LI Life Calendar - SCBA · 2010. 11. 2. · SCBA OF ASSOCIATION MEETINGS AND EVENTS All meetings are held at the Suffolk County Bar Association Bar Center, unless otherwise specified

____________________

By Sarah Jane LaCova

The Suffolk County Bar Association heldits annual Judiciary Night on Oct. 12 at theHamlet Wind Watch Golf & Country Clubin Hauppauge. This event is scheduled tohonor and acknowledge, in a small way, theenormous contribution Suffolk County’s

Judiciary makes to our community.The theme of this year’s celebration was

Octoberfest, which translated into anevening of good food, good beer and goodcompany. It was an evening where mem-bers of the bench and bar could renew oldacquaintances and converse in a relaxedand congenial atmosphere.

President Sheryl Randazzo thanked thejustices and judge in attendance and intro-duced Federal Senior Judge Leonard D.Wexler and Appellate Justice Sandra L.Sgroi. She also used this venue to announcethe decision of the Board of Directors tocreate a Judiciary Committee where allSCBA members who are members of the

Judiciary can have a forum to come togeth-er to discuss issues of mutual concernreaching a consensus on identifiable issuesto bring to the SCBA leadership for a moreeffective advocacy.

The evening concluded with dessert andcoffee. A wonderful end to a wonderfulevening.

PRESIDENT’S MESSAGE

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 27 No 2October 2010website: www.scba.org

SUFFOLK LAWYERTHETHE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

Help Those in Need at ThanksgivingThe SCBA collection of non-perishable food items and couponsfor turkeys to help needy Suffolk County families celebrateThanksgiving continues at the Bar center.

Healthy Life Series -Eating to LiveBar Center, Thursday, Nov. 4, 4 - 6 p.m.Speaker Josephine Connolly-Schoonen, Executive Director ofNutrition Services Dept. of Family Medicine, Stony BrookUniversity. Learn how to live a healthier life and make better foodchoices. For further information, see page 6.

SCBA Wine TastingSaturday, Nov. 13. 9:00 a.m. - approx. 5:45 p.m.Meet at the Bar center for a bagel breakfast. Then travel bycharter bus to East End Wine country that will include a visit toBaiting Hollows Farm Vineyards and Roanoke Vineyards. Therewill also be a Martha Clara pouring at Jim Winkler’s home andthe traditional stop at Briermere Farms. For further informationsee page 3.

Peter Sweisgood Annual DinnerThursday, Nov. 18, 6 p.m. Hyatt Regency, HauppaugeSponsored by the Lawyers Helping Lawyers Committee. Theevening will feature a number of distinguished guest speakers.For further information and registration call SCBA staff memberMarion Baumer or email Marion at [email protected].

Make a Difference - Be a DonorThursday, Nov. 23, 8 a.m. – 4 p.m.Cohalan Court ComplexIn addition the Bloodmobile is parked outside of the CromartyCourt Complex on the first day of each court term.

Holiday PartyFriday, Dec. 3, 4 – 7 p.m.Enjoy a fun evening celebrating the holiday season at the BarCenter. For further information, call the Bar Center.

BAR EVENTS

Stripping a mortgage in a Chapter 7...................5

DSO’s in Chapter 7.............................................4

Changes to Bankruptcy Exemptions .................4

Tenancy by the entirety sales in bankruptcy ......5

_______________________________________

Redefining Election Law in NYS.......................3

Eating to Live .....................................................6

Restaurant Review............................................15

SCBA photo album......................................16-17

Music review – Stone Temple Pilots ................10_______________________________________

Legal Articles

American Perspectives......................................19

Bench Briefs .......................................................6

Civil Litigation..................................................11

Commercial Litigation......................................14

Consumer Bankruptcy ......................................14

Court Notes.......................................................12

DMV .................................................................15

Foreclosure Settlement Update...........................9

Practice Management........................................13

Pro Bono ...........................................................13

Second Circuit Briefs....................................…12

Trusts and Estates - Cooper ................................9

Trusts and Estates – Harper ..............................11_______________________________________

Academy News.................................................32

Among Us...........................................................7

Calendar: Academy...........................................32

Calendar: SCBA .................................................2

Committee Corner ............................................31

Freeze Frame ....................................................18

Future Lawyers Forum .......................................8

Letters ...............................................................19

INSIDE…OCTOBER 2010

FOCUS BANKRUPTCYAND FORECLOSURE Don’t Miss Out On

Member Benefits___________________

By Sheryl L. Randazzo

The Suffolk County Bar Association always has been,and will continue to be, all about its members. This isthe value of any association, and the SCBA hasremained ever-mindful of its purpose.

For the current year, extra special focus is being given to identifying andaddressing the needs of our numerous and truly diverse membership in newand different ways during these ever-changing times. To this end, SCBAstaff, board members, committee chairs and active members are working hardto develop meaningful opportunities for the association to do so. As yourPresident, I would like to draw your attention to some of these efforts,encourage you to partake in SCBA programs and events, and let you knowthat we have only just begun.

Earlier this month, the SCBA kicked off its first ever “Healthy Life Series”under the able and enthusiastic leadership of member Amy Chaitoff.Through this series, members will be given an opportunity to learn about var-ious life-enhancing practices from professionals within their respectivefields, network with like-minded colleagues, and avail themselves to ideasand practices that can improve the quality of their personal and professionallives. Next up is the subject of nutrition, soon to be followed by feng shui,massage, holistic medicine, acupuncture and sleep management. Based uponknowing myself and many close friends and colleagues, I believe we can alluse a little guidance in these areas. Don’t you agree?

(Continued on page 18)

Suffolk County Bar Association Honors Its Judges

Sheryl L. Randazzo

FOCUS ONBANKRUPTCY

& FORECLOSURESPECIAL EDITION

Many people enjoyed Judiciary Night. President Sheryl Randazzo at Judiciary Night with Hon. Martin I. Esman, left, and FormerSupreme Court Justice Donald Kitson. (More photos on pages 16-17.)

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THE SUFFOLK LAWYER — OCTOBER 20102

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

Thomas More GroupTwelve-Step Meeting

Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge

All who are associated with the legal profession welcome.LAWYERS COMMITTEE HELP-LINE:

631-697-2499

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

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

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

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

For any questions call: 631-234-5511.

OCTOBER 201018 Monday Board of Directors, 5:30 p.m., Board Room.19 Tuesday Federal Court Committee, 5:30 pm, E.B.T. Room20 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m.,

Great Hall.Health & Hospital Law Committee, 6:00 p.m., E.B.T. Room.Taxation Law Committee, 6:00 p.m., Board Room.

21 Thursday Animal Law Committee, 6:00 p.m., E.B.T. Room.25 Tuesday Solo & Small Firm Practitioners Committee, 5:00 p.m.,

Board Room.26 Tuesday ProBono Recognition Night, The Watermill, 6:00 p.m.

$85 per person. Call Bar Center for Reservations.

27 Wednesday Legislative Review Committee, 6:00 p.m., E.B.T. Room.LRSSC Task Force, 5:30 p.m., Board Room.

28 Tuesday Surrogate’s Court Committee, 5:30 p.m., Board Room.Professional Ethics & Civility Committee, 6:00 p.m., E.B.T. Room.

NOVEMBER 20104 Thursday 4:00 - 6:00 p.m., Healthy Life Series, Part II(Nutrition),

Board Room.Workers Compensation & Social Security Disability

Committee, 6:00 p.m., E.B.T. Room.

8 Monday Executive Committee, 12:30 p.m., Board Room.9 Tuesday Education Law Committee, 12:30 p.m., Board Room.

A.D.R. Committee, 6:00 p.m., E.B.T. Room.10 Wednesday Environmental Law Committee, 5:30 p.m., E.B.T. Room.13 Saturday East End Wine Tasting Tour, Further information forthcoming.15 Monday Insurance & Negligence - Defense Counsel Committee,

5:30 p.m., E.B.T. Room.Surrogate’s Court Committee, 5:30 p.m., Board Room.

16 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., E.B.T. Room.Taxation Law Committee, 6:00 p.m., Board Room.

17 Wednesday Labor & Employment Law, 8:00 a.m., Board Room. Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.Solo & Small Firm Practitioners Committee, 5:00 p.m.,

Board Room.Appellate Practice Committee, 6:00 p.m., E.B.T. Room.

18 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.Professional Ethics & Civility Committee, 6:00 p.m., Board Room.Annual Peter Sweisgood Dinner, 6:00 p.m., Hyatt Regency Wind Watch Hotel. Further information forthcoming.

