment, the local officer or state troop-er must stay with that individual until the arraignment.
That officer is taken off the road for other, and perhaps more serious, incidents which will go uncovered
FROM THE PRESIDENT
For Every Action … There is … More Than One Reaction …
Thursday, May 5, 2016 | 6:00 pm
WCBA’S 118TH ANNUAL BANQUET & Induction of Officers and Directors
Cocktail Reception 6:00 pmDinner Meeting 7:00 pm
Join us for our annual induction of officers and directors with cocktail reception, dinner, address by featured speaker and souvenir journal.
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(continued on page 4)
Thank you to Diamond Sponsor Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn LLP
4 I FEBRUARY 2016 I WESTCHESTER LAWYER
while, as what happens most often now, the town justice is forced to make phone calls to attorneys on the 18b Panel trying to find one of the few felony qualified attorneys in the north-eastern region of the county to get to the court for that arraignment.
That first appearance is extremely critical to the defendant’s rights be-cause bail decisions are being consid-ered and the effect of criminal charges on a person’s immigration status must be addressed by counsel immediately in every criminal case. In many of the justice courts in our county, case loads have greatly increased as well as the severity of the charges being filed in those jurisdictions.
Since there is no centralized ar-raignment court or holding facility in Westchester County, the problem I set forth above is critical. The responsibili-ty to find available and effective coun-sel should not fall on the already heav-ily burdened court staffs or judges to check to find an attorney at 2:00 a.m.
Sherry and the Criminal Justice Section will be considering existing NYSBA policies and will be issuing a re-port as to what that Section feels are the necessary changes because of this new requirement.
Adding to the 18B Panel would be a way to expand the pool of available of people for the court to call, but I was presented with a far different point of view on this possibility by an attorney, who will remain anonymous, but who has a substantial criminal practice in central and northern Westchester in the justice, village and city courts.
That attorney feels the new pro-tocol for misdemeanor and felony
arraignments is well intentioned, but that it is an unnecessary patchwork remedy creating a limited pool of criminal defense attorneys for arraign-ment off a proverbial “short list” and, ironically, possibly creating a potential disadvantage to the accused.
My colleague felt that using a limit-ed list of attorneys from 18-B assigned counsel is no more distinguishable than using a list compiled by a court of “preferred” local lawyers frequently in their court (a practice, which by and large, is considered improper.) Once an assigned attorney appears with the accused at arraignment, the defen-dant may be reluctant to seek other counsel if the defendant perceives that the court “appointed” or some-how “approved” their presently as-signed counsel from a list maintained by the court.
He further felt that historically, where a court appointed attorney de-termined that a defendant could af-ford counsel, he or she then declined taking that case as assigned counsel - hence, the indigent were immediately assigned representation while persons who could afford counsel were re-quired to seek out private representa-tion. There would also seem to be an inherent conflict in a court appointed attorney, upon determining the de-fendant can afford their own counsel, then offering her or his own legal ser-vices to continue representation for a fee.
My colleague went on to say that attorney selection for criminal de-fendants is commonly the result of a search by the accused, a family mem-ber, friend or loved one based upon
factors important to them (e.g. experi-ence, focused practice areas, geogra-phy, personal referrals, client reviews, costs, etc.) and not just from a compul-sory limited list. Previously, the brief period an accused was detained prior to appearing before a local justice of-ten was time for the whole family fully to become engaged early on (which decisively benefitted the defendant in the long run.)
In conclusion, my colleague sug-gests that in order to lessen the num-ber of such detainments for arraign-ments, police departments could consider issuing more misdemeanor desk appearance tickets where dis-cretion permits. This would ease the burden of local court justices and give the accused and their families’ time to participate in the entire criminal pro-cess from the start with their loved one or friend and assist in locating counsel truly of their own selection and not off a short list of limited coun-sel seemingly imposed upon them by the court.
There is no doubt that we all want criminal defendants to have the best representation available at the earliest stage of the proceedings.
What is not so simple is that the non 18B bar could be severely impact-ed by having only 18B Panel Members called for arraignments for the rea-sons my colleague expressed to me.
The issue needs to be looked at from every angle.
I am sure that Sherry would wel-come input from our members.
As the old saying goes … for every action ….there is a reaction … maybe more than one!
wcbany.orgLike us at Westchester County Bar Association@WCBApresident
Follow the President
PRESIDENT’S MESSAGE(continued from page 3)
WESTCHESTER LAWYER I FEBRUARY 2016 I 5
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Westchester county Bar association
The Westchester County Bar Association is celebrating its 120th Anniversary! We thought it would be educational and fun to reprint in the Magazine over the next several months excerpts from each chapter of the Centennial Historic Journal, published in 1996, that presented the history of the Association in 10 year increments. We begin with the 1896-1906 chapter from the Journal which was researched and written by Richard M. Gardella, WCBA past president and editor-in-chief of this Magazine. We hope you enjoy the look back to see how far we have come!
The Beginning: 1896-1906BY RICHARD M. GARDELLA, ESQ.
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Celebrating 120 years of Service to the Legal Profession
20161896
On March 7, 1896, a group of lawyers met in the Supervisor’s room at the Westchester County Court House on Railroad Avenue (Main Street) in the Village of White Plains. Less than a month before, a certificate to incorporate a new organization, the Westchester County Bar Association, “had been duly filed according to law.” Notice of the February 11 filing was given on February 27 leading to the group’s first meeting.
The original charter members signing the certificate were Ralph E. Prime and Theodore H. Silkman both of Yonkers; E. W. Davenport of New Rochelle; William A. Woodworth, H.J. Dykman and William Robertson, all of White Plains; Isaac N. Mills and Herbert Lent, both of Mount Vernon; David W. Travis of Peekskill; Francis Larkin of Sing Sing and Charles Haines of Bedford Station.
The first meeting was called at 2:00 pm “for the purpose of effecting an organization.” Robertson was named temporary chairman and Davenport, Prime and Mills were named to a com-mittee charged with the preparation
of a constitution and by-laws. Those documents were adopted on May 4, 1896. Two hundred fifty copies were ordered printed. A week later William H. Robertson was elected president.
Robertson, a political figure of some note, served as president of the state bar in 1895 and 1896. He had been appoint-ed Collector of the Port of New York by President Garfield in 1881. Named vice president were Davenport, Prime and Larkin. Woodworth was elected corre-sponding secretary; Haines, recording secretary, and Joseph S. Wood, trea-surer. Committees on admissions, grievances and audits were also ap-pointed. The organization numbered 53 in its first year.
