Vol. 36, No. 2 - March 2021 DEDICAT A ED TO LEGAL EXCELLENCE SINCE 1908
www.scba.org
Busiiness Intterru uption Claims and COVID Christine Ma Ch M la lafi, Se Senio ior Pa P rt rtner – Ca C mp mpolo, Mi Middleton & Mc McCormic ick, LL LLP Ro Rosa M. Fe Feeney, of o Co Couns nsel – Le Lewis Jo Johs Av Avallllone Av Aviles, LL LLP
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uestions as to whether business interruption insurance will cover losses related to COVID shutdowns and slowdowns have been asked since the first of Governor Cuomo’s ’ Executive Orders requiring all non-essential businesses to shut down and have their employees stay home. There have been hundreds of lawsuits against insurers seeking coverage fo f r lost revenue and other business interruption losses related to COVID. In this short period of time, there have only been a handful of court decisions, mostly fa f voring insurers, but with some policyholder wins. Some states have proposed legislation thatt woulld requiire insurers wh ho proviide
property t insurance to cover business interruption during the coronavirus pandemic.
W at is Wh i th t e is i sue? Business interruption coverage is provided ffor in a business’s ’ property t insurance, which provides insurance coverage fo f r physical loss or damage to an insured’s ’ property t . T pical policy language (ISO fo Ty f rm CP 0032): We will pay fo f r the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration.” The “suspension” must be caused by direct physical loss of or damage to property at premises (Continue (C ued on o pa page 24 24)
PERSONAL INJURY R • SPECIAL SECTION • PERSONAL INJURY R
PRESIDENT HON. DERRICK J. ROBINSON’S MESSAGE
A Plaintiff’s Primer for Medicare and Medicaid Liens
Bar Associations - Heartbeat of the Legal Profession
By Mi M chael J. Fa F mig i lilettit
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s a Plaintiff f ’s ’ personal injury attorney, y your duty is not merely to resolve your client’s ’ claim fo f r the highest dollar amount possible. Plaintiff f ’s ’ counsel must also take k into consideration several entities which may hold a lien against your client’s ’ recovery. This article will address an attorney’s ’ obligation with respect to reporting and repayment of Medicare and Medicaid liens. This article is not meant to be an exhaustive treatise but is intended to provide an overview of the Medicare and Medicaid lien management process. One practice point on liens in general must be underscored: A personal injury case should not be settled without identify f ing possible lienholders, obtaining a final lien amount; and att t empting to reduce the lien amount. Medicare holds a lien fo f r any payments made fo f r treatment of injuries claimed in a personal injury claim. Plaintiff f ’s ’ counsel should immediately notify f Medicare of the case. Although
ar associations perfo f rm essential vital functions, both in the legal profe f ssion and in society t at large. These include lawyers who want to participate in pro bono work, educate the public about legal issues, report on developing legal trends, advocate fo f r legal refo f rm, and maintain the legal profe f ssion's integrity. We have active members who demonstrate their commitment and love of President Hon. the SCBA. That commitment reminds Derrick J. Robinson us to appreciate the opportunity t fo f r each of us to get through this unprecedented - in - our life f time global crisis and come out stronger in the end. However, r there are other things that bar associations provide that are vital and irreplaceable to every r lawyer's practice: gett t ing to know other lawyers, developing relationships, working with a community t
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★★★ INSIDE THE SUFFOLK LA L WYER • MARCH 2021 ★★★ Building to be Named for Judge Floyd page 2 Black History Month Celebrated page 16
★ SPECIAL SECTION ★ SPECIAL SECTION ★
PERSONAL INJURY R page 5-11
An Overlooked To T ol of Trial Advocacy page 9 Converting Yo Y ur Paper Cases to E-file page 15 Important Decisions of Interest page 19
Admin Judge Andrew Crecca asks that Supreme Court Building be named after Suffolk County’s first African American Supreme Court Justice - Marquette L. Floyd
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t the request of Suff ffolk County t District Administrative Judge Andrew A. Crecca, a Re R solution has been introduced at the Suff ffolk County t Legislature to name the Supreme Court Building located in the John P. P Cohalan, Jr. r Court Complex the Marquette L. Floyd Supreme Court Building. Former Supreme Court Justice Marquette L. Floyd dedicated 58 years of service to Suff ffolk County t and our nation. Through his perseverance, tenacity ty, and unwavering commitment to his community ty, he became the first judge of color in Suff ffolk County t in 1969. “Naming the Supreme Court building at the John P. P Cohalan, Jr. r Court Complex aft f er the County t ’s ’ first African American Justice is a fitting tribute to his legacy as a true pioneer of justice and equality – Judge Floyd is a source of inspiration to younger generations seeking to overcome racial bias and socio-economic adversity ty," said Judge Crecca. "I am truly grateful to Legislator McCaff f rey fo f r introducing this Re R solution at my request.” Marquette L. Floyd was born to a single mother on October 14, 1928 in Winnsboro, South Carolina. He overcame inauspicious beginnings and the challenges of consistent and systemic racial discrimination to achieve a storied and successful legal career. r When he was 16, his fa f mily left f rural South Carolina fo f r New Yo Y rk to seek better opportunities. He attended White Plains High School aft f er which he briefly attended New Yo Y rk University befo f re joining the United States Air Force. While in the military, y he was denied admission to Off f icers Candidate School under the U.S. military policy of segregation. The policy was not fo f rmally abolished until July 26, 1948 by President Harry S. Tr T uman. Despite these disadvantages, he served his
Court N tes B Il By Ilene Sh Sherwyn Co Cooper
Appellate DivisionSecond Department Attorney e Resig i nati t ons The fo f llowing attorneys, who are in good standing, with no complaints or charges pending against them, have voluntarily resigned from the practice of law in the State of New Yo Y rk:
Robert Benedict Adams Jonathan Bartov Nancy Sue Chupp Susan D. Fort Albion James Giordano Paul F. Kirgis Molly Christy Montegari Andrea R. Schneider Leonard Myron Schnitzer Steven Swenson Deron Tucker Leonard Great Yoo
Supreme Court Justice - Marquette L. Floyd country honorably fo f r six years. Following his honorable discharge in 1954, Justice Floyd graduated from New Yo Y rk University t and decided on a career in law. He attended Brooklyn Law School. While attending school, he was employed as a maintenance man, a clerk, a stock boy and in other odd jobs to pay his tuition. He was admitt t ed to the bar in 1960 and entered private practice in Amity t ville, NY. Y Throughout his time in Suff ffolk County ty, he was active in politics, civic groups, assisted in fo f rming charitable organizations and was, in all regards, deeply committed to his community t . In 1969, he was elected to Suff ffolk County t District Court and became the first person of color to sit on the Suff ffolk County t bench. In 1986, Judge Floyd was appointed to the Suff ffolk County t Court and, in 1989, was elected to New Yo Y rk State Supreme Court where he presided over significant civil cases until 2002. During his tenure as a Supreme Court Justice also served on the Appellate Te T rm, Second Department, and in 2001, was designated its Presiding Justice. At A the end of 2002, Justice Floyd retired from the bench. Justice Floyd was a mentor to the youth in his community t and remained committed to the advancement of people of color. r Justice Floyd died on December 12, 2020 at the age of 93. Justice Floyd had been heard to say, y “A “ s a child I thought being rich meant having money and material things. Now I know being rich means the life f you live and the legacy you leave.” District Administrative Judge Crecca said, “Justice Floyd is an inspiration to the residents of Suff ffolk County no matter what their race, socio-economic background or the circumstances of birth. His dedication to community t and commitment to justice and excellence are the pillars on which the courts stand. Marquette Floyd was truly a pioneer of justice.” “I was privileged to honor the request of Suff ffolk County t District Administrative Judge Andrew A. Crecca to introduce Legislation naming the Supreme Court Building in the John P. P Cohalan, Jr. r Court Complex as the Marquette L. Floyd Supreme Court Building,” said Legislator McCaff f rey. “His story and his life f are an inspiration to all of us. I am proud to sponsor this legislation so that Judge Floyd’s ’ name and accomplishments will never be fo f rgotten.”
2 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
Suff ffolk County Bar Association 60 Wheeler Road • Haup u pauge, NY 11788-4357 Phone (631) 234-5511 • Fax (631) 234-5899 E-mail: scba@scba.org
SCBA BOARD OF DIRECTORS
THOMAS MORE GROUP TWELV L E-STEP MEETING
Hon. Derrick J. Robinson.......................................................President Daniel J. Ta T mbasco....................................................... President Elect V ncent J. Messina, Jr...................... First Vi Vi V ce President, Legal Editor Corn r ell V. V Bouse.............Second Vi V ce President, Deputy Legal Editor Patrick McCormick................................................................Tr T easurer Hon. John J. Leo.................................................................... Secretary r Andrea A, Amoa............................................................. Director (‘21) Hon. Caren Loguercio.....................................................Director (‘21) Theresa A. Mari.............................................................. Director (‘21) Peter R. McGreevy..........................................................Director (‘21) Jeff ffery r S. Horn r ................................................................Director (‘22) Paul Devlin..................................................................... Director (‘22) Peter D. Ta T msen.............................................................. Director (‘22) Cynthia S. Va V rgas............................................................Director (‘22) Jarrett M. Behar...............................................................Director (‘23) Catherine E. Miller..........................................................Director (‘23) David R. Okrent..............................................................Director (‘23) Daniel A. Ru R sso.............................................................. Director (‘23) Patricia M. Meisenheimer....................... Past President Director (‘21) Justin M. Block....................................... Past President Director (‘22) L nn Poster-Zimmerman.........................Past President Director (‘23) Ly Sarah Jane LaCova..................................................Executive Director
b blished by Publ P
S rvin Se i g Fi Fire & EM EMS He H ros on Long Is I la l nd & 12 St State t s
Frank C. Trotta, Publisher Tim Edwards, Executive Editor Gary r P. Joyce, Editor Gregory r A. Jones, Art Director SEND EDITORIAL COPY AND LISTINGS FOR AMONG US TO:
editor@scba.org
The Suffolk Lawyer The Suff ffolk Lawyer E-Edition and Magazine are the Off f icial Publications of the Suff ffolk County t Bar Association. The E-Edition (six times per year) and Magazine (three times per year) are published by Fire News, 146 South Country Ro R ad, Suite 7, 7 Bellport, NY 11713, under the auspices of the Suff ffolk County t Bar Association. The articles published herein are fo f r info f rmational purposes only. They do not reflect the opinions, beliefs f and viewpoints of The Suff ffolk County t Bar Association nor does The Suff ffolk County t Bar Association make k any representation as to their accuracy. Advertising contained herein has not been reviewed or approved by The Suff ffolk County t Bar Association. Advertising content does not reflect the opinion or views of The Suff ffolk County t Bar Association.