22 Monday Board of Directors, 5:30 p.m., Board Room.

DECEMBER 20103 Friday SCBA’s Annual Holiday Party, 4:00 p.m., Bar Center7 Tuesday Insurance & Negligence - Defense Counsel Committee,

5:30 p.m., E.B.T. Room.8 Wednesday Labor & Employment Law, 8:00 a.m., Board Room.

Executive Committee, 1:00 p.m., Board Room.

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

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

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

Suffolk County Bar Association

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

E-MAIL: [email protected]

Board of Directors 2010-2011

SUFFOLK LAWYERLAURA LANE

Editor-in-Chief

DOROTHY PAINE CEPARANO

Academy News

Leo K. Barnes, Jr.

Eugene D. Berman

John L. Buonora

Dennis R. Chase

Elaine Colavito

Ilene S. Cooper

Justin Giordano

Robert M. Harper

David A. Mansfield

Craig D. Robins

Frequent Contributors

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

TH

E

PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months of Julyand August, by The Long Islander Newspapers under the auspices of TheSuffolk County Bar Association.© The Suffolk County Bar Association,2009. Material in this publication may not be stored or reproduced in anyform without the express written permission of The Suffolk County BarAssociation. Advertising offices are located at The Long Islander, LLC,149 Main Street, Huntington, NY 11743, 631-427-7000.

Send letters and editorial copy for The Suffolk Lawyer to: E.Mail: [email protected] or for Academy news: [email protected]

The Suffolk Lawyer560 Wheeler Road, Hauppauge, NY 11788-4357Fax: 631-234-5899 Website: www.scba.org

Calendar

Ever wonder what you need to do to get your photo in

the SCBA Directory or how to update that old one

that doesn’t even resemble you any more? Well stop

wondering. Call to reserve a timeslot to have your

photo taken free of charge at the SCBA Center on:

Wednesday, October 27 from 9:00 a.m.-11:30 a.m.

To sign up for your photo op, contact Mary in advance at theSCBA at (631) 234-5511 x221, and don’t forget to smile prett y…

Photo Op

THE SUFFOLK LAWYER — OCTOBER 2010 3

_____________________By Joseph J. Savino and Daniel S. Szalkiewicz

The Appellate Division, SecondDepartment handed down a landmark 5-0decision, on August 18, 2010 that rede-fined Election Law in New York State1.The decision allows voters to register andenroll with a new party upon moving to anew county. The case involved DebraOrtutay, a candidate for the New YorkIndependence Party State Committee, andwhether she was required to wait untilafter the November general election inorder to register to vote and enroll in anew party.

The Supreme Court, relying on prece-dent, held when a voter relocates from onecounty to another, a change in partyenrollment will not take effect until afterthe next general election. Faga Savino,LLP, on behalf of Ms. Ortutay appealedthe Supreme Court decision to theAppellate Division, setting the groundsfor a judgment that would drasticallychange party enrollment procedures.

Historical BackgroundTo avoid the practice known as “party

raiding,” the New York State Legislatureenacted delay provisions for thoseenrolling with a new party. These sectionsprovide that upon moving from oneaddress in a county to another within thesame county, the voter must wait untilafter the general election for his change ofenrollment to take effect. Another provi-sion requires that a voter be a resident of acounty for at least thirty days before theyare able to register to vote.

Prior to 1992, a voter had the right totransfer his registration from one countyto another. The law defined the term“move” as a physical relocation of the

voter’s residence, regardless of whetherthe relocation was done inter- or intra-county. In the often cited case of Leemhuisv. Scranton2, the petitioner moved fromSchenectady County to Saratoga County,and immediately applied to change hisvoter registration. The Board of Electionsapproved the change of enrollment, butrequired that the delay provision apply,thereby making the change effective onlyafter the November 1988 election. TheSupreme Court agreed with the Board ofElections.

In 1996, as a response to the implemen-tation of the federal National VoterRegistration Act (NVRA), New YorkState made sweeping reforms to itsElection Law. The NVRA contemplatedthe treatment of counties within a state asseparate units of registrar jurisdiction.When New York incorporated the NVRAin the Election Law, one of the keystonechanges was the elimination of transfer ofregistration between counties. As such,the election law now defines transfer ofenrollment and registration as only occur-ring “in the city or county” of the regis-tered voter. Section 5-400(1) was furtheramended to mandate that a voter’s regis-tration is cancelled if he or she “moved hisresidence outside the county in which heis registered.”

Under the Election Law, a registeredvoter has the ability to “change his enroll-ment” from one party to a different partyor from a “blank” to a party. However, thechange will be effective only after the nextgeneral election.

Coopersmith v. Ortutay and the non-existent transfer of registrationbetween counties

In 1993, Debra Ortutay, under her maid-

en name “Threet,” registered to vote inKings County as a “blank.” She voted inseveral elections, the latest being theNovember 2009 election. In February2010, Ms. Ortutay and her husband,Michael Ortutay, moved to RocklandCounty, and in June 2010, Ms. Ortutayregistered to vote with the RocklandCounty Board of Elections. At the timeshe filled out the New York State VoterRegistration Card, she used her legalname, Debra Ortutay, her new RocklandCounty address, and included her date ofbirth and the last four digits of her SocialSecurity Number. She did not include thelast year she voted, her previous address,county, and that she was previously regis-tered under the name Debra Threet.Because of this omission, the New YorkCity Board of Elections was not notifiedof Ms. Ortutay’s change in voter registra-

tion and, therefore, her Kings County reg-istration remained in an active status.

Ms. Ortutay proceeded to enroll withthe Independence Party, and circulateddesignating petitions for herself and herhusband to be the Male and Female mem-ber of the Independence Party StateCommittee from the 94th AssemblyDistrict. She also witnessed the petitions

Redefining Election Law in NYS

When did you start working at NassauSuffolk Law Services and what do youlike about working there? I started in 1989in the Islandia office. I graduated in the sec-ond class of CUNY Law School determinedto do public interest work, to help people.That’s what I am doing now, helping, espe-cially people who can’t afford an attorney. Iam very proud of the work that I do.

What types of people do you represent?I work with people who are disabled rep-resenting them in civil actions. When aclient comes in, it is my goal to accommo-date their needs. I go to all different courtsin Suffolk County.

What do you like about working atNassau Suffolk Law Services? The unit Iwork in grants me a chance to grow as anattorney. I am not practicing one type oflaw. And I’ve always been involved involunteer work on some level and this jobis at times like being a volunteer. You doit because you believe in the work.

You weren’t always in the unit you are

now at Nassau Suffolk. How did yourwork there begin? When I first joinedNassau Suffolk Law Services I worked onthe Domestic Violence Project which wasa brand new unit at the time. And I helpedcoordinate the Pro Bono Unit which stillcontinues now. We would screen clientsfor eligibility and match them with attor-neys at the Suffolk County Bar.

Prior to working in your present posi-tion you were involved in helping peoplewho couldn’t afford legal representa-tion as well, right? Yes. I worked in legalaid in Nassau County for the Civil Bureauat Family Court.

You did your undergraduate work inNew Paltz? Yes, and I lived there a yearafter graduating law school to work at theCrisis Hot Line. Before being an attorney Ivolunteered at the Sex Crimes Unit for theNew Paltz Police Department. I workedwith the women who were sexuallyassaulted and helped them through theprocess at the hospital. One of the things Idid was help set up the protocol rape kits

for the department. I have always tried tofind ways to be of help in the community.

It was kind of a defining moment inyour life, right? Yes. Working in that areahelped me understand the need for attor-neys to help people with serious problems.But there were other experiences that ledme to be an attorney too.

Which ones? After my undergraduatedegree from the State University of NewPaltz I worked for the Ulster CountyProbation Department in the Crime VictimsUnit. Most of the people there were domesticviolence victims, and members of families ofhomicide victims. I was the go-betweenbetween the victims and the justice system. Iwas a crime victim’s counselor. All of theseexperiences led me to where I am now.

You’ve been a member of the SCBA formany years. How have you beeninvolved? I was an officer at the Academyof Law and was on the Judicial ScreeningCommittee. And now I sit on the Pro BonoFoundation and which I did years ago too.I work to try to coordinate the services atthe Pro Bono Project which is so vital andimportant. I believe it is a godsend to peo-ple out there who can’t afford an attorney.Without the project they’d have nowhereto turn.