Like the rest of the country in 1896, Westchester was largely a ru-ral community. The United States was not yet a world power. With an army of 28,000 officers and men, it was ignored in a survey of world mil-itary forces published by the German General Staff. The German survey in-cluded Portugal and Montenegro as “powers,” but not the U.S. Army.
In an age that made “progress” its
THEN... The Westchester County Bar Association dates back to March 7, 1896 when a group of eleven lawyers convened in the Supervisor’s room at the Westchester County Courthouse “for the purpose of effecting an orga-nization.” As a not-for-profit group, the Association seeks to elevate the standards of integrity, honor, compe-tence and courtesy within the legal profession. To that end, the Associ-ation strives to cultivate the science of jurisprudence. It is our mission to maintain the availability of the law to all who seek redress and to facilitate the administration of justice. Through the Association’s many programs and committees, the Association serves all members of society by seeking and perfecting the common good.
—Centennial Historic Journal
NOW... One hundred twenty years later, the WCBA now includes 17 sections and 52 committees with a voluntary membership of more than 2,000 attorneys, judges and affiliates.
6 I FEBRUARY 2016 I WESTCHESTER LAWYER
Celebrating 120 years of Service to the Legal Profession
watchword, science fueled technolog-ical advancement at a dizzying pace. The gasoline driven automobile, which was virtually unknown on Westchester roads at the beginning of the WCBA’s first decade, could be seen in numbers by the end of it. Commuter train trav-el was well established in the decade with New York City’s growth helping to transform rural Westchester into a classic suburb. Trolleys crisscrossed the country, ferry service was introduced, and the decade saw man’s first powered airplane flight.
The introduction of the first dial phones spurred further advancement in telephonic communications, while Marconi’s transatlantic signals in 1901 heralded radio’s development. English physicist Joseph John Thomson’s 1897 discovery that all atoms contained par-ticles of electricity opened the door to electric power and man’s dependence on electronics. Technological growth also served to entertain with the first showing of early moving pictures at the Tarrytown Music Hall in 1900.
The above technological progress occurred at a time of unprecedent-ed industrial expansion and growth. That expansion fueled great personal fortunes leading to hugemansions and lavish life styles unhampered by an income tax. Mark Twain dubbed the time the “Gilded Age.” Others called the leaders of this nobility of wealth “Robber Barons” or “Moguls.”
Among the major mansions dot-ting the Westchester landscape were William Rockefeller’s Rockwood Hall in North Tarrytown; John D. Rockefeller’s first Kykuit in Pocantico Hills; Emily Butler’s Fox Meadow Estate in Scarsdale; William E. Ward’s Ward Castle in Port Chester; Whitelaw Reid’s Ophir House in Purchase and, of course, Jay Gould’s Lyndhurst in
Tarrytown. Few feared a depletion of natural resources.
Perhaps, the greater threat to the personal power of these American moguls than the labor strife and the Roosevelt Administration’s new an-titrust laws would prove to be the in-come tax and the development of cor-porate America. The income tax would come later, but the corporate seed was already planted. The formation of the United States Steel Corporation was formally announced on April 1, 1901. The new corporation was capitalized at $1.4 billion.
One of the biggest changes the new group faced in common with other lawyers in the state was the cre-ation of the Appellate Division on January 1, 1896—an outgrowth of the Constitutional Convention of 1894. The first case before the new Appellate Division, Second Department, which included Westchester in its jurisdic-tion, involved a promissory note. The action, Kingsland Land Co. v. Newman, was brought against the endorser of the note. In the beginning, that new court was housed in Brooklyn’s Borough Hall.
For its part the Westchester County Bar Association quickly established its own “new” traditions. Its first annual banquet was held on May 7, 1897, at the Murray Hill Hotel in New York City. The dinner invitation was styled as a court summons and the menu in-cluded boiled white squab on toast.
Theodore H. Silkman had succeed-ed William H. Robertson at the time of the next banquet in 1898. Modern technology led to the replacement of handwritten minutes with the more legible typewritten variety in 1899.
The Associations’ efforts included recommending legislation to exempt mortgages from taxation, the use of in-dices in the registrar’s office and discus-sions with Appellate Division Presiding Justice William W. Goodrich which led to the holding of four equity terms in Westchester during the year.
However, by far the most troubling matter to come before the fledgling Association was a complaint against a lawyer who served as a referee in an ac-tion to foreclose on a mechanic’s lien.
(continued on page 8)
Surrogate’s Court circa 1904
WESTCHESTER LAWYER I FEBRUARY 2016 I 7
The referee filed decisions for both the defendant and the plaintiff, one in December 1899 and the other in January 1900. He collected fees from each side. The wrongdoer appeared before members of the Association and admitted “he had done wrong, but had done all in his power to right the wrong.” The referee paid a total of $1,800 to the litigants to satisfy their claims and costs, he reported. While the lawyer’s story evoked some sympathy, the matter was eventually and rightly referred to the Appellate Division.
In 1902 a Committee was formed to find a permanent headquarters for the Association possibly in connection with its custody of the law library at the courthouse. The Committee report-ed rents of $60 a month for suitable space in the Barrett Building and $50 a month in the Sutherland Building and the State Journal Building, but rejected the idea of securing such rental space. They had received favorable indica-tion from county officials that space could be provided in a newly proposed courthouse.
However, throughout the decade the Association met in the supervisor’s room, the Surrogate’s Court or other rooms at the courthouse. Their hope of an entirely new courthouse was not met until much later, but a major ad-dition was constructed to the existing courthouse in 1907.
The Association backed the con-struction of an entirely new, complete, modern, fireproof courthouse for the County at its 1904 annual meeting. Proposed state law amendments re-lating to Surrogate Court jurisdic-tion were also supported. Later the Association decided to stop the prac-tice of paying for the annual dinner out
of annual dues and a committee was set up to study the possibility of a separate short cause on the commercial court calendar.
One of the Association’s more hu-mane actions during 1904 involved the court practice of requiring jurors to stand when receiving a judge’s charge. The Association adopted the following resolution:
“RESOLVED, that the Judges holding courts in the County of Westchester have their attention called to the important consideration and that this Bar Association would suggest that in order that Jurors may not have their minds distracted and thereby pre-vented from giving the fullest attention to the court while so being charged, that hereafter, the said several courts so being held in this county permit Jurors to remain seated while receiving the Judge’s charge.”