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CALL 631-286-4566 • EMAIL: frank@firenews.com MARCH 2021 EDITION
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 3
Calendar of Association Meetings and Events
All meetings are held at the Suff ffolk County t Bar Association Bar Center, r 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) fo f r any changes/additions or deletions which may occur. r For any questions call: 631-234-5511
MARCH 2021 2 Tuesday
3 Wednesday
4 Thursday 5 Friday 8 Monday
11 Thursday 17 Wednesday 18 Thursday
22 Monday
APRIL 2021 1 Thursday 5 Monday
6 Tuesday 7 Wednesday
8 Thursday 12 Monday 14 Wednesday 15 Thursday 21 Wednesday 22 Thursday
MAY A 2021
3 Monday 4 Tuesday
5 Wednesday
6 Thursday 10 Monday 12 Wednesday 13 Thursday 17 Monday 20 Thursday
Appellate Practice Committee Meeting, 5:30 p.m., ZOOM Membership Services Committee Meeting, 1:00 p.m., ZOOM T ansactional & Corporate Law Committee Tr Meeting, 5:00 p.m., ZOOM Intellectual Property t Law Committee Meeting, 6:00 p.m., ZOOM Federal Court Committee Meeting, 1:00 p.m., ZOOM Court Confe f rencing & Litigation Ta T sk Force, 1:00 p.m., ZOOM Executive Committee Meeting, 5:30 p.m., Board Ro R om T xation Law Committee Meeting, 5:00 p.m., ZOOM Ta Surrogates’ Court Committee, 6:00 p.m., ZOOM Profe f ssional Ethics & Civility t Committee Meeting, 5:30 p.m., ZOOM Animal Law Committee Meeting, 8:30 a.m., ZOOM Condemnation and Ta T x Certiorari Committee, 5:30 p.m., ZOOM Board of Directors Meeting, 5:30 p.m., ZOOM
Intellectual Property t Law Committee Meeting, 6:00 p.m., ZOOM Federal Court Committee Meeting, 1:00 p.m., ZOOM Executive Committee Meeting, 5:30 p.m., Board Ro R om Appellate Practice Committee Meeting, 5:30 p.m., ZOOM Membership Services Committee Meeting, 1:00 p.m., ZOOM T ansactional & Corporate Law Committee Tr Meeting, 5:00 p.m., ZOOM T xation Law Committee Meeting, 5:00 p.m., ZOOM Ta Surrogates’ Court Committee, 6:00 p.m., ZOOM Board of Directors Meeting, 5:30 p.m., ZOOM Education Law Committee, 12:30 p.m., ZOOM Animal Law Committee Meeting, 8:30 a.m., ZOOM Profe f ssional Ethics & Civility t Committee Meeting, 5:30 p.m., ZOOM Condemnation and Ta T x Certiorari Committee, 5:30 p.m., ZOOM
SCBA Annual Meeting, 6:00 p.m., ZOOM HYBRID Appellate Practice Committee Meeting, 5:30 p.m., ZOOM Membership Services Committee Meeting, 1:00 p.m., ZOOM Federal Court Committee Meeting, 1:00 p.m., ZOOM T ansactional & Corporate Law Committee Meeting, Tr 5:00 p.m., ZOOM Intellectual Property t Law Committee Meeting, 6:00 p.m., ZOOM Executive Committee Meeting, 5:30 p.m., Board Ro R om Education Law Committee, 12:30 p.m., ZOOM Surrogates’ Court Committee, 6:00 p.m., ZOOM Board of Directors Meeting, 5:30 p.m., ZOOM Animal Law Committee Meeting, 8:30 a.m., ZOOM Condemnation and Ta T x Certiorari Committee, 5:30 p.m., ZOOM
MONG
SEND INFO TO jane@scba.org
US
CONGRAT A ULAT A IONS BABIES BORN… SCBA member Karen Lee Dunne just became a new grandmother to Beau Patrick Murphy, who was born on February 9th weighing in at seven pounds, nine ounces, 20.5 inches. Frank C. Trotta, publisher of Fire News and The Suff ffolk Lawyer, r and his wife f Marie Trotta, welcomed on February 12 a grandson Frank Carmine Trotta, IV, weighing in at eight pounds, 14 ounces, 21 inches long. Parents Jessica and Frank C. Trotta, III, and baby sister Valentina are just thrilled with their new addition to the fa f mily.
Beau Patrick Murphy
ACHIEVEMENTS & ACCOLADES… Congratulations to the Hon. Cheryl A. Joseph, Supervising Judge of the County t ’s ’ Matrimonial Parts, who was the recipient of the Hon. Marquette L. Frank Carmine Trotta IV Floyd Achievement Award. And Ode JeanClaude, Senior LA L N Administrator in the IT Department, received a Special Employee Recognition Award. The awards were presented at the February 24, 2021 Black History Month Celebration. Congratulations to Shari Lee Sugarman who was appointed Secretary to the Board of Directors of Habitat fo f r Humanity t of Suff ffolk, Inc. fo f llowing a five-year term as director. r The Off f icers and Directors add their congratulations to SCBA member Melissa Negrin-Wiener who was appointed to the Elija Foundation Board of Directors. The Levitt t own Nonprofit organization serves children, young adults and their parents, educators, profe f ssionals and caregivers aff ffected by the Autism Spectrum Disorder. r Vincent F. Stempel, Esq. P.C. has merged with Caterson and LoFrumento, LLP to fo f rm a new law firm Stempel, Catterson, LoFrmento, Carlson & Biondo, LLP. P They will fo f cus their practice on matrimonial law, commercial litigation and personal injury. Congratulations to the law off f ices of Robin Burner Daleo, PLLC and Gabiele A. Burner who are opening up a second location in Hampton Bays, NY. Y
ON THE MOVE... SCBA member Chad H. Lennon, will be leaving To T uro Law Center and starting in a new position with Tu T lly Rinckey PLLC, practicing in the area of military and security t clearance matters.
LAW A YER ASSISTA T NCE FOUNDA DATION (LAF) Founded in 1991, the LAF was created to provide assistance to lawyers and judges in times of crisis. The LA L F acknowledges with sincere gratitude the donations received in memory of a dear friend of the Bar Association – Joseph V. V LaCova. Alan E. Weiner Peggy Foy Joanne McAv A ey Hon. Carol MacKe K nzie R gina Brandow Re Hon. Sandra L. Sgroi Cynthia Doerler Richard Weinblatt Joseph Sgroi Debra Rubin R bert P. Ro P Guido Cory H. Morris Diane C. Carroll S.D. Middleton, P. P C. Victor J. Ya Y nnacone Domenick Ve V raldi Scott P. P McBride L nne A. Kramer Ly Elaine Tu T rley Marion England Daniel J. Ta T mbasco Gustave Fishel III Lou England Douglas J. Good Hon. Vincent J. Louis E. Mazzola Eugene Denicol Martorana Peter D. Ta T msen Hon. John C. Bivona Hon. Isabel E. Buse Ilene S. Cooper Lance Pomerantz James Leonard Philip Siegel R gina Ve Re V tere Hon. John Andrew Ka K y Richard H. Schaff ffer Richard Schaff ffer John L. Buonora R gina Ve Re V tere Steven Kuhn John R. Calcagni Gabriele Marano Hon. Victoria W. Matthew Groh Hon. Jennife f r Gumbs-Moore Patrick McCormick Mendelsohn P Campolo, Middleton & McCormick, LLP.