Why do you recommend membership tothe SCBA? For new members just startingout it is a great way to meet fellow attor-neys like themselves and also a great wayto meet experienced attorneys. The SCBAmembership for anyone, experienced ornot, is a way to meet like-minded peopleall struggling with the same issues and away to meet people practicing in yourarea. You can call them up and discuss acase. Being a member can help you to be abetter lawyer. And you can have fun too.There are so many events for you to enjoy.

_____________________By Barry M. Smolowitz

Calling all of our resident Oenophiles.As many of you already know, when theleaves start turning and the days start toget shorter it is Harvest on Long Island. Itis also time for the annual SCBA winetasting event. This year we have sched-uled our tour for Saturday, November 13.

As in years past we will have three dif-ferent tastings as well as our traditionallast stop at Briermere Farms. Our tour willstart from the SCBA HQ at 9 a.m. for abagel breakfast and then we will depart tothe East End wine country via a charterbus at 10 a.m. We will visit the Roanokeand Baiting Hollows Farm Vineyards, and

enjoy lunch that will include a MarthaClara pouring at the lovely waterfronthome of Nancy and Past SCBA PresidentJames Winkler. For those of you who arenot aware, Nancy and Jim are quite thechefs and they have agreed to donate andprepare the luncheon culinary delights forour group. We have also arranged for key-boardist Jeffrey Greene to provide back-ground music at the Winkler’s. I wouldlike to thank both Nancy and Jim for open-ing their home to our members, friendsand family.

Please note that due this very specialevent, seating is especially limited thisyear, so please reserve early. Mark yourcalendars, as this is one tour you will notwant to miss.

SCBA Annual Wine Tasting Tour

Joseph J. Savino Daniel S. Szalkiewicz

Carrie Vasiluth


MeetYourSCBAColleague Carrie Vasiluth has been in the business of helping people her entire life.

_____________By Laura Lane

Carrie Vasiluth is one of the good guys. But for her, it isn’t important thatshe be acknowledged for her fine work or that anyone even know what she doesbecause, as she will tell you, it’s the right thing to do. Ms. Vasiluth, a staff attorney atNassau Suffolk Law Services is doing what she always planned to do – help people.

__________________By Leif I. Rubinstein

Earlier this summer, bothhouses of the New York Statelegislature passed bill S. 7034,which proposes, among otherthings, to increase the amount ofcertain exemptions permitted inbankruptcy proceedings filed inNew York State. If signed intolaw, S. 7034 will provide bank-ruptcy protection for a large number ofindividuals and families who at the pre-sent time cannot file bankruptcy withoutputting into jeopardy one or more of theirassets.

In the bill’s memo, the justification forthis bill is to “allow a debtor to keepenough property and money exempt…tocontinue to live without becoming a wardof the State.” Many of the exemptionamounts have not been changed sincetheir original enactment in 1982.

Perhaps the most drastic change con-tained in the bill would be the amendmentto C.P.L.R. section 5206 which wouldincrease the homestead exemption fromthe present amount of $50,000 to$150,000 in homes located in Suffolk,Nassau, New York City, Rockland,Westchester and Putnam counties. The

exemption amount in other NewYork State counties would varyfrom $75.000 to $175,000.

Section 283 of the DebtorCreditor Law would increase theaggregate amount that a debtormay exempt for personal proper-ty from the present $5,000 to$10,000 dollars, of which$5,000 may be in cash. As withthe current law, a debtor would

only be able to claim this exemption if nohomestead exemption is claimed underC.P.L.R. section 5206.

An amendment to C.P.L.R. section5205 would permit debtors to exempt onecell phone and one computer. Jewelry andart would also be exempt not to exceed$1,000 in value, and tools of the tradewould have its exemption increased from


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Proposed Changes to New YorkState Bankruptcy Exemptions

FOCUS ONBANKRUPTCY


____________________By Salvatore LaMonica

Matrimonial disputes havelong been intertwined withbankruptcy cases. One of theprimary focuses of the“Bankruptcy Abuse Preventionand Consumer Protection Act of2005” (“BAPCPA”), was elimi-nating perceived “loopholes” inthe former Bankruptcy Codeand providing additional protec-tions for claims by spouses, former spous-es and children of debtors for support andmaintenance. Perhaps one of the mostsignificant amendments to the BankruptcyCode was the elevation of claims fordomestic support from seventh to first pri-ority in the payment of allowed claims.This article addresses the treatment andpriority of claims for domestic supportafter BAPCPA in Chapter 7 cases.

The term “domestic supportobligation” (“DSO”) was addedto section 101 of the BankruptcyCode by BAPCPA. The term isdefined in section 101 (14A) as:

. . . a debt that accrues before,on, or after the date of the orderfor relief in a case under this title,including interest that accrues onthat debt as provided underapplicable nonbankruptcy law

notwithstanding any other provision ofthis title, that is—(A) owed to or recoverable by—

(i) a spouse, former spouse, or child ofthe debtor or such child's parent, legalguardian, or responsible relative; or (ii) a governmental unit;

(B) in the nature of alimony, mainte-nance, or support (including assistanceprovided by a governmental unit) ofsuch spouse, former spouse, or child ofthe debtor or such child's parent, with-out regard to whether such debt isexpressly so designated;

(C) established or subject to establish-ment before, on, or after the date of theorder for relief in a case under this title,by reason of applicable provisions of—(i) a separation agreement, divorce

DSO’s in Chapter 7Bankruptcy Cases First Priority

FOCUS ONBANKRUPTCY


Leif I. Rubinstein

Salvatore LaMonica



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__________________

By Richard L. Stern

There have been several court decisionsin the Eastern District of New York deter-mining whether a Chapter 7 bankruptcycan “strip off” a second mortgage wheresuch a mortgage is completely unsecuredbecause the first mortgage exceeds thevalue of the residence.

Judge Eisenberg, judge for the UnitedStates Bankruptcy Court for the EasternDistrict of New York in the In re: Lavelledecision (decided November 19, 2009)distinguished the United States SupremeCourt decision of Dewsnup v. Timm, 502U.S. 410 to determine that a completelyunsecured second mortgage can be

stripped off in the Chapter 7proceeding. In the Dewsnupdecision, the U.S. SupremeCourt determined that Congressdid not intend to void such amortgage lien and that it passedthrough the Chapter 7 bankrupt-cy unaffected and in full forceand effect.

In the Lavelle case JudgeEisenberg distinguished Dewsnupasserting two arguments. First, the judgestated that the Dewsnup decision held thata Chapter 7 debtor could not strip down a“first” mortgage. The second argumentwas that Dewsnup did not address the

ability to remove the only unse-cured junior lien. Therefore,Judge Eisenberg concluded thatthe second mortgage claim wasnot an allowed claim underSection 502 of the BankruptcyCode since there was no collater-al to secure its claim. Thus, thesecond mortgage was reduced toan unsecured claim and voided asa lien against the property.

Subsequently, the two otherBankruptcy Judges sitting in the EasternDistrict of New York, Central Islip divi-sion, thereafter rendered decisions con-trary to Judge Eisenberg’s Lavelle deci-

sion.In the In re Pomilio case, the debtor’s

counsel sought to strip off and void thesecond mortgage lien on the residence ina Chapter 7 proceeding pending beforeJudge Grossman. The judge denied therelief sought. The debtor argued that in a


_________________By Robert L. Pryor

Prior to the decision of the SecondCircuit Court of Appeals in CommunityNational Bank & Trust Company of NewYork v. Persky (In re Persky), 893 F.2d.15 (2d.Cir.1989) the convention followedin bankruptcy cases pending in theEastern District of New York was thatwhere an individual tenant by the entirety

owner of a homestead filed aChapter 7 petition in bankruptcy,said interest would not be admin-istered by the trustee in bankrupt-cy or if so, would be administeredat a nominal value. The net effectof this ingrained doctrine was thatindividual debtors were not sub-stantially impacted in seeking todischarge their debt simplybecause some non-exempt equityexisted in their homestead. Thisjudicial predisposition was quite unre-markable as it was wholly consistent withthe fact that historically the sale of tenan-cy by the entirety interests through thevehicle of a judicial execution sale underNew York law would generate a bid ofonly a small fraction of the overall equityin a homestead.