During the first decade, the Association membership grew from 53
to 166 and its budget grew in like pro-portion. Members had to feel in keep-ing with the age, that they were making progress. But there were dark clouds gathering to cast shadows on the era’s confident assumptions of inevitable human betterment.
A shattering earthquake in San Francisco on April 18, 1906, which killed 700 and destroyed 497 blocks of buildings covering five square miles, demonstrated that man’s progress could not control nature’s unpredict-able power. The shooting of Stanford White exposed the Gilded Age’s dark side and Theodore Dreiser correctly saw the moral vacuum behind an ambi-tious man’s desire to live the American Dream.
On a broader scale, violence in Russia and the building of military power in Europe and Japan were pre-cursors to man’s most violent centu-ry—a century which saw war on civil-ians become commonplace.
Celebrating 120 Years(continued from page 7)
Social gatherings occurred around milestones: Throngs gathered for the cornerstone setting of the Supreme Court wing of a former County Courthouse in White Plains
8 I FEBRUARY 2016 I WESTCHESTER LAWYER
WESTCHESTER LAWYER I FEBRUARY 2016 I 9
Enjoy Taking Photos? Want to get published?We welcome photo submissions from our members. Send your high resolution photos to the Westchester Lawyer magazine and we will review for possible inclusion. You might even see your photo on the cover! For more information contact [email protected].
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T ransferring one’s residence raises a number of significant and complex issues and con-
cerns that need to be thoroughly ad-dressed prior to making the transfer. The following is an overview of the types of transfers of a residence that can be made and their consequences.
Outright Transfer of the Residence Without the
Reservation of a Life EstateGenerally, this is not the best op-
tion as the transferee of the property
will receive the transferor’s original cost basis in the property (original purchase price plus amount of any capital improvements made). A gift tax return will need to be filed and utilization of one’s lifetime gift and es-tate tax credit will need to be used. For Medicaid eligibility purposes, the out-right transfer of the residence creates a 60 month look back period (unless it is a transfer to one’s spouse, blind and/or disabled child, caretaker child and/or sibling with an equity interest), thus disqualifying the transferor and
his or her spouse for nursing home Medicaid (not Medicaid homecare) for 60 months.
From an income/capital gains tax perspective, the use of an outright transfer of the residence results in the transferor losing the Internal Revenue Code (“IRC”) §121(a) principal res-idence exclusion for capital gains (income tax) purposes of $250,000 (single person) or $500,000 (married couple). With the federal capital gains tax rate, including the Medicare sur-tax, being approximately 25%, the
BY ANTHONY J. ENEA, ESQ.
Factors to Consider When Transferring a Residence for Elder Law and Estate Planning Purposes
A PRIMER
WESTCHESTER LAWYER I FEBRUARY 2016 I 11
income tax impact could be signifi-cant. However, if after the transfer is completed, the transferee owns and resides in the premises for two out of five years, he or she will be able to use his or her principal residence exclusion. Any Veteran’s, STAR and Senior Citizen’s Exemptions would also be lost with an outright transfer. It will also be necessary to obtain a fair market value appraisal of the prem-ises gifted for purposes of calculating the federal gift tax credit utilized for the transfer. The consequences of an outright transfer can be financially significant.
Transfer of the Residence with the Reservation of
a Life EstateThis is a type of transfer which was
commonly recommended in the past. A transfer of real property by deed with a retained life estate will also cre-ate the sixty (60) month look back pe-riod for nursing home Medicaid.
Pursuant to §2036(a) of the IRC, the transfer of a residence with a re-tained life estate (possession or enjoy-ment of and/or right to income) per-mits the transferee of the residence to receive a full step up in his or her cost basis in the premises upon the death of the transferor, to the fair market value of the premises on the transferor’s date of death. This occurs because the resi-dence is includible in the gross taxable estate of the transferor upon his or her demise. This, of course, presumes the continued existence of an estate tax upon the death of the transferor.
If a life estate has been retained, a sale during the transferor’s lifetime will result in a loss of the step up in cost basis, thus, subjecting the transferee to a capital gains tax on the sale with respect to the value of the remainder interest being sold (difference between transferor’s original cost basis, includ-
ing capital improvements, and the sale price), and the life tenant pursuant to Medicaid rules is entitled to a portion of the proceeds of sale based on the value of his or her life estate. The life tenant may also utilize the personal residence exclusion with respect to the consideration received for the value allotted to his or her life estate as actu-
arially determined. The portion of the proceeds of sale due to the life tenant could be significant, and will be con-sidered an available resource impact-ing the Medicaid eligibility of the life tenant. The existence of the possibility that the premises may be sold prior to the death of the transferor(s) poses a significant detrimental risk that needs to be explored in great detail with the client if a deed with the reservation of a life estate is contemplated.
It may be advisable to make the gift an “incomplete gift” for gift tax and capital gains tax purposes and the reservation of a limited testamentary power of appointment by the grantor should also be considered.
It should be remembered that IRC §2702 values the transfer of the remainder interest to a family member at its full value without any discount for the life estate retained. Retention of a life estate falls within one of the exceptions of IRC §2702.
Pursuant to IRC §2702, if the homestead is transferred to a non-fam-ily member, the use of a traditional life estate will result in a completed gift of the remainder interest. It should also be remembered that the gift of a fu-ture interest (remainder or reversion-ary interest) is not subject to the an-nual exclusion of $14,000 per donee for the year 2015.
Transfer to a Medicaid Asset Protection Trust
For various reasons, the use of the Medicaid Asset Protection Trust (MAP) is the most logical option. As previously explained, irrespective of the fair market value of the resi-dence transferred to the trust, the pe-riod of ineligibility for nursing home Medicaid will effectively be sixty months (60 months).
However, the properly drafted MAP will allow the residence to be sold during the lifetime of the trans-feror with little or no capital gains tax consequences, as the transferee can utilize the transferor’s personal resi-dence exclusion of $500,000, if mar-ried, and $250,000 if single.
This can be accomplished by re-serving in the trust instrument the power to the grantor(s), in a non-fi-duciary capacity and without the ap-proval and consent of a fiduciary, to reacquire all or any part of the trust corpus by substituting property in the trust with property of equivalent val-ue. The grantor(s) will be considered the owner of the trust corpus for in-come tax purposes. See IRC §675(4).