4 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY 2020 Court of Appeals Decisions in Personal Injury B Ja By Jason W Ha H ke k
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his past year, r we have collectively navigated a changing legal landscape marked by limited in-court proceedings and business restrictions. Despite these unprecedented changes, the Court of Appeals decided several issues within the context of tort litigation. We are fa f miliar with the law in our state involving dog bite cases. Ty T pically, y liability t attaches where an owner knew or should have known of a dog’s ’ prior vicious propensities. However, r what happens when a patron of a veterinary clinic is attacked by another patron’s ’ dog? The Court of Appeals recently established the liability t standard that applies to a veterinary clinic in Hewitt v. Palmer Ve V terinary Clinic, P. P C., 35 N.Y. Y 3d 541 (2020). In Hewitt, a dog noticed a cat in the waiting room aft f er undergoing a medical procedure and jumped at the cat’s ’ owner. r The veterinary clinic moved fo f r summary judgment arguing that it did not have knowledge of the dog’s ’ vicious propensities. Interestingly, y the Court of Appeals concluded that veterinary clinics are not protected by the vicious propensities notice requirement be-
MARCH 2021 EDITION
cause they “have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed.” Id. The Court of Appeals specifically noted that the dog was taken into a waiting room crowded with other strangers and pets aft f er undergoing a potentially painful medical procedure and that these fa f ctors could fo f rm the basis fo f ra finding of negligence. The Court of Appeals also decided a novel issue within the context of General Municipal Law §50-h, with drastic consequences. This statute generally requires a claimant who has served a notice of claim on a municipality t to comply with the municipality t ’s ’ demand f r an examination under oath befo fo f re commencing suit. However, r does a claimant have the right to have a co-claimant present? In Colon v. Martin, 35 N.Y. Y 3d 75 (2020), the operator and passenger of a vehicle struck by a city t vehicle were represented by the same attorney and served a joint notice of claim. Aft f er receiving separate “Notices of 50-h Hearing” fo f r consecutive hearings on the same day, y the claimants appeared fo f r them in June of 2015. However, r the
claimants’ attorney would not permit the hearings to proceed unless each claimant was present while the other testified. The city t warned that it was not waiving its right to the hearings and that the claimants’ refusal to proceed separately violated the General Municipal Law. The parties could not arrive at an agreement and the hearings never occurred. Notwithstanding, the plaintiff ffs filed suit and ultimately moved fo f r summary judgment on the issue of liability t . The city t crossmoved fo f r summary judgment based on the plaintiff ffs’ fa f ilure to comply with the city’s ’ section 50-h hearing demands. Aft f er the Appellate Division aff f irmed the Supreme Court’s ’ order dismissing the action with two Justices dissenting, the plaintiff ffs appealed to the (Continue (C ued on o pa page 26 26)
Jason W. Ja W Ha Hake Partner, r Wi W nkler Ku K rtz tz, LLP
Jason W Ha Ja H ke k is i a pa p rt rtner at Wi a Winkl kler Ku K rt rtz, LL LLP wh where h fo he focuses on o pl plain intiff ’s pe pe r sonal in so injury r lilitigation.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 5
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY
Inactive Case May Be Restored After Six Ye Y ars B Pa By P ul De Devlin
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n the case of Guillebeaux v Parrott, (188 AD3d 1017, 7 (2nd Dep’t ’ 2020), the Supreme Court, Queens County ty, had granted defe f ndant’s ’ motion to vacate the note of issue on December 6, 2012. The plaintiff f then moved to restore the case to active status. The Supreme Court denied plaintiff f ’s ’ motion on the doctrine of laches. The Second Department recently reversed the Supreme Court and granted the plaintiff f ’s ’ motion in a decision dated November 18, 2021, allowing the case to be restored over six years aft f er the trial court vacated the note of issue. The Second Department reasoned as fo f llows: Pursuant to CPLR 3404, “A “ case in the supreme court or a county court marked ‘off f ’ or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereaft f er, r shall be deemed abandoned and shall be dismissed without costs fo f r neglect to prosecute. The clerk shall make k an appropriate entry without the necessity t of an order. r ” However, r this rule does not apply to pre-note of issue cases (see Guillebeaux citing WM Specialty t Mtge., LLC v Palazzollo, 145 AD3d 714, 715 [2016]). Rule 3216 of the CPLR does provide fo f r dismissal of an action fo f r want of prosecution prior to filing of the note of issue, but requires the court or party t seeking dismissal to serve a 90-day notice on the party against whom the relief is sought. Here in the Guillebeaux case, the defe f ndants did not serve such a notice on the plaintiff ff. As such, dismissal pursuant to this rule was not applicable. Another possibility t fo f r defa f ult would have been a court order pursuant to 22 NYCRR 202.27. This rule provides that the court may dismiss an action, “A “At any scheduled call of a calendar or at any conf rence, if all parties do not appear and proceed or announce their fe
readiness to proceed immediately or subj b ect to the engagement of counsel . . .” However, r this rule requires the judge to make k an order regarding defa f ult or dismissal. In the Guillebeaux matter, r the Supreme Court did not issue an order pursuant to this rule. Finally, y the Second Department fo f und that “[t]he doctrine of laches does not provide [a] basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable” (Arroyo v Board of Educ. of City t of N.Y. Y , 110 AD3d 17, 7 20 [2013]; see Onewest Bank, FSB v Ka K ur, r 172 AD3d 1392, 1393 [2019]). “The procedural device of dismissing a complaint fo f r undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action fo f r general delay where the plaintiff f has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b)” (Campbell v New Yo Y rk City t Tr Tr. Auth., 109 AD3d 455, 455 [2013]; see Chase v Scavuzzo, 87 NY2d 228, 233 [1995]; Airmont Homes v To T wn of Ramapo, 69 NY2d 901, 902 [1987]; Arroyo v Board of Educ. of City t of N.Y. Y , 110 AD3d at 20). (Continue (C ued on o pa page 26 26)
Paul De Pa Devlin SCBA B Board of Directors r
P ul De Pa Devlin se serves on o th the SC SCBA Bo Board r of o Diirections, he D h is i co c -ch chair i of o th the SC SCBA Su S u p re m e Court Co r Co Commit ittee, and n vo volunt nteers hi his ti time to t th the Suffolk Ac Su Academy of o La Law. He H ma may be b re reached at a 63 6 1760-09 76 0923.
6 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY A Plaintiff’s Primer for Medicare and Medicaid Liens By Mi M chael J. Fa F mig i lilettit
(Continue (C ued fr from fr front co cover) 42 U.S.C. § 1395y(b)(8)(A-B) puts an aff f irmative reporting obligation on the insurance carrier, r Medicare can and will seek recovery of those payments directly against the Medicare beneficiary or even the beneficiary’s ’ attorney. 42 CFR §411.24(g). Because the beneficiary and their counsel are liable to Medicare fo f r repayment, it is best to promptly notify f Medicare of the claim. This can be done by sending notification to Medicare advising of the client’s ’ name, address, date of incident, social security t number and a list of injuries along with a copy of the retainer agreement and a Medicare-compliant authorization. From there the attorney can track Medicare’s ’ “conditional payments” thier Online Portal www.cob.cms.hhs.gov/MSPRP/. Y u can review the conditional payments Yo and dispute erroneous payments directly through the portal. At settlement, you must request a Medicare final demand letter. r Medicare will review its ledger and issue a final amount due. To T request a final demand letter, r you will need to provide the amount of the settlement, the att t orney’s ’ fe f e and the att t orney’s ’ cost. Medicare is obligated to reduce the lien. Medicare’s ’ statutory lien reduction fo f rmula is articulated in 42 CFR §411.37. An easy way to think of this is to add the costs and attorney fe f e together, r and then divide by the total settlement – this will give you the percentage of the reduction of Medicare’s ’ lien. In cases were a reduction beyond the statutory reduction is needed, counsel should request an equitable reduction, prior to requesting a final demand letter. r An individual qualifies fo f r Medicaid based on their limited income and/or assets. Most Medicaid beneficiaries apply fo f r Medicaid through the New Yo Y rk State Department of Health (Health Exchange). Yo Y u should inquire with your client whether they receive Medicaid benefits, or ask if their health insurance, procured through the exchange is paid in part by the State. Yo Y ur client may or may not know the answer to this question, so best practice would be to send a notification of your personal injury case to HMS, who is contracted with New Yo Y rk State to handle third-party liability and recovery. HMS’ general number is 1-877-331-1460. MARCH 2021 EDITION
Once you file suit on behalf of a Medicaid beneficiary, y CPLR §306-c requires that notice of the commencement of an action, be served upon either the local public welfa f re social services district or the New Yo Y rk State Department of Health. This notice can be a letter but must include the Plaintiff f ’s ’ name, address and social security number, r the date of incident, and copy of the Summons and Complaint. An aff f idavit of Service of this notice must be filed with the County t Clerk’s ’ off f ice. Service of this notice gives the Department of Social Services an opportunity to serve a lien against Plaintiff f ’s ’ recovery on the commenced action. Social Services Law §104-b. This lien is not valid unless the lien is filed the County Clerk’s ’ Off f ice. Medicaid beneficiaries and their attorneys are liable to Department of Social Services fo f r fa f ilure to repay a validly serv r ed and filed Medicaid lien. Social Services Law §104-b(5)(c). Once a lien is served, the attorney should request a ledger of charges and promptly dispute any charges not related to your client’s ’ case. Certain qualified individuals can obtain a State subsidized, private insurance policy through the Health Exchange. These monthly subsidy payments are known as capitation payments. Medicaid will seek reimbursement of these capitation payments fo f r those months in which your client used the subsidized health insurance fo f r injuries claimed in your case. Consider these capitation payments as a pay-one-price, monthly unlimited use Medicaid lien. Medicaid will not seek an itemized repayment of every payment made to the beneficiary’s ’ medical providers. Y u must give notice of the settlement to Yo the Department of Social Services. Social Services Law §104-b(5)(a). The Department will then issue final lien amount. §104-b(5)( b). Medicaid does not reduce its lien fo f r attorneys’ fe f es and costs. Medicaid must reduce its lien if the Plaintiff f was not fully compensated fo f r their injury due to a limited insurance policy or liability t
issues. Arkansas Department of Health and Human Services v Ahlborn, 547 US 268 (2006). In Ahlborn, the state’s ’ recovery was limited to the percentage of its Medicaid lien equal to the percentage of Plaintiff f ’s ’ recovery compared with the full
value of her case. As such, if the Plaintiff f ’s ’ injuries are worth considerably more than the sett t lement value, an equitable reduction to the lien is in order. r Plaintiff f ’s ’ attorneys should outline their position Medicaid requesting an Ahlborn reduction including reported verdicts and settlements showing the full case value. If Medicaid is unwilling to reduce, Plaintiff f ’s ’ counsel can request an Ahlborn allocation hearing by filing an Order to Show Cause. Lugo v. Beth Isreal Medical Center, r 13 Misc, 3d 681. Finally, y you must info f rm your client that their settlement may make them ineligible f r need-based benefits from the Departfo ment of Social Services including Medicaid. All clients should sign a document indicating their understanding that their settlement may make k them ineligible to continue receiving these benefits. There are options a client can pursue to protect their eligibility ty, including establishment of a supplemental needs trust.