Under New York law, a creditor pos-

sessing a claim against one oftwo tenants by the entiretycannot bring a partition pro-ceeding to sell the real proper-ty. Instead, the creditor is rel-egated to selling the debtor'srights in the real estate, leav-ing the non-debtor tenant'srights undisturbed. At suchexecution sale, the purchaserwould become a tenant incommon in the real property,

subject to the non-debtor spouse's rightof survivorship. See First FederalSavings & Loan Association of NewYork v. Lewis, 218 N.Y.S.2d 857(2d.Dept.1961); Finnegan v. Humes, 298N.Y.S.50 (S.Ct.Lewis Co. 1937).Moreover, the deed acquired by the pur-chaser created no present right of pos-session, but merely a tenancy in common

as to profits, if any, generated fromrental of the real property. In otherwords, a purchaser at an execution salehad no present possessory rights to theproperty during the life of the cotenantby the entirety, and if the cotenantspouse, usually the wife, survived thedebtor, the purchaser's property rightswere completely extinguished. Id. at 66.

As stated by Judge Leonard Austin inthe case of Kantor v. Mesibov, 836N.Y.S.2d 493, (S.Ct.NassauCo.2007):

...a determination of the value of...(the debtor's) interest in the propertyat a judicially directed sale must takeinto account several factors not relat-ed to a simple calculation of . . .[the total] equity; to wit: [thecotenant's] right of occupancy andsurvivorship... the inability of the

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___________________By Elaine M. Colavito

Suffolk County Supreme Court

Honorable Paul J. Baisley, Jr.Report of defendants’ insurance com-

pany investigator was not exempt fromdisclosure; submissions in oppositionfailed to establish that the report was pre-pared solely in anticipation of litigation.

In Ekaterini Papadakis v. H M Kelly, Inc.,and Charles Harlow, Index No.:27363/07,decided on October 5, 2009, the courtheld that the report of defendants’ insur-ance company investigator was notexempt from disclosure, and the motionwas granted to the extent that defendantwas directed to provide plaintiff with acopy of it. The court reasoned that the

defendants’ submissions in oppositionfailed to establish that the report of defen-dants’ insurance company investigator,which was provided to the court for an incamera inspection, was prepared solely inanticipation of litigation.

Motion for a default judgment denied;submissions did not reflect that plaintiffobtained leave of court or the stipulationof all parties in accordance with CPLR§3025 before serving the “Second Supp-lemental Summons” and “Second Amen-ded Complaint”

In Elver Velasquez v. SeltenreichProperty Management Corp., JenniferSeltenreich, Richard Cohen, HopeCohen, Twin Fork Flooring Tile &Mason, Inc. a/k/a Twin Fork Flooring &

BENCH BRIEFS

_______________By Amy Chaitoff

“When was the last time youreally thought about how andwhat you eat? With busy sched-ules it is hard to find the time toprepare healthy satisfyingfoods, and as a result, we canoften make the wrong foodchoices packing on those extrapounds. With such a stressfuloccupation, many of us also turn to food asa means of distressing which only adds tothe problem. With this reality in mind the“Healthy Life Series” presents its secondprogram of the series entitled “Eating toLive” on Thursday, November 4, 2010,from 4-6 pm in the Board Room. Guestspeaker Josephine Connolly-Schoonen,PhD, RD will be sharing her expertise onhow to eat to live a healthier life and howto make better food choices when rushingto that next client conference.

After the discussion, there will be anopportunity to relax and network with

Ms. Connolly-Schoonen andother like-minded SCBA col-leagues over wine and cheese.But space is limited, so pre-registration is strongly encour-aged. The cost is $15.00 forpre-registrants (if received byNovember 2) and $20.00 there-after. You can register by con-tacting Marion at (631) 234-5511 x230.

Note: Amy Chaitoff is the Healthy Lifeseries coordinator. She is a solo practi-tioner with a practice in Bayport. Herpractice focuses on representing individu-als, organizations, and businesses withanimal related legal issues. She is co-founder and immediate past co-chair ofthe Suffolk County Bar Association'sAnimal Law Committee and vice chair ofthe New York State Bar Association'sAnimal Law Committee. Ms. Chaitoff canbe reached at (631) 265-0155 [email protected].

A Minute on the Lips Forever on the Hips!

Amy Chaitoff

John Aicher Susan Beckett Michele Bencivinni Franklin Cama Anadel Canale Jeffrey Canarick Magda Carvalho Vincent Cuocci Robert Edelstein William Etherson Anthony Focarile Edmond Foy James Gentile John Giordano

Howard GrafsteinRichard Guttman Barry Heettner Irwin Izen Melissa Kollen-Rice Stanley LacherWendi LindseyBarry Lites Paul Margiotta Frank Marotta Marina MartielliTerri Minott Cheryl MintzJames Moran

Curtis Morrison Mark Murray Karen Napolitano Barbara O’MalleyJerem O’Sullivan Sam Owusu Debra PetrilloAmanda Reilly Carol Ryder Eric Sackstein Richard Satin Barry Smolowitz Jessica SparacinoGlenn Warmuth

Healthy Life Series Eating to Live – Nov. 4About the Speaker - Josephine Connolly-Schoonen, PhD, RDExecutive Director of Nutrition Services Department of Family Medicine Stony Brook University

The Suffolk County Pro Bono Foreclosure Settlement Conference Project hasbeen representing individuals impacted by the foreclosure crisis in our communitysince May 14, 2009. Although we cannot begin to acknowledge all of the volun-teer efforts that have contributed to this important cause, the SCBA wants to say aspecial “thank you” to the following pro bono attorneys who have volunteered tocover the foreclosure calendars during the month of September 2010:

And an extra special “thank you” to the following pro bono attorneys who havecovered five (5) or more foreclosure calendars during the month of September 2010:

Rory Alarcon James Corcoran John Gannon Raymond Lang


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On the Move…The Law Office of Eric L.

Morgenthal has moved to 150Broadhollow Rd., Suite 207,Melville, N. Y. 11747. They canbe reached at (631) 265-8000,fax (631) 265-8455.

Leora F. Ardizzone has re-joined Ruskin Moscou Falti-schek, P.C. after several years as SeniorAssociate Counsel to Catholic HealthServices. She joins the firm’s Health LawRegulatory and TransactionalDepartments and as a member of theHealthcare Professionals and MedicalDevice practice groups.

Congratulations…To Alex and Diane Maltese on the

birth of their daughter Giuliana AntoninaMaltese on September 15.

To SCBA Past President Harvey B.Besunder (93-94) who was honored bythe Boys and Girls Club of Suffolk at its17th annual Golf Outing on Sept 27.

Congratulations to AnnamarieDonovan, who was named to the list of“Long Island’s 2010 Top Legal Eagles:The Top Rated Attorneys in Nassau andSuffolk Counties.” The list of attorneyswas published in the magazine, LongIsland Pulse, September 2010, and wascompiled from Martindale-Hubbell, theauthoritative resource for information onthe worldwide legal profession.

Congratulations to Bridget T.Faldetta, a partner at DePinto Nornes &Associates, LLP upon receiving her LL.M. degree in Taxation.

To Scott M. Karson (Past President04-05) on his election as Vice Chair of theNassau/Suffolk Law Services Committee,Inc.

Congratulations to SCBA StaffMember Marion Barum who celebrated25 years of dedicated service to the SCBAon September 24.

Announcements, Achievements, & Accolades…

The law firm of Futterman & Lanza,LLP will present a free two-hour seminaraddressing elder law and estate planning -“Medicaid Planning & Asset Protection,”on Nov.17 at their law office, 222 EastMain Street, Suite 314, in Smithtown. Themorning seminar runs from 10 a.m. to 12p.m., and the evening seminar is from 6p.m. to 8 p.m.

Hon. Michael F. Mullen, of Lamb &Barnosky, LLP, spoke at HofstraUniversity on July 12 as part of a SummerFellows program for Long Island highschools conducting scholarly research intodifferent issues facing New Yorkers withrespect to the 2010 elections.

Jacqueline Harounian, of Wisselman,Harounian & Associates, PC has beennamed by New York Super Lawyers mag-azine as one of the outstanding attorneysin the New York Metro area for 2010.Only five percent of lawyers in the stateare named by Super Lawyers, those who

have attained a high degree ofpeer recognition and profes-sional achievement.

Lisa Renee Pomerantzwas recently selected toreceive Long Island BusinessNews’ Fifty or so Around 50Award.

The Suffolk CountyCouncil, Boy Scouts of

America, F.D.R. Special Needs ScoutingDivision honored Michael J. Heller,apartner at Lamb & Barnosky, LLP at its23rd Annual Golf Outing on Aug. 10.