(continued on page 12)
...the properly drafted
MAP will allow the resi-
dence to be sold during
the lifetime of the trans-
feror with little or no cap-
ital gains tax consequenc-
es, as the transferee can
utilize the transferor’s per-
sonal residence exclusion
of $500,000, if married,
and $250,000 if single.
12 I FEBRUARY 2016 I WESTCHESTER LAWYER
Additionally, the transfer to the trust can be structured to allow the trans-feree to receive the premises with a stepped up cost basis upon the death of the transferor, through the reserva-tion of a life income interest (life es-tate) to the grantor. IRC §2036(a).
The tax advantages and the contin-ued flexibility of being able to sell the premises during the transferor’s life-time without income tax consequenc-es, in my opinion, makes the MAP an ideal option in most circumstances.
The transfer of the residence to the MAP is a taxable gift of a future interest, thus, no annual exclusion is available and the full value of premises must be reported on a gift tax return.
If a limited power of appointment is retained, the gift to the MAP is incomplete. Treasury Reg. 25.2511-
2(b). No gift tax return is technically required, however, it is advisable to review with an accountant the filing of a gift tax return for informational purposes.
On the death of the grantor of the trust, the date of death value of all assets in the trust will be included in the grantor’s taxable estate pursuant to §2036(a) of the IRC, as a result of the life income interest retained by the grantor.
Inclusion in grantor’s estate will result in a full step up in cost basis for all trust assets pursuant to §1014(e) of the IRC, assuming an estate tax is still in existence at the time of the grantor’s demise.
In conclusion, it is most import-ant that all of the aforestated options and their consequences be thorough-
ly reviewed with the client prior to a transfer of real property being made. Just deeding the property out with-out a thorough explanation of the ramifications will inevitably lead to problems.
Anthony J. Enea, Esq., is the managing member of Enea, Scanlan & Sirignano, LLP. Mr. Enea has devoted his practice to educating and protecting the rights of seniors, the disabled and their families from the costs of long term care.
Mr. Enea is president of the Westchester County Bar Foundation, WCBA past president, immediate past chair of the Elder Law Section of NYSBA, past president and a founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA) and a member of the Council of Advanced Practitioners of NAELA.
ESTATE PLANNING(continued from page 11)
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Notions about which custody arrangements are in the “best interests of the child” may be headed for some major revamping. For some time
there has been a presumption that a child needs a “home base” and that “alternating physical custody” could “further the insecurity and pain frequently experienced by the young victims of shared families.”1
Part of this belief comes from society’s mistaken view that divorced families are somehow “broken” and result in maladjusted children.
However, psychological studies over the last thirty years are concluding the opposite, and find that children in joint physical custody arrangements are better adjusted than those in sole-custody arrangements, and on par
with children in intact families.2 One explanation for this is that any maladjustment usually stems from the absence of both parents in a child’s life.
Recent studies teach us that identifying a child’s attachment to her mother and/or father requires different measures.3 For example, secure attachment to the mother is usually identified in matters relating to sensitivity, or who the child turns to when in distress.
Attachment to the father, however, occurs when a father provides security to the child while also encouraging exploration and play, teaching the child how to effectively regulate stress. Identification of these differences has emphasized the importance of having both parents participate in their child’s emotional development.
A number of state legislatures are taking note and creating a presumption in favor of joint physical custody arrangements. While New York has no such presumption, all that could change. Bill No. S2382-201, if enacted, would create a shared parenting presumption in New York.
The bill would amend Domestic Relations Law §240(1) and Family Court Act §654 and establish an order of preference in awarding custody of a minor, with the first preference being shared custody (unless the parties agree otherwise), followed by custody to either parent.
The purpose of the legislation, according to the bill’s legislative memo, is to insure that “both parents share in the care and upbringing of their children.”
The bill’s legislative memo cites to psychological studies (including 38 state sponsored projects and reports from the National Institute of Mental Health) indicating that children of all ages benefit from the full participation of both parents, and that arrangements that effectively exclude one parent interfere with a child’s normal development.
The memo notes that although nothing in current law prohibits awarding shared parenting, courts rarely do so. In fact, only a handful of New York courts have awarded shared parenting.4
Women’s groups have historically opposed shared custody legislation5 likely because statistically women are usually awarded primary physical custody.6 However, given recent passage of the Marriage Equality Act,
Splitting the Baby in Two:
LEGISLATING SHARED CUSTODYBY LYDIA S. ANTONCIC, ESQ.
WESTCHESTER LAWYER I FEBRUARY 2016 I 15
it is time to reexamine these positions.Various states and countries
have recognized the benefits of an “equal” or shared residential custody preference.7 Under the proposed New York bill, where shared parenting is being considered, both parties would be required to submit a proposed parenting plan. Where shared parenting is disputed, the party requesting sole custody would have the burden of proof to demonstrate that shared parenting is not in the child’s best interests. If a court concurs, it must state the reasons for not awarding shared parenting in its decision.
People often get divorced because they disagree on things like different parenting styles or preferred activities, which force them to grow apart. Their children, however, have a right to be exposed to these differences to better understand their parents as well as themselves.
Aside from benefitting children, a shared parenting presumption would greatly reduce costly custody litigation and re-litigation. A child needs the
active involvement of both parents, and with the exception of cases involving domestic violence or severe acrimony, shared parenting is almost always in a child’s best interests.
Endnotes
1 Braiman v. Braiman, 44 N.Y. 2d 584, 407 N.Y.S.2d 449 (1978), citing, Foster & Freed, Law and the Family New York, §29:6A (1978 Supp.).
2 Bauserman, Robert, “Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review,” 2002 Journal of Family Psychology, Vol. 16, No. 1, 91-102.
3 Pruett, M.K., McIntosh, J.E. Kelly, J.B. (2014). “Parental separation and over-night care of young children Part I: Con-sensus through theoretical and empirical integrations,” Family Court Review, 52(2), 256-262.
4 Hardy v. Figueroa, 128 A.D.3d 824, 9 N.Y.S.3d 140, (2d Dep’t 2015) (holding that the child would benefit from equal amounts of time with each parent); See also, Margaret MC v. William JC, 41 Misc.3d 459, 972 N.Y.S.2d 396 (Orange Cty. 2012) (awarding shared physical custody with alternating weeks).
6 Custodial Mothers and Fathers and Their Child Support: 2011, https://www.cen-sus.gov/prod/2013pubs/p60-246.pdf (18.3% of fathers are custodial parents).