Michael J. Famiglietti Partner, r Rosenberg r & Gluck, LLP
Michael J. Famiglietti is a partner with Rosenberg & Gluck, LLP. P He specializes in n Plaintiff f ’s ’ personal injury lit-igation.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 7
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY Jury Selection: An Overlooked To T ol of Trial Advocacy B Lo By Loris Ze Zeppieri
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f juries were selected by a neutral third party ty, their sole endeavor would be to pick a fa f ir and unbiased panel. However, r since juries are selected by advocates f r the parties, there is a secondary goal- to fo pick a jury that will ultimately find in your f vor. fa r Yo Y u would expect jurors that have a bias towards one side or the other to reveal that bias and be eliminated by cause or peremptory challenges. So how do you eff ffectively choose between the remaining jurors - all of whom are presumed to be open towards hearing both sides and reaching a fa f ir and unbiased conclusion? Tr T ying to psycho-analyze a juror in the limited time you have in which to question them is impossible. Tr T ying to pigeon hole a juror’s ’ possible thought process using outdated stereoty t pes based on age, gender, r occupation, ethnicity ty, etc., is ineff ffective. Instead, I prefe f r to start guiding the middle of the pack jurors towards a thought process that will lead them to the conclusion that I ultimately want them to reach at the end of the case. Here are some tips on how to do so from a defe f nse attorney perspective.
MARCH 2021 EDITION
We will use the fo f llowing scenario: it is an auto accident case; hit in the rear; and plaintiff f has summary judgment on liability t . The main injury is a cervical fusion perfo f rmed 15 months aft f er the accident and you are disputing causation. The main points of your defe f nse are as fo f llows: it was a minor impact; no complaints of pain at the scene; no ER treatment; three-day gap befo f re any medical treatment; prior accident with neck complaints; 55 year old plaintiff f who is employed as a mechanic. First, I state my position very clearly as soon as I get my chance to address the panel: Hello, my name is Loris Zeppieri and I represent the defe f ndant in this case, John Smith. I sat here very quietly while plaintiff f ’s ’ counsel addressed you. That’s ’ not because I agreed with everything they said. I don’t think it would surprise you to know that I disagreed with a lot of what they said. If we agreed, we wouldn’t ’ be here. It is my position that the injuries plaintiff f alleges in this case were not caused by the accident in question. That the accident was
not a substantial fa f ctor (slight pause) in causing a significant limitation (slight pause) or a permanent consequential limitation (slight pause). Some of those words have specific legal meaning which the judge will tell you about at the end of the case. Next- start giving the jury a preview of your defe f nse without stating any specific f cts. I choose somebody to start with that fa looks like k a solid defe f nse minded juror. r Yo Y u need to know each juror’s ’ last name and address them by their last name without looking at your notes. Yo Y u have the benefit of learning their names while the plaintiff f attorney speaks. Ms. Hernandez- tell me what you think about this scenario. (C (Continue ued on o pa page 26 26)
Loris Ze Lo Zeppieri Partner Ke K lly ly, Rode & Ke K lly ly. LLP
LLo oris Ze Zeppieri is i a pa p rt r t ne r i th in the la law fi firm of o Ke Kelly, Rode & Ke Ro Kelly, LL LLP Mr Mr Ze Zeppieri ha pi h nd ndles ca cases in involving alll as in aspects of o ci civil lilitigation. Mr Mr. Ze Zeppieri is i a past Pr pa President of o th the Na NassauSuffolk Tr Su Trial La Lawyers As Association.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 9
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY
Nursing Home Negligence: Expanding the Scope of Compensable Damages Under Phl 2801-D B Ch By Christopher M. Gl Glass
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ursing home injury cases occupy their own niche in the personal injury world and are governed by a set of rules which can sometimes defy f standard negligence principles. Recently, y in a compassionate and well-reasoned decision, Justice Billings in the Supreme Court, New Yo Y rk County, y upheld a $2,500,000 pain and suff ffering award in a nursing home injury case where the injured victim was neither conscious nor aware of his suff ring fo fe f r a period of six months prior to his death. In any other injury case predicated on usual negligence principles, the absence of “cognitive awareness” of an injury would have precluded such an award. Some brief backg k round is necessary ry. Nursing homes are governed by a complex set of Federal and New Yo Y rk State regulations which prescribe minimum practices fo f r the health and well-being of nursing home residents. In New Yo Y rk, the regulations are complemented by New Yo Y rk Public Health Law 2803-c, which details the rights of residents, and Public Health Law 2801-d, which provides fo f r a private right of action against the nursing home fo f r violation of a resident’s ’ rights as those rights are enshrined in statutes, regulations , or even in the nursing home contract. Public Health Law 2801-d does not require proof of negligence. It is its own statutory cause of action. A compensable Section 2801-d violation is made out if (1) the resident suff ffered a deprivation of a right or benefit confe f rred by statute, regulation, or contract, and (2) there is an injury. T aditionally, Tr y nursing home injury claims include a negligence cause of action, a Public Health Law 2801-d cause of action, and oft f en medical malpractice, negligence per se, and breach of nursing home contract causes of action. When the injured party t dies, as is oft f en the case given the advanced age and frail condition of many of these plaintiff ffs, a wrongful death claim is included. Ye Y t, as any personal injury practitioner will tell you, if you cannot prove pecuniary loss in the wrongful death claim, the recovery on that cause of action will be largely symbolic. The inequity t in the world of nursing home litigation involving resident deaths is that they almost always occur in settings where the decedent was not supporting or providing service to any distributee; ie- where there is little or no “pecuniary” loss. The settlement and verdict value of these cases, then, is largely determined by the pain and suff ffering award. In Smith v. Northern Manhatt t an Nursing Home, Inc., the Supreme Court in New Yo Y rk County t was called upon to decide whether Section 2801-d would support a jury’s ’ pain and suff ffering award of $2,500,000 to a resident who potentially was aware of his declining condition fo f r only a day, y and then became comatose, unaware, and non-responsive fo f r the next six months up to his to his death.
The Court began its analysis by recognizing the general rule in negligence cases that “a level of cognitive awareness is a prerequisite to a recovery fo f r pain and suff ffering.” Although the decedent in Smith had no cognitive awareness fo f r the overwhelming majority t of the time fo f llowing his insult, the Court nonetheless upheld the entire pain and suff ffering award. The Court held that PHL 2801-d, by its terms, identifies as “actionable injuries” (1) physical harm to a patient; (2) death of a patient; and (3) financial loss to a patient. As a prelude to expanding the definition of compensable pain and suff ring in this setting, Justice Billings fo fe f und that these statutory injuries do not require conscious awareness of the harm. Justice Billings further off ffered that the damages recoverable fo f r these statutory injuries under PHL 2801-d “are in addition to” damages recoverable fo f r pain and suff ffering in the underlying negligence action. Because there was a violation of the Public Health Law in Smith, supra, there was “culpability t beyond mere negligence” giving the Court a mandate to achieve “a balance between injury and damages” unrestrained by the decedent’s ’ lack of cognitive awareness of his plight. Essentially, y the Court used the violation of PHL 2801-d to untether the “cognitive awareness” requirement from pain and suff ffering law. If the ruling is upheld, the implications of the case could be enormous to the assessment of damages in nursing home cases. Not only would the court be empowered to do rough justice and sustain damage awards fo f r pain and suff ffering to a fully comatose patient, but it would be no stretch to argue, fo f r example, that wrongful death awards in Section 2801-d cases should be similarly untethered from the requirement of pecuniary loss, because “death” is also listed as a compensable injury in Section 2801-d “in addition to” wrongful death damages. While that result would certainly do rough justice and overturn the current notion that it is “cheaper fo f r a defe f ndant to kill a nursing home resident to than injure the resident,” it turns New Yo Y rk’s ’ wrongful death statutes on their heads. Not surprisingly, y the decision in Smith, supra, is currently on appeal. However, r until the Appellate Division weighs in, plaintiff f attorneys would be well served to argue fo f r the scope of compensable damages under PHL 2801-d envisioned by Justice Billings.
Christopher M. Ch M Gl Glass Ass s ociate at Rappaport, t Glass s , Levi v ne & Zullo, LLP
Ch C hristopher M. Gl Glass is i an as associate at a Ra Ra p p a p o r t , Glass, Le Gl Levine & Zu Z llllo, LL LLP, wh where he h sp specialilizes in i th the field of fi o pe personal in injury ry, me medical ma m lp lpractice, and n nurs rsing ho home ne negliligence lilitigation.