Robert H. Cohen, of Lamb &Barnosky, LLP, was one of the presentersat a program on Sept. 23 on the topic"Cyberbullying and the Law", sponsoredby the Suffolk County Bar Association.

Robert H. Cohen, and Mara N.Harvey, of Lamb & Barnosky, LLP,presented a program on Sept. 28 on thetopic "Alternative Sources of Revenue forSchool Districts," sponsored by theSuffolk County Bar Association.

Sharon N. Berlin, of Lamb &Barnosky, LLP, will co-present withAileen Abrams, Esq., Associate Counsel,NYSSBA,on the topic "Legal Challengesto School Elections and Budget Votes" atthe 91st Annual Convention & TradeShow co-sponsored by the NYS SchoolBoards Association and NYS Associationof School Attorneys on Oct. 22. Theseminar will be held at the Sheraton NewYork Hotel & Towers in New York City.

George L. Roach was presented with aPublic Interest Service Award on Sept. 21at a reception to celebrate the opening ofSt. John’s School of Law’s Public InterestCenter. The award recognizes legalservice providers whose workdemonstrate outstanding commitment tothe public interest.

Eugene R. Barnosky, of Lamb &Barnosky, LLP, will be a moderator of apanel on Oct. 21 on "Back to Basics -Student Residency" at the 14th AnnualPre-Convention School Law Seminar co-sponsored by the NYS School BoardsAssociation and NYS Association ofSchool Attorneys. The seminar will beheld at the Sheraton New York Hotel &Towers in New York City.

Mr. Barnosky gave a presentation on"Student Residency" on Sept. 22 to theSuffolk County Chapter of the New YorkState Association of Business Officials(SASBO)at the Irish Coffee Pub in EastIslip.

Regina Brandow will participate in aThree Village Septa panel discussion asone of three panelists on Oct. 21. For thediscussion Ms. Brandow will concentrateon Supplemental Needs Trust that coin-cide with SSI benefits, Guardianship &Special Needs & Estate Planning. Thepanel discussion is free and will take placeat 7:00 p.m. at Minnesauke ElementarySchool, located at 21 Highgate Drive, EastSetauket. Call 631.675.2540 for details

Judge Michael F. Mullen(Ret.), ofLamb & Barnosky, LLP, gave a lecture onAug. 19 at the Irish Arts Festival inQueens on the Irish writers who have wonthe Nobel Prize for Literature - Yeats,Shaw, Beckett and Heaney.


SIDNEY SIBEN’S AMONG US

Jacqueline M. Siben


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Peter Sweisgood DinnerSponsored by the Lawyers Helping Lawyers Committee, the dinner will be held

at the Hyatt Regency, Hauppauge on November 18, 6 p.m. The evening will fea-ture a number of distinguished guest speakers. For further information and regis-tration call SCBA staff member Marion Baumer or email Marion:[email protected].

Note: In June Chief Judge JonathanLippman created a Task Force to ExpandAccess to Civil Legal Services in New York.This Task Force serves to establish a com-prehensive approach to providing counsel tolow-income New Yorkers in civil cases. TheTask Force, chaired by Helaine M. Barnett,who was the former head of the CivilDivision of the New York City Legal AidSociety, conducted hearings in the four

Appellate Division Departments in lateSeptember and early October. The followingis written testimony by President Sheryl L.Randazzo submitted to the SecondDepartment at the Appellate Division inBrooklyn where the Honorable A. GailPrudenti presided.

October 1, 2010

(Sent by email [email protected])

Helaine M. Barnett, ChairTask Force to Expand Access to CivilLegal Services in New York

Dear Ms. Barnett:As President of the Suffolk County Bar

Association and on behalf of our Officers,Directors and members, we are pleased tosubmit the following statement withrespect to the unmet needs for Civil LegalServices in State of New York for your

Task Force members’ consideration:There is a significant need to expand

access to civil legal services in SuffolkCounty, as is recognizably true through-out most of the state. Currently, foreclo-sure, matrimonial and custody, andArticle 81 guardianship matters representthe vast majority of cases for which thereis limited ready access to legal serviceswithin Suffolk County, and, to our legalcommunity’s credit, the slack is beingpicked up by attorneys acting pro bono.However, pro bono representation has itsinherent short falls, and we cannot rely onthe generosity of practitioners in SuffolkCounty to continue without limit, particu-larly in light of these challenging eco-nomic times.

The foreclosure crisis is a topic untoitself and has been given tremendousattention otherwise. For purposes of this

_______________By Sarah Valente

Since the late 1800s the establishment ofeffective school systems has been a con-stant goal of our federal government. Thegovernment’s first national declaration ofinterest came about in 1867 when the firstDepartment of Education was created forpurposes of collecting “information aboutschools and teaching methods that wouldimprove education. Almost a century later,after years of permitting states to neglectand deny the educational needs of theirpeople, the federal government took a rev-olutionary step to address the educationalneeds of the nation’s general population.That major step came about in 1965 duringPresident Lyndon B. Johnson’s “War onPoverty;” it was known as the Elementaryand Secondary Education Act (ESEA) –the law that revolutionized the federal gov-ernment’s role in education. Prior to theenactment of the ESEA, educational policy

making was nearly exclusivelywithin the dominion of the states;the ESEA established the federalgovernment’s role as the policymaker with state agenciesresponsible for regulation andimplementation. The ESEAfocuses on achieving equal accessto education while emphasizinghigh standards and accountability.

Since the original enactment ofthe ESEA of 1965 all the way through to itsmost recent reauthorization and revision, theNo Child Left Behind Act of 2001 (NCLB),the fundamental goal has remained the same– equal access to quality education. Withevery reauthorization, federal education lawhas increased its effectiveness by shiftingfocus from assistance (in accessibility) toaccountability (for quality education).

With each change in administrationthere is a subsequent change to educationlaw, yet despite every change in policy the

complaints concerning ournation’s broken education sys-tems fail to cease. After so manylegislative efforts nationally andlocally, could it be that after 143years we are still looking for theanswer?

This past March the U.S.Department of Education pub-lished President BarackObama’s “Blue Print for

Reform,” a reauthorization of the ESEAand essentially a revamping of formerPresident George W. Bush’s NCLB.Praised among the business communityand contested by two of the nation’s majorteachers’ unions, the “Blueprint” has leftteachers and parents again wondering ifand how this proposition will repair oureducation system.

Nearly every education law enactedsince ESEA has designated an achieve-

Sarah Valente

FUTURE LAWYERS FORUM

Civil Legal Services in NYS Testimony

Fixing an Ailing Education System



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FORECLOSURE SETTLEMENT UPDATE

______________By Irwin S. Izen

The implementation of theForeclosure Settlement Conferencemandates is now behind us. Myhaving volunteered at the pre-screening exercises at Touro LawSchool, as well as the confer-ences in Ronkonkoma andRiverhead, allows me to offersome “practical” observationsfor those of us who continue to volunteerand for those of us who are consideringvolunteering.

The GoodClients, mortgagors who come to these

conferences wanting to stay intheir homes are usually sincereand well prepared. Most home-owners can sift through theirpaperwork and come in with aclosing statement and otherrelated documentation that willaid our efforts to keep thesepeople in their homes. The cus-tomary requests from thelenders for Hardship letters, W-

2 statements, Tax returns, IRS 4506Tforms and Bank statements can and usual-ly are answered. These same mortgagorsare more than capable of completing theself proclaimed “Financial Work Sheet”

Foreclosure Settlement ConferencesThe good, the bad and the just plain ugly

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TRUSTS AND ESTATES UPDATE______________________By Ilene Sherwyn Cooper

JurisdictionThe preliminary executor of

the estate instituted a discoveryproceeding against four respon-dents. The proceeding was dis-continued against two, withoutprejudice. The remaining tworespondents were an individualresident of Switzerland, and aSwiss company. The petitioner moved forjudgment against these respondents on thebasis of their default.

Although the petition requested aturnover of assets, it failed to define theassets in issue or the sum of money

allegedly owed to the estate.Hence, the court opined that thepetition would have been bettercrafted as an order to attend,requesting an inquiry or exami-nation the respondents. Thecourt noted under such circum-stances, process issues in theform of the order to attend,rather than citation. Such anorder is more akin to a subpoe-

na, and thus may only issue to personsfound in the state. As such, the courtfound that the subpoena issued to therespondent in Switzerland was of noeffect. Similarly, the court found that

Ilene S. Cooper



Circular Mentoring ProgramDo you have an area of expertise you would like to share with a colleague less

experienced in your field? Can you offer guidance in running a practice? Are youa computer whiz willing to share your skills with those who may be somewhattechnologically deficient? Are you a parent who has figured out how to be presentfor your family and manage your practice at the same time? Could you use a littlehelp in any of these areas?