7 See, West’s Ann.Cal.Fam.Code §3040; See also, “In the Interests of Children, National Family Law Section,” Canadian Bar Association, pp. 8-10 (June 2010) (ref-erencing statutes in Belgium, Denmark and Australia that state a preference for shared residential custody); “Children Need Both Parents Even After Divorce,” National Review, May 18, 2015 (discuss-ing Wisconsin’s legislative presumption that shared parenting is in the child’s best interests).
Lydia S. Antoncic, Esq. , represents private litigants in family and matrimonial proceedings, as well as children in neglect, custody, and other family court proceedings. She is a member of the Westchester County Bar Association, New York State Bar Association, New Rochelle Bar Association, Westchester Women’s Bar Association and New York Women’s Bar Association (Co-chair, Legislation Committee).
Number of Years as a Member of the WCBA and positions held: 21 years. Currently Vice President and member of the WCBA Executive Committee; co-chair of the Grievance Committee and co-chair of the Trial Lawyers and Tort Law Committee; member of the Golf Committee.
My current job and practice area are: Plaintiff’s personal injury and negli-gence litigation.
How did I decide to work on complex personal injury cases: I started my ca-reer defending personal injury, negli-gence and products liability cases for utilities and insurance companies for nine years; and I always tried to under-stand the medicine related to the inju-ries, and the science behind accident reconstruction or how the product or machinery worked. This became much more important once I started on the plaintiff’s side in White Plains in 1994. If you don’t understand how it works, you can’t explain it to the jury, and you can’t win your case.
One of my favorite legal success sto-ries include: During cross-examination at trial, a defense witness gave testi-mony which directly contradicted his deposition testimony. When I asked him if he was lying in court or lied at his deposition, he actually said, “during my deposition.” That was the first and only time that has happened. With-in an hour after the witness finished testifying, the case settled for over $5 million.
If I were not practicing law I would be: I am proud to be the first attorney in my family but if I wasn’t practicing law, I would be coaching basketball some-where, even if I wasn’t being paid.
People may be surprised to learn: I ran in the NYC Marathon three times, with a personal best of three hours and 56 minutes.
The best thing I did to improve my skill set as an attorney: As a young at-torney, going into court to observe ex-perienced attorneys on trial. It was an excellent way to learn what to do, and not do, and how to behave in court. Observing oral arguments also inspired me to go to law school. When I was in my junior year at college, I decided to attend law school after observing oral arguments before the U.S. Supreme Court. It was an inspiring experience.
What I splurge on: Good Italian wine and my 1968 Camaro convertible. Weather permitting, I take the Cama-ro out every weekend, with the top down, of course.
The best hour of my day is: Sunset, es-pecially summer weekends.
Favorite movie: I’m going to mention two movies: The Godfather, because it’s so true to the book, and everyone can learn so much about life from the story; and Caddyshack, which has so many funny actors and great quotes.
Favorite songs: Everything on Bruce Springsteen’s Born To Run album; Queen’s Bohemian Rhapsody; and
Sympathy for the Devil by the Rolling Stones.
Favorite websites or blogs I read: CNN, The Washington Post and ESPN, which covers almost everything that’s important.
My favorite vacation spots: Bellagio, Italy, and Santorini, Greece, two of the most beautiful places in the world.
Three things I can’t live without: My wife and 2 sons; good Italian food and wine; and sports.
One of my favorite things to do in Westchester: Play as many different golf courses as possible. Westchester has so many beautiful courses.
Best business-related advice I ever got: Extend professional courtesies to everyone, and treat everyone, especial adversaries, with civility, because we all need favors and courtesies during our careers.
My advice to new lawyers: Find ways early on in your career to balance your family and home life with your career. If it takes 20 or 25 years to learn that balance, it’s probably too late.
One of my future ambitions is to: Take classes to learn to speak Italian.
My favorite part of being involved with the WCBA: Getting to know and develop lasting relationships with ex-cellent attorneys and great people. It helps make practicing law much more satisfying working with people you know and trust.
Richard S. Vecchio, Esq. WCBA Vice President
MEMBER SPOTLIGHT
In this column, Tejash V. Sanchala, Esq., WCBA board member and Labor & Employment Law Committee co-chair interviews members about their experiences and insights.
Tejash welcomes your comments and sugges-tions for future columns. He can be reached at [email protected].
WESTCHESTER LAWYER I FEBRUARY 2016 I 17
Get Involved!
Participate as a judge and receive CLE credit!
n Support the Westchester County Division of the NYS Mock Trial Tournament
n Become a competition judge and earn CLE credit
n Make a monetary contribution
n Spread the word about the Mock Trial competition to friends and colleagues
n To volunteer to become a judge or make a donation contact: Luis Rivera, Esq. at [email protected].
The following schools have signed on to participate
NEW YORK STATE HIGH SCHOOL
MOCK TRIAL COMPETITION BEGINS IN FEBRUARY
BY LUIS RIVERA, ESQ.
The 2016 High School Mock Trial Competition is right around the corner.
Each year, the Mock Trial Competi-tion provides Westchester and Rock-land County’s high school students the opportunity to conduct simulat-ed trials, in front of sitting judges, in a realistic courtroom setting.
The experience gained by the par-ticipating students is invaluable and often serves as the initial stepping stone for future legal careers.
We are very excited to again be co-ordinating the competition and look forward to the challenges and suc-cesses of this year’s competition.
Support the CompetitionFunds raised will support the co-ordination of the several rounds of competition, printed materials and their duplication, and reimburse-ment of associated courthouse use including overtime for court officers and staff.
Sponsors NeededPlease consider donating to the WCBA directing those funds specifically to support the Mock Trial Program.
Participate as a JudgeWe need your help! Participate as a judge in the competition. You will be amazed at the talent that you will be witnessing in these high school students!
I have served as a mock trial judge for the last 20 years. I look forward to having the privilege of presiding over these trials. The quality of advoca-cy from these high school students is excellent. The students consistently demonstrate the poise and skill of professionals. The competition staff do a fabulous job keeping everything on track. —Hon. Edward R. Mevec
Albertus MagnusArdsleyBriarcliffByram HillsClarkstown North Clarkstown SouthHackleyHastingsHorace GreeleyIrvingtonLakelandMaria ReginaNorth SalemOssiningRye NeckSaundersScarsdaleSolomon SchechterSomersSuffernWestchester HebrewYorktown
Hon. Francesca Connolly with the 2015 winning team from Byram Hills High School
CALL TO ACTION
18 I FEBRUARY 2016 I WESTCHESTER LAWYER
How much is your time worth screening calls?