10 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
PERSONAL INJURY • SPECIAL SECTION • PERSONAL INJURY
The Charge Conference: A Crucial Part of Any Trial B Pr By Prisco Va V rd rdaro r
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t the close of all evidence, and aft f er all sides have rested, the judge presiding over the trial will hold a “charge confe f rence” with counsel. This article will give a brief outline of the function of the charge confe f rence, some insight as to its importance, and some ideas about what to do in preparation. CPLR § 4110-b provides, in pertinent part, “A “ t the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party t may file written requests that the court instruct the jury on the law as set fo f rth in the requests. The court, out of the hearing of the jury, y shall info f rm counsel of its proposed action upon the requests prior to their arguments to the jury ….” The “written requests” refe f rred to in § 4110-b are commonly called “Re R quests to Charge” by counsel and the court. These are usually just a listing of the jury charges from the NY Pattern Jury Instructions (PJ P I) that an attorney would like k the court to read to the jury aft f er summations. Most attorneys simply list the sections from the PJ P I by section number along with the title of the section. Most judges will use the pattern instruction from the PJ P I, with some minor variations according to the fa f cts of the case or the judge’s ’ prefe f rence. Many judges have been charging juries fo f r many years and have “tweake k d” the patt t ern charge over the years to more clearly convey the legal concept of the particular charge to the jury. Counsel may obj b ect to deviations from the pattern charges but should be warned that even the PJ P I itself states that the charges are merely “guides.” “Tr T ial judges are free to adopt, modify fy, or rej e ect the charges, so long as they adequately convey the sum and substance of the applicable law.”1 Counsel should ke k ep in mind that jury charges are not absolutely confined to those contained within the pages of the PJ P I. Depending on the fa f cts and/or legal issues raised by a certain case, counsel can submit an appropriate jury charge to the court that is not take k n from the PJ P I at all. When doing this, counsel should be prepared to argue the legal and fa f ctual basis fo f r the requested charge. As a general rule, any charge that is requested which does not come from the PJ P I should be based upon relevant case law. To T be safe f , the requested charge itself should quote the holding of the case which counsel is relying upon. Since the court is charging the jury with the law, it stands to reason that a jury charge can be a direct quote from the case law itself. f However, r the language of the charge given to the jury, y even if it is a direct quote from a controlling case, must still be clear in its explanation of the law and how it is to be applied to the fa f cts by the jury. Most trial judges will ask fo f r counsel to submit their Re R quest to Charge Jury at the beginning of the trial. Counsel will usually have the opportunity t to submit Supplemental Re R quests should the evidence and/or circumstances warrant additional sections of the PJ PI to be requested. These submissions by counsel will be the subj b ect of the charge confe f rence along with the jury verdict questionnaire, (sometimes refe f rred to as the “jury verdict sheet”). As to the Jury Ve V rdict Questionnaire, most judges will ask plaintiff f ’s ’ counsel to submit proposed jury verdict questions to the court at the close of plaintiff f ’s ’ case. Defe f ndant’s ’ counsel can submit their own proposed jury verdict questions at the close of plaintiff f ’s ’ case as well. Some of my colleagues in the defe f nse bar take k the position that defe f ndants should not be required to submit proposed jury verdict questions. In my view, defe f ndants should always submit proMARCH 2021 EDITION
posed jury verdict questions in order to preserve obj b ections to the jury verdict questionnaire fo f r appellate review. It goes without saying that trial practice is hard work. Tr T ial attorneys spend long hours preparing their cases and sharpening their presentations of testimony and evidence to the jury. It would be a devastating situation fo f r an attorney to present a concise, powerful and eff ffective case to the jury, y only to have it undone by unfa f vorable jury charges on the law given by the court. Even worse, a powerful case presented to the jury during the trial can be sabotaged by an unfa f vorable jury verdict questionnaire. It is therefo f re imperative that the attorney prepare fo f r and conduct the charge confe f rence with every bit of eff ffort that was put into the presentation of the case to the jury. There will be many pattern charges that both you and your adversary will both request. this “overlap” of requested charges will like k ly not require argument during the charge confe f rence. However, r there will be sections of the PJ P I that your adversary requested that you did not, or that you requested that they did not. Usually there is a very good reason fo f r this discrepancy: the charges are like k ly to (Continued on page 27)
Prisco Va Pr Vardaro Partner and Senior Tr T ial Attorney e Vardaro & Ass V s ociates, LLP
Prisco Va Pr V rd rdaro r is i a pa p rt rtner and n se senio ior tr trial at attorney wiith th w the fi firm of o Va V rd rdaro r & As Associates, LL LLP He H h ha as tried me tr medical ma m lp lpractice, La L bo bor La Law and n ge general lliiabi bility ca cases fo for ov over tw twenty ye years r s.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 11
TIC, TBE, JTWROS, Alphabet Soup or Holding Title By Irwin Izen hen real property is owned by multiple parties, how title is to be held presents a worthwhile discussion to be had well befo f re the closing. With legal implications hinging on the type of ownership, fa f miliarity t with the client and or an organizational structure can prompt suggestions or trigger other ownership questions. Each ownership fo f rm is created through the use of specific language. Whether it is joint tenants with right of survivorship (JTWROS) in which the ownership of a deceased passes automatically by operation of law to the survivor or tenant in common (TIC) in which separate and distinct ownership interests are recognized, using clear language in the instrument of conveyance should not be overlooked. The “wording” on the deed of conveyance can either quickly define the intended ownership or “muddy” the waters through unintended consequences. Lucky k fo f r the transactional attorney, y when language presents a problem, there are other fa f ctors to b used in determining ownership. Plodding through “muddy” grantee language is Yo Y ur Action in the Tr T ansAction. For the transactional attorney, y those longstanding real estate clients are now dealing with generational succession (transition) and either divesting real estate holdings or reorganizing into new syndications. That original single entity t LLC fo f rmed to hold the property t amongst an original group of investors (members) is now dissolving and distributing the real estate to its members who will be f rming new and separate LLCs. As is oft fo f en the case in business evolution, partnerships dissolve and real property t once held as a single entity t LLC is now undergoing a “drop and swap” with fractional ownership interests deeded to the new entities. This is commonplace in allowing the original investor group to now own the property through multiple entities, as tenants in common. The language of conveyance should be specific and recite ownership percentages,
confirmed through recognized business records. Conveying real property t from a fo f rmerly wholly owned entity to two or more entities as tenants in common as to an undivided “%” interest ensures the real property t is titled into separate ownership interests. For the transactional attorney, y making sure as to the correct ownership percentages are reflected in this conveyance and then suggesting a TIC Agreement to govern how the property t is to now be managed and eventually distributed provides ample opportunity f r transactional billing work. Language fo reciting the ownership as “tenants in common” shows the separate and distinct ownership, but what happens when the language on the deed is not as clear? Language discrepancies are more likely to appear in the context of individual ownership. As relationships evolve, succ e s s i o n rights and other personal fa f ctors are at play in determining real property t ownership that are devoid from the “business” of real estate. One such predominant theme is succession rights. Unlike a business setting where succession to the real estate is accomplished through entity t ownership and governed by a shareholders or operating agreement, individuals can hold title and arrange fo f r a succession of ownership, upon a specific event, through specific language. The easiest of these scenarios is when ownership is between husband and wife f , as tenants by the entirety t (TBE). Ownership of this nature is specific to husband and wife f , with title passing to the survivor. r However, r today many spouses maintain their maiden names and hence ownership by a married couple, can be confusing if absent the customary “his wife f ” or “as husband and wife f ” designation. Thus, two spouses could very well be holding title, as husband and wife f , without a clear designation they are tenants by the entirety t . Furthermore, today’s ’ gender neutral prefe f rence could negate the traditional designations while recognizing the institution of marriage
and question whether title is being held as TBE. Luckily this issue was clarified by legislative action. Aft f er January 1, 1996, the statutory presumption is that a transfe f r to a husband and wife f will create a transfe f r by the entirety t . Hence, the fa f ilure to designate a transfe f r to a husband and wife f will not negate the presumption that the transfe f r was intended to create a tenancy by the entirety t . Such language oversight is commonly f und on original stock certificates fo fo f r co-op shares when married purchasers were fo f und to be using diff fferent last names. For succession in transactions not involving a husband and wife f , but resulting in the same consequences, the language “joint tenants with right or survivorship [“JTWROS”] is customarily used. Using this language implies the interest of a deceased owner passes automatically by operation of law to the joint owner. r Providing proof of death establishes ownership in the surviving joint tenant. Of course, using the proper language on a deed will prevent ownership from coming into question, but what happens when correct language is used “incorrectly” or when the verbiage is the actual problem. T o recent examples take Tw k n from recorded deeds are: 1. “ Mr. r Smith and Miss Jones as Te T nants in Common with Right of Survivorship” and 2.“ Mr. r & Mrs. Smith, as husband and wife f and Mr. r Jones as one half share joint tenants” In the first example, the parties are using two inconsistent terms. The right of survivorship is common to a joint tenancy and not a tenant in common. Could the language separate the ownership between Mr. r Smith and Miss Jones fo f r estate purposes but then why would there be a right of survivorship? In the second example, the language is like k wise confusing. Again, the designation of a “one half” interest as owned by Mr. r & Mrs. Smith together with a “one-half” interest owned by Mr. r Jones appears to separate the ownership interests as half owned by Mr. r & (Continued on page 29)
12 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
Irwin Iz Ir Izen Solo Pra r ctitioner
IIrrwin S. S Iz Izen, is i a so solo pr practitioner, co ti concentrating on o real es re estate, bu business and n trans tr nsactional la law. Reach him at Izenlaw@aol.com.
MARCH 2021 EDITION
IRS Relief for Ta T xpayers Facing COVID-19 Financial Struggles By Ka K ren Te T nenbaum, Esq., LL.M. (Ta T x), CPA P of Te T nenbaum Law
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ast year, r the IRS instituted several measures to aid taxpayers struggling to pay their taxes as a consequence of COVID-19. Since most of those expired in the fa f ll, the IRS made additional changes in November providing expanded payment options and other relief. f These are important because there are provisions covering taxpayers with new tax issues as well as those with an existing payment plan.
Installment Agreement Relief
Online access for Direct Debit Installment Agreements Qualified taxpayers may now be able to use the Online Payment Agreement system to propose lower monthly payment amounts and change their payment due dates.
Automatic addition of certain new tax year balances For individuals and out of business entities, the IRS will automatically include certain new tax year balances to existing Installment Agreements so these taxpayers can avoid defa f ult of the agreement.
Installment agreements (IAs) allow taxpayers to pay their tax debts over time. There are several diff fferent ty t pes of IAs each with Offers in Compromise its own rules. Changes made by the IRS include the fo f llowing: An Off ffer in Compromise (OIC) allows taxpayers to settle their tax debts fo f r less than the full amount owed. The financial struggles Extended time to pay many taxpayers are now fa f cing may make this an ideal time to subT xpayers with short-term payment plans have been granted 180 mit an OIC. Further, Ta r the IRS has indicated it is willing to work with days to pay instead of 120 days. taxpayers unable to meet the terms of their existing OIC due to COVID-related economic hardship. However, r with any OIC, it is imSimplified Installment Agreement process portant to prepare appropriate financial documentation because the Individuals who owe less than $250,000 may be able to set up (Continued on page 26) Installment Agreements without providing the usual financial documentation if their monthly payment proposal is suff f icient and has LL.M (Ta T x) x CPA P not yet been assigned to a revenue off f icer. r
Karen Te Ka Tenenbaum ES ESQ.
Modified qualifications for Installment Agreements For individuals who were notified of taxes owed with liabilities up to $250,000 fo f r Ta T x Ye Y ar 2019 only, y the IRS can off ffer one Installment Agreement opportunity t with no lien filed.