This is the goal of the Suffolk County Bar Association’s new initiative; for eachindividual to be both mentor and mentee, based upon the fact that we all havesomething to offer. It is a collaborative effort to exchange valuable knowledge,skills and experience between one another, thus making our mentoring program“circular.” And any current willingness you may have to share your expertisedoes not create a long term commitment.

If you are interested in participating, simply consider your area(s) of specialknowledge and/or any particular inquiry you might have for which you would likesome guidance. Then contact Lynn Poster-Zimmerman at (631) 673-6905 or by e-mail at [email protected]. If you have already contacted us, thank-you and wewill be contacting you in the near future.

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_________________By Dennis R. Chase

Even the passing Stone Temple Pilots’(STP) fan will recognize this article’s titleas a reference to the lyrics in Trippin’ on aHole in a Paper Heart from their third CDTiny Music... Songs from the Vatican GiftShop. (The song, however, also appearson the compilation albums Thank You andBuy This). Weiland, ironically, directlystated in a radio interview that the veryambiguous and mysterious lyrics to the

song actually allude to a "very bad experi-ence dropping acid."

We’ve seen Scott Weiland performthree times over the years, both solo andwith STP. The first show, also at JonesBeach, was a complete fiasco withWeiland performing (or should we saymerely appearing) at the KRock Revengeof the Dysfunctional Family Picnic in1998. After stumbling around the stage ina seemingly drug induced stupor, Weilandquickly left the stage and left fans stunned.

Ten years later, we saw STP at the VirginMobile Festival, and while Weilandappeared less than sober, he was nothingshort of completely entertaining. Prior tothe show, we weren’t too sure whichWeiland we’d see . . . the incoherentWeiland or the slightly buzzed Weiland,having a good time, but thrilling his fans.On September 4, Weiland and the bandperformed flawlessly with Weiland seem-ingly stone cold sober and surprisinglyinviting band members’ children onstagefor hugs and kisses following their encoreat Jones Beach.

Perhaps, however, the best sign ofthings to come was the sight of Weilandbeing carried on stage by guitarist DeanDeLeo like some kind of drunken fool atthe September 4 show. Weiland, hittinghis mark, then proceeded to drunkenlywalk to his mic. Did we get the joke? Wasit a joke? Fast forward three weeks, whenSpin magazine reported that Stone TemplePilots had suspended their current U.S.tour. While the band's label did not offeran official explanation, they did offer thatthe band would be taking a "short break"before resuming the tour October 8 inTampa, FL. The announcement cameshortly after front man Scott Weiland'sbizarre rant at a Houston gig days earlier,when the singer rambled about his divorce,beating his heroin addiction, and why hestarted drinking again. "The 8th ofDecember will be the time when I stoppeddoing dope," Weiland said. "I starteddrinking again. My brother died, I gotdivorced from my wife, and my wholeworld basically spun around."

Stone Temple Pilots, is an Americanrock band, consisting of Scott Weiland(lead vocals), brothers Robert DeLeo(bass guitar, vocals) and Dean DeLeo(guitar), and Eric Kretz (drums, percus-sion). The band's early hard rock, grunge-reminiscent style of music found themimmediate success in 1992 with the releaseof their debut album Core. Further releas-es from the band have shown a variety ofinfluences, and as such the band is consid-ered to transcend the genre barrier. STPhas not been without controversy, howev-er. STP had the distinct honor of simulta-neously being voted Best New Band byRolling Stone's readers and Worst NewBand by the magazine's music critics in1994.

The set list for STP’s September 4 showincluded some new music . . . the first new

music in more than nine years from theband, from their new self titled reunionrelease which debuted at No. 2 on theBillboard 200 in May. Ronnie Kerswell ofRock Sound said that the album "does notdisappoint” describing it has having“heady guitar trips and crunchinggrooves." Kerswell found Weiland's voiceto be improved in part due to his [alleged]sober lifestyle and wrote that the band was"back in action.” In fact, David Fricke,writing for Rolling Stone called the newalbum "their most focused record since1992's critically abused Core" and madenote of the "classic-rock passions"throughout.

But how did they sound? If the rumorsare indeed true, Weiland’s performance,while not stellar, may have benefitedfrom the use of lip syncing backing tapesduring the show. Unfortunately, even ifWeiland was sober and the band wasadmittedly incredibly tight, the experi-ence suffered from the lasting effects ofHurricane Earl. Tell us how, Mr. ScienceGuy? Wind can blow and distort soundwaves. This is apparent sometimes whenlistening to open-air concerts close to thesound stage as well as far from it. Windcurrents and atmospheric phenomena canalter or distort sound waves, which travelthrough air by compressing and decom-pressing the air molecules. Winds andother air currents can disturb that actionand distort the sound, either by alteringits amplitude, changing its apparentdirection, or even altering its frequencyslightly. While we left our sonicanemometer (an anemometer specificallydesigned to measure wind speed bymeans of the properties of wind-bornesound waves) at home, and therefore


_____________________By Edward J. Nitkewicz

“I am one of the richest men you willever meet,” that is, according to an angelnamed Clarence.

On Sunday, October 3, I was privilegedto serve as Team Capitan for “Edward’sArmy” at the 2010 Walk Now for AutismSpeaks which took place on theBoardwalk at Jones Beach in Wantagh,New York. Nearly 30,000 people partici-pated in the annual fundraiser and manywere affiliated with teams like “Brady’sBunch,” “Luke’s Sky Walkers,” or“Nicky’s Knights.”

“Edward’s Army” was formed in sup-port of my family’s efforts to raise money

to help families and individuals who suf-fer the devastating impact of autism. Ourshirt was military green and featured mybeautiful son’s smiling face.

One in every 150 children born todaywill be diagnosed, like my son Edward,with an Autism Spectrum Disorder.Autism Speaks is committed to facilitatingresearch that will uncover the causes ofautism, develop effective biomedical treat-ments, and hasten the discovery of a cure.Members of Autism Speaks participate inan international effort to determine thecause of the tragic epidemic that is impair-ing so many of our precious children.

Every year, I ask family or friends tosupport my efforts to raise funds for

The 2010 Walk Now for Autism SpeaksHeartfelt thanks to all of you

Not Dead, But Apparently For SaleWeiland’s triumphant return to Jones Beach short lived

MUSIC REVIEW

(Continued on page 27) (Continued on page 27)

Stone Temple Pilots performing.

SCBA member Edward Nitkewicz and his son Edward at teh recent Walk Now for AutismSpeaks at Jones Beach.

IMMIGRATIONLAW OFFICES OF DAVID M. SPERLING

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Diana C. GianturcoATTORNEY AT LAW

TRUSTS AND ESTATES

___________________By Robert M. Harper

Surrogate’s Courts are generally loatheto reform a testamentary instrumentbecause doing so requires the court torewrite the testator’s wishes, as expressedin a will or codicil.1 Notwithstanding thefact that reformation is generally disfa-vored, however, there are instances inwhich this relief is appropriate.2 One suchinstance is when reformation is necessaryto correct a scrivener’s error that alters thetestator’s intended testamentary plan.3

Reforming TestamentaryInstruments

By way of background, the reformationof a will or codicil involves altering theinstrument’s language through the addi-tion or omission of words.4 It is “only[appropriate] when the testator’s intent isdeterminable but the terms of the instru-

ment do not comport with suchintent.” Before reforming a willor codicil, “the court must con-strue the [instrument] to ascertainthe testator’s intent as expressedin the will.”5 The court shouldglean the testator’s intent “notfrom a single word or phrase butfrom a sympathetic reading of thewill as an entirety and in view ofall the facts and circumstancesunder which the provisions . . . wereframed.”

The extent to which a court can resort toextrinsic evidence in determining a testa-tor’s intent is the subject of debate.6 Onthe one hand, some courts have held fast to“the traditional view that [they] are with-out power to reform unambiguous willseven though there was a mistake of fact orlaw, whether in expression or induce-ment.”7 On the other hand, however, sev-

eral courts have found that the“existence of clear and unam-biguous language . . . is not abar to the reformation of a tes-tamentary [instrument]” whenextrinsic evidence supportingreformation is available.8

Regardless, the courts appearto be in agreement that refor-mation is appropriate when thetestamentary provisions in

question are irreconcilably different.