Consider as part of your business plan being a member of WCBA’s Lawyer Referral Service.
For more than 40 years the Westchester County Bar Association Lawyer Referral Service (LRS) has been referring thousands of clients annually to LRS attorneys in Westchester.
Each year thousands of potential clients from all over the country seek attor-neys in Westchester by contacting the Lawyer Referral Service.
We prescreen calls
Clients contact the LRS office and explain the nature of their legal needs. The clients are then referred to an attorney based upon the field of law and geographic preference; referrals are made on a rotation basis. Membership in the WCBA LRS can serve as a profitable investment in your future.
Membership Qualifications
Membership in the WCBA LRS is open to all licensed attorneys who are mem-bers in good standing of the New York State Bar and who meet the panel requirements as set forth in the LRS application and rules.
LRS attorneys must maintain an office for the practice of law in Westchester County and be physically available for consultation in that office, and must maintain an up-to-date professional liability insurance policy. We welcome individual attorneys and members of law firms.
Enea, Scanlan & Sirignano, LLP, of White Plains, New York, is staffed with experienced, caring and dedicated attorneys and paralegals. Our team is committed to individualized attention to our clients in careful and thoughtful handling of the following matters:
Elder Law
Medicaid Planning and Applications (nursing home & home care)
Wills, Trusts & Estates
Special Needs Planning
Guardianships (Contested/Non-Contested)
Estate Administration
Medical Malpractice and Nursing Home Negligence
Anthony J. Enea, Esq. is the managing member of Enea, Scanlan and Sirignano, LLP and for approximately 30 years, Mr. Enea has devoted his practice to educating and protecting the rights of seniors, the disabled and their families from the costs of long term care.
Mr. Enea is the past chair of the Elder Law Section of the New York State Bar Association. He is the past president and a founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). He is also a member of the Council of Advanced Practitioners of NAELA and a past president of the Westchester County Bar Association.
Mr. Enea is the current president of the Westchester County Bar Foundation.
To schedule a consultation with an experienced attorney, please contact us at 914-948-1500.
BenefitWCBF
PLATINUM SPONSOR
THANK YOU!
a division ofTHE NEW YORKCOMMUNITY TRUST
WESTCHESTERCOMMUNITY FOUNDATIONW
CF
Do you have clients who want their charitable passions to live on?
We can help you bring their philanthropic legacies to life.
For information, contact Laura Rossi, Esq at 914-948-5166, ext. 3or Jennifer Hu Corriggio, Esq., at 914-948-5166, ext. 4
www.wcf-ny.org
20 I FEBRUARY 2016 I WESTCHESTER LAWYER
The WCBA offers
ONLINE CLASSIFIEDS and Web/Print COMBO Classifieds For more information contact [email protected]
our firm will continue to concentrate in the areas of
Worker’s Compensation & soCial seCurity Disability
referral fees paid as allowed by the ethics rules.
NOMINATE THE FUTURE LEADERS OF OUR ASSOCIATIONThe WCBA is calling for nominations for our 4th Annual New Lawyers Leadership Awards to recognize new lawyers who demonstrate excellent leadership qualities either in their legal careers or in their communities.
n Do you have a friend or colleague practicing less than 10 years who consistently goes above and beyond?
n Do you know someone who serves their profession and community with integrity and distinction?
n Do you know a person who has demonstrated leadership qualities deserving of recognition?
n Now is your chance to recognize a new lawyer who will contribute to the future of our profession and association!
• Two former elected family court judges• Former federal and local prosecutors• Certifiedfederal“learnedcounsel”• Former Presidential Appointee• FiveofficesacrossupstateNewYork• OfficesinWashington,DCandSanDiego,CA
Co-counsel, referrals andemployment opportunities available
Call today for more details:
ALEGRIA & BAROVICK LLP
MAIN OFFICE235 Main Street, Suite 318
White Plains, New York 10601(914) 761-1133
MANHATTAN OFFICE60 East 42nd Street, Suite 1638
New York, New York 10165(212) 861-2800
As longtime practitioners of medical malpractice and personal injury law, we know the medicine, and will cut through the clutter of medical records to help our clients
in a time-efficient manner.
You can feel confident referring your social security disability cases to us.
Our experience sets us apart from other
SOCIAL SECURITY DISABILITY ATTORNEYS.
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www.AlegriaBarovickLaw.com
Brown Bag LUNCH SERIES
Wednesday, February 10, 2016 | 12:30 pm
The WCBA New Lawyers Section and the Westchester Womens Bar Association presents ...
Brown Bag Lunch Series featuring:Hon. Linda S. Jamieson and Hon. Francesca E. Connolly
Join fellow New Lawyers Section members for this unique opportunity to have lunch with Judges Jamieson and Connolly in a casual setting with no formal agenda!
Westchester County CourthouseAttorney Lounge, 2nd Floor111 Dr. Martin Luther King Jr. Blvd. White Plains, New York
24 I FEBRUARY 2016 I WESTCHESTER LAWYER
CLE CENTER
DOMESTIC RELATIONS & FAMILY LAW SECTION Selected Topics in Child Support, Custody, Equitable Distribution and Family Offenses Speaker Bruce J. Wagner, Esq., shareholder at McNamee,
Lochner, Titus & Williams, P.C.