MARCH 2021 EDITION
K re Ka ren Te Tenenba b um, m Es Esq.,. is i Fo Found nder and n Ma M na nagin ing Pa P rt rtner oof Te Tenenba b um La Law, P C. C (w (www.lilitaxattorney.co com), a ta tax la law fifirm in i Me Melville, N.Y Y , wh which fo focuses itits pr practice on o th the re resolution of lu o IR IRS and n Ne New Yo York St State ta tax co controversies. Ka K re ren c n be ca b re reached at a kt ktenenba baum@ m@litaxattorney.co com and n at a 63 6 1465-50 46 5000.
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Condolences
14 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
Converting Yo Y ur Paper Case to E-file
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t goes without saying that the Covid-19 pandemic has changed how business and government services are provided and how those organizations operate. We have all been forced to make more effective and widespread use of technology. It was more than just about survival. As Clerk of the Supreme and County Courts, recorder of land title documents and Records Management Officer of Suffolk County, it was about meeting my Constitutional and legal duties to maintain and provide access to those documents. Since 2013, the Court and I have actively implemented and expanded electronic filing of Supreme Court cases through the New Y rk State Courts Electronic Filing system Yo (“NYSCEF”). Through May, y 2020, Suff ffolk County was a mandatory electronic filing ( E-file”) (“ ” Court fo f r all cases except fo f r: CPLR Art. 70 and 78, Election Law, Mental Hygiene Law, Matrimonial, Emergency Medical T eatment, Name Change and Civil Forfe Tr f iture. Those case types all became Consensual/Vo V luntary E-file on June 1, 2020 pursuant to Administrative Order AO/116/20. More importantly, y that AO made all case t pes that are not mandatory or mandatory ty in part consensual. As of this writing, all case types that can be filed in Suff ffolk County t Supreme Court may or must be Efiled. Throughout the pandemic and until the rescission of the tolling of various time periods by Executive Order on November 4, 2020, attorneys were required to file all court documents electronically with limited exceptions. Working copies were prohibited. That particular restriction remains. In order to fa f cilitate the E-filing of documents, the Off f ice of Court Administration, implemented the Electronic Document Delivery System (“EDDS”) fo f r use throughout the Unified Court System as a means to limit fo f ot traff f ic in all courthouses. Already extensive MARCH 2021 EDITION
use of NYSCEF in Suff ffolk and throughout the State made EDDS unnecessary fo f r Supreme Court filings. The issue became converting all of the pending paper cases to E-filing. EDDS was then modified in Supreme Court to function solely as the mechanism fo f r submission of requests to the Courts and County t Clerks fo f r conversion of cases to electronic filing.
Suff ffolk County developed a protocol based upon the requirements of Rule 202.5b(b)(2)(iv) which permits conversion by Court order or stipulation of the parties. Stipulations to convert have been ongoing fo f r years but on a very small scale. Conversion orders have been even less so. However, r with the imposition of the electronic filing
(Continue (C ued on o pa page 28 28)
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 15
Black History Month Celebrated by the Suffolk County Courts, The Amistad Long Island Black Bar Association and the Suffolk County Bar Association By Jane LaCova
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n Wednesday, y February 24th, 2021 Black History Month’s ’ program, was hosted by Suff ffolk’s ’ District Administrative Judge, the Honorable Andrew A. Crecca in collaboration with the Amistad Long Island Black Bar and the Suff ffolk County t Bar Associations via Microsoft f Te T ams. The ceremony’s ’ theme, “The Black Fa F mily: Re R presentation, Identity t and Diversity t ” distinguished the crucial role of fa f mily in the rich tapestry of African American’s ’ past and present. As a part of that tapestry, y the program speake k rs honored a trailblazer’s ’ legacy in Suff ffolk County t ’s ’ legal community ty, the Honorable Marquette L. Floyd, Justice of the Supreme Court, 10th Judicial District. Justice Floyd, a man of dignity t and perseverance, was the first African American elected to Suff ffolk County District Court Bench where he served fo f r nineteen years and was elected to the Supreme Court Bench, also serving as Presiding Justice of the Appellate Te T rm f r the 10th Judicial District. Justice Floyd left fo f a legacy that will never be fo f rgotten. During the celebration, the Honorable Cheryl A. Joseph, NYS Court of Claims Judge and the Supervising Judge of the Supreme Court Matrimonial Parts, received this year’s ’ Hon. Marquett t e L. Floyd Achievement Award which was presented to her by Justice Crecca. The 2020 Milton Mollen Commitment to Excellence Award was presented to Ode Jean-Claude, a Senior LA L N Administrator in the IT Department. Ode is a devoted court employee who has always strived fo f r excellence and has demonstrated meritorious service and a devotion to the judicial process and the public.
A ard recipients Honorable Chery Aw r l A. Joseph and Ode Jean-Claude
16 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
Trusts and Estates Update B Il By Ilene Sh Sherwyn Co Cooper
Constructive Trust In In re To T ng, the Surrogate’s ’ Court, New Y rk County Yo t addressed whether a constructive trust should be imposed on the assets held in a broke k rage account. The discovery proceeding befo f re the court was commenced by one of the decedent’s ’ two sons, the limited administrator of the estate, against his brother. r Notably, y in an earlier decision, the court dismissed a portion of the petition, without prej e udice, which sought the recovery of an IRA R fo f r lack of subj b ect matter jurisdiction. The court observed that a constructive trust is comprised of fo f ur elements: a confidential relationship, a promise, which may be implied, a transfe f r made in reliance on that promise, and unjust enrichment. On the issue of confidential relationship, the court noted that a mother-son relationship does not constitute a confidential relationship in and of itself, f nor does one party t ’s ’ dependence on another because of physical limitations. To T this extent, the court fo f und that while the decedent depended on the respondent fo f r purchasing her fo f od and medications, and fo f r other household chores, it was insuff f icient to establish that she depended
MARCH 2021 EDITION
on him in other respects or that she was sus- living expenses, and did not require the asceptible to his control. Indeed, the testimony sets of the subj b ect broke k rage account to do indicated that the decedent had a laptop so. Accordingly, y in view of the fo f regoing, the which she used frequently to trading stocks, court denied the relief requested in the petiand that she was capable of living on her tion. own. In re To T ng, NYLJ, Oct. 19, 2020, at 22 The court observed that a construc- (Sur. r Ct. New Yo Y rk County t ). tive trust is comprised of four elements: a confidential relationship, a Eviction promise, which may be implied, a In a contested accounting proceeding betransfer made in reliance on that fo f re the Surrogate’s ’ Court, Bronx County ty, in promise, and unjust enrichment. In re Jenkins, the petitioner requested leave, On the issue of reliance on a promise, the pursuant to SCPA 1902, to sell the dececourt noted that the petitioner needed to dent’s ’ interest in a parcel of realty, y and to show, at a minimum, that the respondent ei- ej e ect decedent’s ’ grandson from the property t. ther promised or had an implicit agreement The application was supported by the two of or understanding with his mother that she the decedent’s ’ granddaughters. However, r it would retain control of her investment ac- was opposed by the decedent’s ’ grandson, count aft f er the account transfe f r, r or would who stated that he wished to buy the realty ty, have access to the funds, and that such ac- but fo f r a price less than the contract price. cess would devolve upon her estate. How- The court noted that courts have liberally ever, r the court concluded that unlike the granted SCPA P 1902 (1), (6) and (7) applicacircumstances in Sharp v Ko K smalski , where tions to sell realty over the obj b ections of the court implied a promise based on the some of the co-tenants in common who deplaintiff f ’s ’ continued need of the transfe f rred rived their interest in the realty from the asset to sustain herself, f the decedent had decedent, provided that there is a suff f icient ample funds and resources, principally nexus between the relief requested and the through the assets of the IRA R , to satisfy f her (Continue (C ued on o pa page 27 27)
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REAL ESTATE DEVELOPMENT Recent Land Use, Zoning, and Environmental Real Estate Decisions B Ja By Jason St St e r n
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s shown in our previous columns, clients can fa f ce a variety t of real estate development issues, the answers to which depend on land use, zoning, environmental, and municipal laws, rules, and regulations, which vary among the counties, towns, villages, and cities across Long Island and New Yo Y rk State. However, r there are certain overarching legal principles that guide these answers and this column reviews recent court decisions on such principles to give practitioners a framework fo f r understanding the issues and how the courts address them, with an emphasis on decisions from the Appellate Division, Second Department:
Plaintiff f had “constructive notice” of Breakers intended restaurant use since at least 2010, when there was a public hearing on Breakers site plan application showing the restaurant. Thus, the Second Department held plaintiff f ’s ’ instant action, commenced over five (5) years later and predicated on a 2005 CO, as “untimely” and properly dismissed.