Reformation and Scrivener’s ErrorsInsofar as the provisions of a testamen-

tary instrument are irreconcilably differentdue to a scrivener’s error, reformation isan appropriate remedy. Practitionersshould consider pursuing it in the propercircumstances.

Matter of Kenney is instructive.9 There,the testator’s will provided for the distrib-ution of the residuary to eleven enumerat-ed beneficiaries, in equal shares.However, to the extent that the will also

purported to specify the number of“shares” to be distributed to each benefi-ciary, it was ambiguous because the attor-ney-draftsman inadvertently failed to iden-tify the number of “shares” bequeathed toa charitable beneficiary. Based upon a let-ter memorializing the testator’s instruc-tions to the attorney-draftsman and hisaffidavit, the Surrogate’s Court, New YorkCounty, concluded that the instrumentcontained a scrivener’s error and reformedit to reflect the charitable beneficiary’s“shares” of the residuary.

More recently, in Matter of Conrad, theSurrogate’s Court, Queens County,reached a similar conclusion.10 There, theattorney-draftsman “inadvertently used anearlier version of [the testator’s] will todraft [a] codicil [thereto,] which resultedin inconsistencies between the . . . will andcodicil.” Noting that the inconsistenciesresulting from the scrivener’s errors couldnot be corrected without reforming thecodicil, the court granted the petition for

Reforming Testamentary Instruments To Correct Scrivener’s Errors

Robert M. Harper


___________________By: Leo K. Barnes Jr.

This column has previousaddressed the basis for an Article62 attachment1 in the context ofa foreign confession of judgmentpursuant to CPLR 6201(5). Inthis scenario, by the time NewYork counsel is engaged, thehard work has already been doneby virtue of securing the foreignjudgment; with the judgment in hand,local counsel will simply need to convincethe New York Court that the same is enti-tled to recognition. It is generally a seam-less process.

A much heavier burden is required topursue successfully an attachmentpremised upon 6201(3). Specifically,CPLR 6201(3) provides:

An order of attachment may be grantedin any action, except a matrimonial action,where the plaintiff has demanded andwould be entitled, in whole or in part, orin the alternative, to a money judgmentagainst one or more defendants, when:

3. the defendant, with intent to defraudhis creditors or frustrate the enforcementof a judgment that might be rendered in

plaintiff's favor, has assigned,disposed of, encumbered orsecreted property, or removed itfrom the state or is about to doany of these acts;

The requirements of CPLR6201(3) are twofold. Plaintiffmust show: (a) that the defen-dant has hidden or transferredhis assets in one of the waysdescribed in the statute or is

about to do so, and (b) that defendant'sintent in so acting is to defraud his credi-tors or frustrate the enforcement of a judg-ment in plaintiff's favor. The necessaryshowing must be made with factual detailsin the plaintiff's moving affidavits.2

Assume for this purpose that counselhas confirmed that a party defendant, aftercommencement of the action, has in facttransferred a significant asset, thereby sat-isfying the first prong.3 Instinctively,transfer after commencement of litigationmay seem to constitute a sufficient basisfor inferring fraudulent intent. But thereis much more work to be done.

The most difficult part of plaintiff’sburden is showing the defendant’s state of

COMMERCIAL LITIGATION

Attachment Premised UponIntent to Defraud

Leo K. Barnes Jr.

Check Out the Member Services ListingDid you know that the Suffolk County Bar Association has made arrangements withnumerous vendors and service providers in and around Suffolk County to offer ourmembers discounts on a variety of goods and services? Simply present your cur-rent SCBA Membership Card when you visit a program participant and the discountis yours. For a list or participating vendors, please visit the “Member Services” sec-tion of our web site.



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___________________By Eugene D. Berman

This month we discuss two decisionsthat the United States Court of Appeals forthe Second Circuit issued in September2010 in cases commenced under 42 U.S.C.§ 1983. Section 1983 provides, in perti-nent part, that:

[e]very person who, under color of anystatute, ordinance, regulation, custom, orusage, of any State … subjects, or causesto be subjected, any citizen of the UnitedStates or other person within the jurisdic-tion thereof to the deprivation of anyrights, privileges, or immunities securedby the Constitution and laws, shall beliable to the party injured in an action atlaw, suit in equity, or other proper pro-ceeding for redress….

The outspoken DeanIn Faghri v. University of Connecticut,

No. 09-1862-cv, 2010 WL 3606570(September 17, 2010), the University ofConnecticut, in May 1998, appointedFaghri to a five-year term as the dean of itsSchool of Engineering. Faghri was reap-pointed to a second term as dean in May2003. Thereafter, in September 2004,Faghri was appointed to a chaired profes-sorship.

During his second term as dean, Faghribecame an outspoken critic of many of theuniversity’s policies. Peter Austin andPeter Nicholls, the university’s presidentand provost, respectively, received com-

plaints about Faghri. Amongother complaints, 33 professorshad petitioned for Faghri’s imme-diate replacement as dean. Also,according to Austin, the universi-ty was losing faculty members asa result of Faghri’s attitude.

Nichols requested Faghri toresign as dean at a June 1, 2006meeting during which Nicholsinformed Faghri of the bases forthe request. The following day, afterFaghri refused to resign, he was removedas dean, but retained his chaired professor-ship.

In his Section 1983 action against theuniversity, Austin and Nicholls, Faghriclaimed that he was demoted in retaliationfor exercising his free speech right underthe Constitution’s First Amendment, andthat that he was denied his FourteenthAmendment right to due process. Movingfor summary judgment, the defendantsurged that the First Amendment did notprotect Faghri’s speech, the FourteenthAmendment did not protect his position asdean, and that Austin and Nicholls enjoyedqualified immunity from Faghri’s claims.

The district court denied the motion,finding that issues of material fact barredsummary judgment concerning the Firstand Fourteenth Amendment claims. Thedistrict court also held that Faghri’s “rightsto make the protected statements and toretain his property interest are clearlyestablished because the law governing

those rights has existed fordecades …, a reasonable personwould have known of thoserights [and that] Austin andNicholls are not entitled toqualified immunity at this stageof the case.” Faghri v.University of Connecticut, 608F.Supp.2d 269, 277 (D. Conn.2009).

The interlocutory appeal onthe qualified immunity question followed.(“[A] district court’s denial of a claim ofqualified immunity, to the extent that itturns on an issue of law, is an appealable‘final decision’ within the meaning of 28U.S.C. § 1291 notwithstanding theabsence of a final judgment.” Mitchell v.Forsyth, 472 U.S. 511, 530 (1985)).

A government official is entitled toqualified immunity, and is shielded fromliability for civil damages, when his or herconduct does not violate clearly estab-lished statutory or constitutional rights thatwould have been known by a reasonableofficial in the defendant’s position.Faghri, 2010 WL 3606570*4, citingSaucier v. Katz, 533 U.S. 194, 202 (2001)and Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). Thus, the Second Circuitlooked to Faghri’s free speech and dueprocess claims to determine whether clear-ly established constitutional rights hadbeen violated.

In analyzing Faghri’s free speech claim,the Second Circuit stated that the FirstAmendment protected his right to speak inopposition to university policies. In thisregard, Faghri “could not have been jailedor held liable for such speech or enjoinedfrom speaking.” Faghri, 2010 WL3606570*4. The Second Circuit added,however, that the First Amendment doesnot oblige a public institution to retain anemployee who publicly opposes its poli-cies in a management or policymakingposition. Id.

Because the deanship of the School ofEngineering is an executive, policymakingposition, the management of the universitywas entitled to have such a position occu-pied by one who voiced support for, or atleast did not voice opposition to, the uni-versity's policies. It was therefore entitledto remove Faghri from that position for

publicly opposing the university policies.

Id. With respect to Faghri’s due processclaim, the Second Circuit, after assumingthat Faghri was entitled to some predepri-vation process, found that:

[h]is interest in retaining his deanship(over and above his professorship, whichhe retained) was only incremental andmust be balanced against the university’sinterest in having a senior executive andpolicymaking position filled by one whowas not bent on undermining the universi-ty’s policies and was not a lightning rod ofcontroversy in the faculty.… Given thisbalance of interests, we know no clearlyestablished law suggesting that Faghri hada right to more predeprivation process thanhe received.

Faghri, 2010 WL 3606570*7. The Second Circuit therefore reversed

the district court’s denial of the defen-dants’ summary judgment motion on theirqualified immunity claim.