Location C.V. Rich Mansion 305 Ridgeway, White Plains, NY
Price Early Bird discount through Feb. 3 Members: $80/$120 after Feb. 3 Non-members: $120/$160 after Feb. 3 Pace Alum Non-members: $100/$140 after Feb. 3
CLE 2 credits: Professional Practice
To Register See “Registration Form” on page 25Thanks to our Sponsor: MSG Accountants, Consultants & Business Valuators
AFFILIATES AND LAW PRACTICE MANAGEMENT COMMITTEES Today’s Marketing Approach to Law Firms & Reaching Attorneys Via Social Media Moderators Michael Levinson, President, DALCO Reporting,
Price Early Bird discount through Feb. 16 Members: $40/$60 after Feb. 16 Non-members: $60/$80 after Feb.16 Pace Alum Non-members: $50/$70 after Feb. 16
CLE 2 credits: Law Practice Management
To Register See “Registration Form” on page 25
ENVIRONMENTAL LAW COMMITTEE AND MUNICIPAL LAW SECTION SEQRA: A Brief Overview and Case Law Update Regarding the NYS Environmental Quality Review Act Speakers Keith R. Betensky, Esq., McCullough Goldberger &
Staudt, LLP, Co-chair, Environmental Law CommitteeJennifer Gray, Esq., Keane & Beane, P.C., Co-chair, Municipal Law Section Lisa Hochman, Esq., Ryan Law Group, Co-chair, Municipal Law Section Seth Mandelbaum, Esq., McCullough Goldberger & Staudt, LLP, Co-chair, Environmental Law CommitteeLes Maron, Esq., Chair, Municipal Law Section
Location WCBA Headquarters One N. Broadway, Suite 512 White Plains, NY
Price Early Bird discount through March 3 Members: $40/$60 after March 3 Non-members: $60/$80 after March 3 Pace Alum Non-members: $50/$70 after March 3
CLE 2 credits: Professional Practice
To Register See “Registration Form” on page 25
Visit wcbany.org and click on CALENDAR for the most up to date information about CLEs and events
WESTCHESTER LAWYER I FEBRUARY 2016 I 25
CLE CENTER
CANCELLATION, REFUND AND INCLEMENT WEATHER POLICYFull credit will be applied to a future program to those who cancel at least two business days prior to a CLE or other Event, in writing, to [email protected]. The WCBA retains the right to cancel CLE programs and other Events and will provide notification to all registrants who provide their email address. INCLEMENT WEATHER: Please refer to the website home page (www.wcbany.org) on the day of the CLE/Event by 10:00 am for cancellation announcements.
WCBA Member? q Yes q No If not, would you like to join and pay at the member price? Visit our website: www.wcbany.orgCopies of the WCBA CLE Rules and Procedures and the Hardship Policy may be obtained by emailing [email protected] or calling 914-761-3707, ext. 20. Your knowledge of the CLE rules and procedures is presumed when you register for a CLE.
CLE and EVENT REGISTRATION FORM
Please register in advance whenever possible. Registration later than 12 pm 24 hours PRIOR to the CLE will incur a $10 late fee, and applicants will be seated and provided written materials ONLY if space permits. ONLINE: go to the Calendar on our website at http://www.wcbany.org/events/event_list.aspMAIL form and check made out to “WCBA” to: WCBA, One North Broadway, Suite 512, White Plains, NY 10601EMAIL this scanned form to [email protected]. FAX form to 914-761-9402
METHOD OF PAYMENT: CHECK ENCLOSED $_________ OR CHARGE $ _______ q MASTERCARD q VISA q AMERICAN EXPRESS q DISCOVER CARD
CARD NUMBER __________________________________________________ EXP. DATE _____________ SEC. CODE ______________________________
CREDIT CARD BILLING ADDRESS ____________________________________________________________ ZIP CODE _______________________________
NAME ON THE CARD _____________________________________________________________________________________________________________
TRIAL AND TORT LAW, WORKERS COMPENSATION ANDPARALEGAL COMMITTEES The Basics of Medicare Set Asides and Medicare Liens Speaker John Cattie, Esq., Garretson Resolution Group
Location DelBello Donnellan Weingarten Wise & Wiederkehr LLP 1 North Lexington Avenue, White Plains, NY
Price Early Bird discount through March 23 Members: $40/$60 after March 23 Non-members: $60/$80 after March 23 Pace Alum Non-members: $50/$70 after March 23
CLE 2 credits: Professional Practice
To Register See “Registration Form” below
Visit wcbany.org and click on CALENDAR for the most up to date information about CLEs and events
HEALTH LAW COMMITTEE Innovations under the Affordable Care Act: Perspectives from the Field on Care and Payment Models Speaker Barney Newman, MD, Medical Director Emeritus,
Westmed Medical Group Mary Beth Morrissey, Esq., Fordham University, Co-chair Health Law CommitteeGary Sastow, Esq., Brown, Gruttadaro, Gaujean & Prato, LLC, Co-chair Health Law Committee
Location Fordham Westchester 400 Westchester Avenue, West Harrison, NY
Price Early Bird discount through March 23 Members: $40/$60 after March 23 Non-members: $60/$80 after March 23 Pace Alum Non-members: $50/$70 after March 23
CLE 2 credits: Professional Practice
To Register See “Registration Form” below
26 I FEBRUARY 2016 I WESTCHESTER LAWYER
The son of a shrewd lawyer, he probably was born with his eyes wide open.1 His clear-eyed
character made him deal with reality and see things the way they were instead of how they should be.
That unblinking, unclouded view of the venal Renaissance world around him coupled with an unflinching writing style helped make his mark. Unfortunately, popular view of that ability and effort in later years turned his name into a synonym for unscrupulous political rule and led to the banning of his best known book by the Catholic Church 32 years after his death.
The open rejection and popular demonization presents too simple a view of the man and his work—work in which such widely separated leaders as John Adams and Josef Stalin found value.
An out -o f - favor Florent ine politician, writer and diplomat who survived weeks of imprisonment, the wrack and exile, he sought to regain a comfortable foothold in the turbulent politics of his Italian city state home. Using his writing skill, his reading of the ancients and exploiting his extensive diplomatic experience, he wrote a book setting forth his statecraft judgments. He hoped the book would lead to his governmental re-employment. That hope was not fulfilled, but the book earned him enduring notoriety.
Losing his government position with the Medici family overthrow of Florence’s republican rule in 1512, Niccoló Machiavelli’s troubles escalated 502 years ago this month when he was
unfairly tied to an alleged plot against the Medici, leading to his jailing, torture and banishment to the country outside Florence.
Words of a friend, who served Florence as an ambassador to Rome, provided an invitation to the exiled Machiavelli to write the book he called The Prince.2 The friend, Francesco Vettori, wrote Niccoló:
“… one cannot help meeting people, and few have satisfied me, and I have found no better judgments than yours… for when I speak to some of them for any time, or read their letters, I am amazed that they have won any promotion, there is nothing to them but fables, lies and formalities and few rise above the common…”
The exile later replied to Vettori’s letter:
“… And since Dante says that we can never attain knowledge unless we retain what we hear. I have noted down the capital, I have accumulated from their conversations and composed a little book…in which I probe as deeply as I can the consideration of this subject, discussing what a principality is, the varieties of such states, how they are won, how they are held, how they are lost; and to a prince, and particularly a new prince, it should be acceptable…”
Machiavell i reported he was still “enlarging and polishing” his little book. The letter’s reference to “their conversations” points to his reading of the classics and his diplomatic experience.