Site Plan for Large Gas Station Canopy Denied as Inconsistent with Area’s “Visual Character”
In Empire Import-Export of USA, Inc. v. To T wn of East Hampton Planning Board, 186 A.D.2d 1364 (2d Dep’t ’ 2020), petitioner applied Historical Aerial Photographs Fail to Disprove to the To T wn of East Hampton Planning Board (“Planning Board”) fo f r Pre-Existing Nonconforming Use site plan approval fo f r the installation of a large canopy at petitioner’s ’ In Labate v. Dechance, 189 A.D.3d 838 (2d Dep’t ’ 2020), a private gas station in the hamlet of Montauk, which the Planning Board dewater supply company sold real property used fo f r construction nied. Petitioner commenced an Article 78 proceeding against the equipment storage since 1947 to petitioner-construction company Planning Board in the Supreme Court, Suff ffolk County t (Hon. William (“Petitioner”) in 2001. Such use had been prohibited by amend- G. Ford), which was dismissed. ments to the To T wn of Brookhaven (“To T wn”) ” Zoning Code aft f er 1947, 7 but was permitted to continue at the property t as a lawful pre-existing nonconfo f rming use. Petitioner applied to the To T wn fo f r a certificate of existing use to continue such equipment storage, which the T wn Zoning Board of Appeals (“ZBA” To A ) denied on the ground Petitioner fa f iled to prove the nonconfo f rming use “existed without interruption since its inception.” Petitioner commenced an Article 78 proceeding against the ZBA in the Supreme Court, Suff ffolk County t (Hon. Joseph A. Santorelli), which dismissed the Article 78; on appeal, the Second Department reversed. Petitioner submitted evidence of continuous use of the property t fo f r equipment storage since 1947; and the To T wn submitt t ed 3 aerial photographs of the property from 1962, 1984, and 2001 showing no such equipment and claimed the pre-existing use had been abandoned. The Second Department fo f und the To T wn fa f iled to demonstrate On appeal, the Second Department set fo f rth the appropriate stanan abandonment of the pre-existing use based on To T wn Code (§ 85- dard of review: a “local planning board has broad discretion in de883(A)(6)), which provides pre-existing uses are abandoned based ciding applications fo f r site plan approvals and judicial review is on “discontinuance of any nonconfo f rming use fo f r a period fo f r one limited to determining whether the board’s ’ action was illegal, arbiyear or more.” The Second Department held the 3 photographs trary and capricious, or an abuse of discretion.” “fa f iled to demonstrate a one-year cessation in storage activity t on The Second Department fo f und that given the “size and scale” of the property t .” Thus, the Second Department directed the ZBA to the proposed canopy, y the Planning Board “properly considered issue the requested certificate of existing use to Petitioner. r whether the proposed proj o ect was consistent with the use of surrounding properties and whether it would bring about a noticeable Challenge to Building Permit Untimely Where Plaintiff change in the visual character of the area.” Thus, the dismissal of Had “Constructive Notice” of Restaurant Use for 5 Ye Y ars the Article 78 proceeding was aff f irmed. In Jane H. Concannon Re R vocable Tr T ust v. Building Dept. of the As these decisions continue to demonstrate, practitioners should T wn of East Hampton, 189 A.D.3d 804 (2d Dep’t To ’ 2020), plaintiff f be fa f miliar with the overarching legal principles governing real estate owned property t adjacent to the Breake k rs Motel in Montauk (“Break- development in New Yo Y rk, as well as the applicable local land use, ers”) in the To T wn of East Hampton (“To T wn”) and commenced a hy- zoning, environmental, and municipal laws, rules, and regulations brid Article 78 proceeding to enjoin Breakers from operating a in rendering advice on these issues. restaurant, based on a 2005 certificate of occupancy (“CO”) and a Jason A. Ja A St Stern 2015 building permit. Plaintiff f had applied to the To T wn Zoning Board Par tner an Pa and Di Director of o Li Litigation, We Weber La Law Gr Group, LL LLP of Appeals (“ZBA” A ) to rescind the building permit as improperly allowing a restaurant use at the property t without an additional special J son A. St Ja Stern is i a partn t er and Dir i ecto t r of Litig i ation at W We ber Law G Gr r o u up , LLP, P which permit, which application the ZBA denied. f cuses on Co fo C mmerc r ial Re R al Es E ta t te t , Land Us U e, The Supreme Court, Suff ffolk County t (Hon. Martha L. Luft f ), disZ nin Zo ing , Governmen e t Re R lations, En E vir ironmenta t l Law missed the proceeding and, on appeal, the Second Department afand Co C mple lex Litig i ation. Mr Mr. St Stern can be reached firmed. The Second Department held the ZBA properly fo f und at 63 631-54 5 9-2 - 000 and js j te t rn@weberl r awg w ro r up u .com 17a THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org MARCH 2021 EDITION
Debate Over Labor Protections For App-Based Drivers Shifts To New York After Prop 22 By Matthew DeLuca and Mark Cuthbertson
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ver since app-based companies like Uber and Lyft rose to prominence, there has been a fierce battle over whether their drivers are employees or independent contractors. App-based companies insist that their unique relationship with their drivers justifies treating them as independent contractors, noting that while users register to work as drivers through the company’s app, they retain the right to set their own schedules and use their own vehicles. However, numerous labor groups and state legislatures have challenged this view, noting that drivers must comply with certain policies and regulations as a condition to using the app. The result is these drivers have characteristics of both employees and independent contractors, without neatly fitting into either category. This is a significant issue, as employees receive greater wages, benefits, and labor protections than independent contractors. California has historically led the charge on providing greater labor protections to app-based drivers, most notably by passing Assembly Bill 5 ("AB 5"), a law that would have required app-based companies to categorize their drivers as employees and provide higher wages and benefits under the state’s wage order. Arguing that this would be devastating to their business model and force them to stop operating in the state, app-based companies Uber, Lyft, DoorDash funded a ballot initiative, Proposition 22 (“Prop 22”) to overturn AB 5 and create a new set of wage and benefit rules specifically for app-based drivers. The companies spent nearly $200 million supporting Prop 22, which ultimately passed by a 58-41 margin. The passage of Prop 22 allowed appbased companies to turn the tables on California in the fight over worker classification, and they have since shifted their efforts to passing similar laws in other states. However, a recent decision by New York’s Appellate Division, Third Department, suggests that while app-based companies won the battle over AB 5, they still have a long way to go to win the war on worker classification.
in April 2018, the Court held that to classify a worker as an independent contractor outside the scope of the state’s wage order, the hiring entity must establish: “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” This standard, known as the “ABC” test, would likely result in most app-based drivers being classified as employees. After the decision in Dynamex, the California Legislature quickly codified the ABC test in AB 5, which was signed into law in September 2019. However, AB 5 also went significantly further than Dynamex in two key respects. First, where Dynamex was limited to the wage and hour context, AB 5 applied the law to all benefits under the state’s Unemployment Insurance Code, Labor Law, and any applicable wage orders. Second, AB 5 empowered the state’s attorney general, district attorney, and certain other prosecutors to seek injunctive relief against companies that misclassify employees as independent contractors. Once AB 5 passed, the California Attorney General promptly filed suit against Uber and Lyft, alleging that they misclassified their drivers as independent contractors. On August 10, 2020, Judge Ethan Schulman granted the State’s request for preliminary injunction preventing Uber and Lyft from classifying their workers as independent contractors, finding that the State had a high likelihood of success on their claim that Uber and Lyft’s drivers were employees and subject to the state’s wage order under AB 5. This decision was upheld on appeal on October 22, 2020, with a stay set to lapse 30 days after the decision on November 22, 2020.
California Takes The Lead
App-Based Companies Fight Back
The recent struggle over extending employee protections to app-based drivers is rooted in the California Supreme Court decision Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). Decided
While Uber and Lyft vigorously opposed the State’s position in the lawsuit, this was only one aspect of their response to AB 5. On August 30, 2019, Uber, Lyft, and DoorDash each pledged $30 million to fund a bal-
lot initiative to keep their drivers classified as independent contractors. This initiative also proposed a new category of wage and labor protections for appbased drivers, including a minimum wage, health insurance subsidies for employees that average sufficient hours per week over a three-month period, and accident insurance coverage. Prop 22 also restricted local regulations of app-based drivers, so that municipalities could not circumvent Prop 22. Prop 22 was fiercely opposed by an array of lawmakers and unions, while receiving support from business groups, law enforcement organizations, and most app-based drivers themselves. Ultimately, Prop 22 passed by a larger-than-expected 58-41 margin, dealing a major blow to efforts to grant more stringent labor protections to app-based drivers. It will also be extremely difficult for the California Legislature to amend Prop 22, as the ballot initiative text requires that any legislative changes receive a 7/8th majority vote and be “consistent” with Prop 22’s intent. Incredibly, this super-majority requirement is actually a concession by app-based companies to the potential need for legislative fixes, as the default rule is that a ballot initiative can only be amended by another ballot initiative.
Pro-Labor Lawmakers Left Reeling The strong support for Prop 22 by voters in California is significant because AB 5 had been viewed as model for other states, including New York, that have been considering greater labor protections for app-based drivers. AB 5 was similarly viewed at the federal level, as the U.S. House of Representatives actually passed a bill to apply the ABC test nationally. However, with the passage of Prop 22 in California, lawmakers are now being forced to re-examine the level of public support for such bills. Conversely, app-based companies are openly pushing for a similar model in other states. During Uber’s November 5, 2020 earnings call, Uber CEO Dara Khosrowshahi indicated that going forward, Uber will “more loudly advocate for new laws like Prop 22,” while DoorDash CEO Tony Xu stated that his company was ready to “champion new benefits structures that are portable, proportional, and flexible.”
(Continued on page 30)
MARCH 2021 EDITION www.scba.org • The Official Publication of the Suffolk County Bar Association • THE SUFFOLK LAWYER 17b
Pro Bono Warriors Recognized
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n behalf of the Nassau/Suff ffolk Law Services and the SC Bar Pro Bono Foundation, we acknowledge and express our gratitude to Pro Bono At Attorneys fo f r their significant assistance to the needy members of our Suff ffolk community t . Each of you have made a diff fference in the life f of someone in need. Yo Y u should all know that what you have accomplished profo f undly impacts the lives you have touched.
PRO BONO PROJECT VOLUNTEERS Jodi Ann Donato Leif Rubinstein and the Touro Bankruptcy Clinic Jeff f rey A. Adolph
Y ur eff Yo fforts on behalf of the low-income residents of Suff ffolk County t can make a positive diff fference! If you would like k to join the list please contact Carolyn McQuade, Esq., Suff lk Pro Bono Coordinator, fo r at 631 232-2400 ext. 3325 or cmcquade@nsls.legal. Please support the SC Bar Pro Bono Foundation and Nassau/Suff ffolk Law Services in its mission of providing free civil legal assistance and guidance to others in their time of need.