The price of admissionHollander v. Copacabana Nightclub,

No. 08-5547-cv, 2010 WL 3606570(September 1, 2010) involved Hollander’sclaim that that certain nightclubs in NewYork City discriminated against himbecause he was charged higher admissionprices than women when the nightclubsheld “Ladies’ Nights.” In support of hisSection 1983 gender discrimination com-plaint, Hollander contended that the night-clubs were acting under state law becausethey sold alcohol under an extensive regu-latory system in which the New York StateLiquor Authority issues licenses in accor-dance with New York’s AlcoholicBeverage Control Law.

The district court concluded that theNightclubs were not state actors and dis-missed the action. On appeal, the SecondCircuit, citing the Supreme Court’s hold-ing in Moose Lodge No. 107 v. Irvis, 407U.S. 163 (1972) that that a liquor license isinsufficient to establish state action,affirmed the district court’s judgment.

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


COURT NOTES______________________By Ilene Sherwyn Cooper

Appellate Division-SecondDepartment

Attorneys Suspended:Mitchell S. Sternbach: The

Grievance Committee moved foran order authorizing it, interalia, to suspend respondent fromthe practice of law based uponhis professional misconduct, and to insti-tute and prosecute a disciplinary proceed-ing against him. Based upon the recordpresented, particularly the respondent’sfailure to cooperate with the Committeewith regard to its investigation of severalpending complaints, and in the absence ofopposition to the application, the motionwas granted.

Attorneys Disbarred:William P. Fitzgerald: On March 9,

2010, the respondent entered a plea ofguilty in the County Court, Suffolk Court,to four counts of grand larceny in the sec-ond degree, a class C felony, eight countsof grand larceny in the third degree, aclass D felony, grand larceny in the fourthdegree, a class E felony, and scheme todefraud in the first degree, a class e felony.Accordingly, by virtue of his conviction ofa felony, the respondent ceased to be anattorney and was automatically disbarredfrom the practice of law in the State ofNew York.

Decisions of Interest Second, Ninthand Eleventh Judicial Districts

Attorneys Suspended:Barry R. Feerst: By decision and

order dated July 22, 2009, thecourt suspended the respondentas a result of his conviction of aserious crime, authorized theGrievance Committee to instituteand prosecute a disciplinary pro-ceeding against him, and referredthe matter to a Special Referee.The referee sustained the chargeand the Grievance Committeemoved to confirm. The respon-

dent filed an affirmation in which he didnot dispute the findings of the referee’sreport, but requested the court deem theinterim suspension adequate discipline andreinstate him to practice. In the alternative,he requested that a one year suspension beordered. The respondent was convicted ofthe federal felony of conspiracy to defraudthe U.S. and was sentenced to three yearsprobation, on condition that he participatein 75 hours of community service. Thecourt noted that the respondent’s discipli-nary history consisted of an admonition forneglecting a legal matter entrusted to him.In mitigation, the respondent stressed thathis misconduct was aberrational, and didnot reflect a pattern of bad behavior. Inview thereof, and the fact that the respon-dent did not share in any ill-gotten moniesderived from his crime, he was suspendedfor an additional year beyond the time forwhich he was under an interim suspension.

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

Ilene S. Cooper

SECOND CIRCUIT BRIEFS

Free Speech and Costly Drinks

Eugene D. Berman

Help Needy Suffolk CountyResidents Enjoy Thanksgiving

The SCBA will undertake its annual food drive in partnership with the IslandHarvest Organization. Island Harvest (their motto: Fighting Hunger, TouchingLives), is a not for profit organization fighting hunger on Long Island. In today’seconomy, food drives are becoming more important than ever. Our Bar Associationis committed to assist in alleviating this problem in our neighborhoods. Last year,with the assistance of the SCBA (as well as other many other well-known organi-zations), Island Harvest supplied seven million pounds of food to a network of morethan 570+ food pantries, soup kitchens and other feeding programs. We intend tohelp again this year, and we need all the help we can muster.

When you come to the Bar Center for a CLE seminar or a Committee meetingplease bring with you non-perishable food or your supermarket turkey coupon andbring the trimmings or you can make a monetary contribution because people arehungry all year long. Please participate in this effort and help us make the SCBA acaring neighbor in the greater Suffolk community.

Suggested items: canned vegetables, meats, fish or fruits, soups, sauces, pasta,cereals, dry milk, Almond or Soy Milk, baby formula, spices, coffee, tea, personalcare items, nutritional beverages (ex: Boost or Ensure).

—LaCova


PRO BONO

_______________ By Rhoda Selvin

In 2000, a nurse practitioner who was anacquaintance of James F. Matthews askedhim if he would represent a quadriplegicpatient of hers whose insurance companywanted to cut off his ten-hours-a-day ofskilled nursing care and place him in anursing home. Matthews said he would,but first he wanted to go through regularchannels, that is, have the man become aPro Bono Project client. With that accom-plished, he set to work. Last June, after350 hours, the case closed with a settle-ment that continued the same level ofskilled nursing care. But it was a long andcomplicated battle. For his outstandingcommitment to this case Matthews hasbeen named Pro Bono Attorney of theMonth for October 2010.

Some years before, the client, a door-to-door salesman, had become a quadriplegicas a result of being shot. Althoughdivorced and living alone, he had made alife for himself with the help of the skillednursing care, a computer, a circle offriends, and determination to be helpful toothers as so many had helped him.

When Matthews filed an order to showcause in Suffolk County Supreme Courtand won a stay, the insurance companymoved the case to federal court. A longperiod of discovery followed, entailingvoluminous paperwork that included med-ical reports, and fighting the insurer'sattempts to cut off parts of the client’s

care. A chance for the company to tri-umph came when the client was hospital-ized, for the hospital said he could not bedischarged back to his home alone. Butthe client, valuing his independence,fiercely resisted going to a nursing home.Then good Samaritans--his ex-wife andher second husband, who live in Florida--came to his rescue. They said he couldcome live with them in a cottage on theirproperty about 20 feet from their door.Through Matthews’ ongoing negotiations,the insurance company finally capitulated,allowing the move to Florida along withthe 10 hours each day of skilled nursingcare.

Matthews’ attention to this client did notstop there. He raised money through hischurch for the airfare and even went on theplane himself to help with the difficultiesof travel. Later, when the agreement hadto be signed, he went to Florida again,delighted to see his client happily sur-rounded by family—not only the extreme-ly generous couple who had taken him in,but also his daughter, son-in-law, andgrandchildren, who live nearby.

Matthews spoke glowingly about his probono work saying, “It’s such a rewardingthing to help others who need help. Youcan’t measure the satisfaction.”

A 1977 graduate of Cornell University’sSchool of Industrial and Labor Relationsand of St. John’s University School ofLaw in 1982, Matthews has practiced inHuntington since 1998. His firm,

Matthews & Matthews, Esq., representsbusiness interests in commercial disputes.He has been special counsel to the Townof Huntington since 2000 and to the Townof Huntington Zoning Board of Appealssince 2002. He is also the village attorneyof the Incorporated Village of Northport.Having completed a Mediation Workshopat Harvard Law School in 2000, he joinedthe Mediation Panel of the United StatesDistrict Court, Eastern District of NewYork. He is a member of the SuffolkCounty Bar Association, which previouslyhonored him as Pro Bono Attorney of theMonth in February 2001, and the BrehonSociety and also an arbitrator for theCommercial Arbitration Panel of theAmerican Arbitration Association, NewYork Region.

As an active participant in the AncientOrder of Hibernians he marched as theGrand Marshal of the 2009 St. Patrick’sDay Parade in Huntington. He is also amember of the Parish Council of Our LadyQueen of Martyrs R.C. Church, theKnights of Columbus, and the KiwanisClub.

Matthews lives in Northport with hiswife Tricia and their three children:Kelsey, 16, Julie, 13 and Aidar, 7.Through his children he became interestedin soccer, not just cheering for their teams,but really getting involved. He became amember of both the Northport CowHarbor United Soccer Club and theNorthport Youth Center Soccer League

and has coached for many years. He haseven taken courses on coaching soccer forchildren. He is the kind of coach whoteaches his charges to be good team-mates and to realize that playing their bestis more important than winning. Thus hehelps the

Documents

LI Life Calendar - SCBA · 2010. 11. 2. · SCBA OF ASSOCIATION MEETINGS AND EVENTS All meetings are held at the Suffolk County Bar Association Bar Center, unless otherwise specified