Called “Secretary” by many,
Niccoló served in one of Florence’s top diplomatic posts for 14 years, accomplishing over 40 missions for the city state republic; promoting a militia to replace reliance on mercenaries and, at one point, working on the city’s military defense installations with Leonardo da Vinci. He explained to Vettori the real purpose behind his book, which he was dedicating to one of the Medici:
“…But present it I must, for necessity hounds me, I can not remain like this without becoming importunate in my poverty. Besides, there is my desire to be employed by these Signori Medici, even if only in rolling a stone; if I did not win their confidence I should not think much of myself. They have only to read this little book to see that the fifteen years I have spent studying statecraft have not been spent sleeping or idling…” He added that his poverty was proof of his good faith and loyalty.
The Prince, like much of his writing, was published after his death. In it he contrasted the moral leadership of Girolamo Savonarola,3 a charismatic Catholic friar, with the bold, ruthless leadership of Cesar Borgia, a military commander and leading political figure. Savonarola suffered the fate of an “unarmed prophet.” He had no force other than his words to thwart his enemies while keeping his supporters in line. The friar was hanged in 1498 after he was excommunicated by Pope Alexander VI and condemned by an ecclesiastical court.
Borgia, the illegitimate son of Pope Alexander VI who was suspected in the murder of his brother, was
BY RICHARD M. GARDELLA, ESQ.Editor-in-Chief WCBA Past President
Back Bench
FROM THE Richard M. Gardella, Esq., is counsel to Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn LLP. He is a past president of the Westchester County Bar Association and the Westchester Coun-ty Bar Foundation, the editor-in-chief of this Magazine, and a former WCBA del-egate to the American Bar Association and the New York State Bar Association.
WESTCHESTER LAWYER I FEBRUARY 2016 I 27
defeated in the end by bad luck not leadership failure, according to Niccoló. Expediency and effective rule were his goals. He employed a ruthless minister to help gain control and eliminate enemies, and then publicly and brutally eliminated that minister to dissociate his rule from that prior violence. Appearances were important and cruelty must have a purpose.
While Machiavelli never used the term “the ends justify the means,” he did write that a prince should be judged by outcome. Borgia’s power ended because of Alexander’s death and the commander’s mistaken backing of a new pope. That mistake’s impact was aggravated by Borgia’s untimely illness, Machiavelli believed.
In writing of Borgia, the former diplomate stated:
“…whoever, therefore, deems it necessary in his new principality to secure himself against enemies, to win friends, to conquer by force or fraud, to make himself loved and feared by the people, followed and revered by soldiers, to destroy those who can or must do you harm, to transform old institutions with new measures, to be severe and gracious, magnanimous and liberal, to eliminate an untrustworthy army, to create a new age, to maintain the friendship of kings and princes in such a way that they must either help you with good grace or offend you with caution—such a person cannot find better examples to imitate than the actions of this man…”4
He criticized Christianity for promoting weakness and “condemning as evil the speaking evil of evil.”
The Prince has been stigmatized for its seeming support for the use of cunning, cruelty and hypocrisy in statecraft. It is not surprising, therefore, to learn that Stalin had a well-marked copy of the “little book.” However, another work by Machiavelli, known popularly as Discourses on Livy, was highly praised by John Adams who saw that work and its discussion of factions
in a republic as pointing to the need for “checks and balances” in a successful republic. The French philosopher, Jean-Jacques Rousseau, viewed The Prince as purposeful satire.
Three things should be kept in mind in judging Machiavelli and his work. First, he wanted a job when he wrote The Prince. Secondly, he was a believer in the republican form of government, finding that form of government the most beneficial. Finally, he was a patriot. Two months before his death in June 1527, he wrote:
“I love my fatherland more than my soul.”
The time in which he lived must also be considered in evaluating him. Italy lay supine as growing nations pushed through the peninsula in search of hegemony. Feckless city state leadership, depending on extorting mercenaries for protection, was no match for the alternating French, Spanish and Papal subjugation.
Perhaps one historian came closest to the truth when he wrote:
“…Machiavelli preached what he deplored, and professed what he could not practise; but only at the cost of a profound self-division. He recognized reality and subdued his own conscience to it; it was an act of discipline, but also of insincerity toward himself. He surrendered to Nature, and his gospel, while it seemed scientifically sound, was morally vulgar. But was it even scientifically sound? For the salvation of Italy he prescribed a code of cultured savagery, which was too primitive to be successfully practised by a race which, for better or worse, had outgrown barbarism, and which could only ruin its civilization. The Prince, in fact, like all such manuals of cultured perversity and anachronistic sternness, was the product of a high civilization in decadence; and its creed, sprung from defeat, could only beget defeat.
“In the last analysis, Machiavelli had proved the opposite of what he set
out to demonstrate. If his gospel proved anything, it was that moral expediency was a contradiction in terms, that the moral law was absolute or nothing, that moral values were intrinsic and could not be subordinated to self-interest without sapping and destroying them. Unwittingly, he confirmed Savonarola…”5
In the end, what Machiavelli should be credited with is his study of history and his belief in the need to apply lessons from history with the help of empirical reasoning. That effort by the former Florence diplomat earned him the title of the first political scientist for some.
Machiavelli finally found financial comfort when the Medici hired him to write a history of Florence. However, when the Republic was returned to power in 1527, he was ignored and died within a few months.
Unfortunately, there are some among us who seek to ignore, erase or alter history to fit their group grievance narrative. History is complicated because people are complicated. It is often far more complicated than the popular view. Machiavelli’s life and work demonstrate that truth.
Endnotes
1 The excellent book, The Man of the Renaissance, by Ralph Roeder, pub-lished by Viking Press in 1933, was relied on in writing this column. The Encyclopedia Britannica network site as well as Wikipedia were also consulted.
2 Il Principe.
3 See the From the Back Bench column in the April 2010 issue of this Magazine’s predecessor Newsletter.
4 See page 33 of the The Prince and Other Writings, translated and explained by Wayne Rebborn, published by Barnes & Noble Classics in 2003.
5 See page 290 of the Roeder book. Vettori-Machiavelli letter exchange quotes also were from the Roeder book.
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