Pro Bono At A torney of the Month
Donald R. Sallah
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he Suff ffolk Pro Bono Proj o ect is extremely pleased to honor Donald R. Sallah as Pro Bono At A torney of the Month. Mr. r Sallah has provided outstanding pro bono services to many of our matrimonial clients fo f r almost thirty t years. Although he’s ’ been the recipient of this award in the past several times, Mr. r Sallah’s ’ persevering fo f rtitude and spectacular eff fforts on behalf of the Suff ffolk Pro Bono Proj o ect’s ’ clients has earned him this distinction once more. Mr. r Sallah received his B.A. from Adelphi University t in 1967. He attended law school at St. John’s ’ University t School of Law as a night student, and obtained his J.D. in 1972. Mr. r Sallah has the practice of law in his blood, he is the son of a lawyer. r His fa f mily lived in Nassau County t while he was growing up and his f ther had a solo general practice in Hempfa stead. Mr. r Sallah began his legal career as an Assistant District Attorney in Hauppauge. In 1975, he started his own firm, The Sallah Law Firm, in Holtsville, where he continues to practice today. The firm’s ’ concentration has been matrimonial and fa f mily law since 1980. Mr. r Sallah has six children and Mr. r Sallah’s ’ love of his profe f ssion has been inherited by many of them. Half of his children are already lawyers and there is a lawyer on the way. Mr. r Sallah’s ’ daughter, r Savannah, is a second year law student at his alma mater, r St. John’s ’ Law School. His daughter, r Danielle, is an SEC attorney in Manhattan. Mr. r Sallah’s ’ son, Donnie, is the law secretary to the Honorable George F Harkin in Riverhead Fa F. F mily Court. Dean, another son, is a now a partner in the Sallah firm aft f er having joined the practice in 1996. His son, Vincent, is a corrections off f icer in Florida. His daughter, r Brittany, y works fo f r a car dealership. Over the past seven years, Mr. r Sallah perfo f rmed 400 hours of pro bono work fo f r ten diff fferent divorce clients. These are clearly some of more complicated cases in that the vast majority t of our pro bono matrimonials do not expend an average of 40 hours of att t orney time per case. However, r Mr. r Sallah has been willing to take on some of our more complicated cases and does not shy away from doing a trial when needed. Mr. r Sallah has also engaged in motion practice f r our clients, including motions fo fo f r legal fe f es on occasion. By definition our clients have very limited resources so generally the cases are fa f irly routine. Each of our clients must provide documentary evidence of their indigency. However, r in our domestic violence cases there is sometimes a “monied spouse” who denies our
clients access to their rightful share of the marital resources. As such, there is a silver-lining to some of our matrimonial cases in that, in addition to obtaining CLE credit and a voucher from the Pro Bono Proj o ect as all pro bono attorneys do, if there is a spouse with suff f icient income, attorneys in some divorce cases may move fo f r pendente lite relief to obtain reimbursement of their legal fe f es . Another way to obtain fe f es, is in conjunction with a contempt motion. Mr. r Sallah recently moved fo f r contempt fo f r one of our clients whose f rmer spouse refused to comply with various provisions of Courtfo ordered divorce judgment. These motions can be a true win-win in that our clients’ obstinate fo f rmer spouses are fo f rced to pay what our clients are owed and the attorney who moves fo f r this relief can also obtain their fe f es f r the work of getting justice done. fo Even in the best of circumstances it is extremely diff f icult to predict how much time any one case will consume. On occasion, cases that seem simple at the outset are more time-consuming than we anticipate. That is why we have Profe f ssor Lewis Silverman meet with each of our divorce clients and prepare a memorandum relating to the issues of every r divorce case. Many know the Profe f ssor from his time as a Judge and/or his time as a Profe f ssor running the Family Law Clinic at T uro. Since his “partial retirement” several years ago , Profe To f ssor Silverman has generously donated his time and expertise on a weekly basis to the Pro Bono Proj o ect to provide this service. As previously mentioned, Mr. r Sallah’s ’ normal practice involves a substantial amount of trial work. It is the trial work that Mr. r Sallah has been missing during these days of pandemic. He has tried cases in all five 5 boroughs of New Yo Y rk City ty, seven upstate counties, New Jersey, y Connecticut, Florida, South Carolina, and Michigan. As compared to these other regions off f Long Island, Mr. r Sallah describes the Long Island matrimonial bar as “top shelf. f ” When aske k d how he f els about the present state of his practice, Mr. fe r Sallah responded, “It’s ’ a pleasure doing matrimonial law on Long Island. Everyone in the system, from the attorneys, to the judges, to the court clerks, is so friendly and so good at what they do.” Mr. r Sallah’s ’ history r of community t serv r ice is not limited to pro bono legal representation. He also has lectured numerous times fo f r the Suff ffolk County t Academy of Law on a variety t of topics pertaining to (Continue (C ued on o pa page 29 29)
18 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
Decisions of Interest B El By Elain ine Co Colavito Suffolk County Supreme Court Honorable James F. Matthews
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otion fo f r summary judgment granted; plaintiff f did not off ffer proof in admissible fform to rebut defe f ndant’s ’ proof In First National Bank of OMAHA, a Subsidiary of First National of Nebraska, Inc. v. Adam Cohen Peter Helfrich, Index No.: 611062/2017, decided on November 16, 2020, the court granted defe f ndant, Helfrich’s ’ motion fo f r summary judgment. In rendering its decision, the court noted that the credited the Helfrich aff f idavit regarding his telephone contact with the plaintiff f and that the credit accounts in issue had a zero balance at the time and that he terminated his account and personal guarantee with plaintiff ff. Plaintiff f did not off ffer proof in admissible fo f rm to rebut defe f ndant’s ’ proof. f Accordingly, y the motion was granted. Motion fo f r summary judgment granted; clause constituted a consent to submit “any f e dispute issues” to arbitration; plaintiff fe f was barred from bringing plenary action In Law Off f ice of Lisa S. Fine, P. P C. v. Caroline Menafra-Mule, Index No.: 623822/2019, decided on November 12, 2020, the court granted defe f ndant’s ’ motion fo f r summary judgment. In rendering its decision, the court noted that plaintiff f submitt t ed the retainer agreement executed by both parties. Page 5 of t eh retainer agreement contained an arbitration clause, whereby, y it stated, “pursuant to 22 NYCRR §137, 7 the client hereby consents in advance by signing this retainer to submit all fe f e disputes to arbitration administered by the Suff ffolk County t Bar Association. The off f icial written instructions and procedures fo f r Part 137 are provided under separate cover, r upon request. Both client and attorney herby consent to this final and binding arbitration to resolve any fe f e dispute issues and knowingly and intelligently waive their respective rights to a trial de novo review of the arbitration decision and award by a court of competent jurisdiction. This is a specific waiver wherein you and I fo f rego our respective rights to rej e ect an arbitration award and commence a “new” trial in a court of competent jurisdiction.” Since the clause constituted a consent to submit “any fe f e dispute issues” to arbitration, plaintiff f was barred from bringing this plenary action. The court continued and stated that by the express terms of the retainer, r plaintiff f bound itself to submit the fe f e claims alleged in the complaint to arbitration. Accordingly, y the complaint was dismissed. Motion to resettle a prior order denied; order did not constitute a determination that substantially aff ffected the rights of the deceased defe f ndant In PA P LJR, LLC d/b/a East Neck Nursing and rehabilitation center v. Joan Bogart and Donna Kurdzos, Index No.: 7631/2015, decided on September 11, 2020, the court denied the motion pursuant to CPLR §5019(a) to resettle a prior order of the Supreme Court transfe f rring this action to this court pursuant to CPLR §325(d). In rendering its decision, the court noted that as the result of the death of a party ty, the court lacke k d jurisdiction to make determinations against the deceased party t . There was no stay as to any other parties. In any event, here, no substantiative determinations were in fa f ct made against the deceased party t . The order that defe f ndants’ counsel complains of was the order of Justice R illy dated May 1, 2019 transfe Re f rring the action to County t Court. Such order did not constitute a determination that substantially aff ffected the rights of the deceased defe f ndant. The calendaring of a case and the conduct of confe f rences with the court are activities that are not prohibited by the death of one of the parties. The only substantiative determination made in this action was the granting of plaintiff f ’s ’ motion fo f r summary judgment only against the surviving defe f ndant DONNA KURDZOS, against whom the action was not stayed as explicitly set fo f rth in CPLR §1015(d). That order was dated January 7, 7 2020. Defe f ndants’ vigorously opposed said motion and cross-moved. If defe f ndants believed that this court lacked authority t to enter the January 7, 7 2020 order of that the court in any way erred, then defe f ndants’ remedy was to appeal that order. r Moreover, r the court continued and stated, if defe f ndant obj b ected to Justice Re R illy’s ’ May 1, 2019 order, r the remedy is also to appeal that order. r Summary judgment in lieu of a complaint to renew a judgment fo f r an additional twenty t -year period as against defe f ndant Vitolo granted; Executive Order 202.55, issued on August 6, 2020, which extended prior orders, extended the statute of limitations on civil actions to and including September 4, 2020 In William Siegfried v. Louis Vitolo and Jay Hewson, now known as Jason Hewston, Index No.: 606695/2020, decided on December 11, 2020, the court granted summary judgment in lieu of a complaint to renew a judgment fo f r an additional twenty t -year period as against defe f ndant Vitolo. Here, plaintiff f sought to renew a judgment filed on May 10, 2000 against defe f ndants fo f r an additional twenty-year period as permitted by CPLR §5014(1). The court noted that such relief is permitted provided an action is commenced within twenty t years of the filing of the judgment sought to be renewed. Both defe f ndants argued that plaintiff f fa f iled to commence the action within the applicable twenty-year statute of limitations. However, r the court noted that bv Executive Order 202.55, issued on August 6, 2020, which extended prior orders, the statute of limitations on civil actions was extended to and including September 4, 2020. Plaintiff f submitted proof of valid personal service on defe f ndant Vitolo on August 31, 2020, within the time period allowed by virtue of the executive order. r Accordingly, y the court fo f und no merit to Vitolo’s ’ defe f nse on this basis and fo f und that the action was timely commenced.
Honorable Denise F. Molia
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otion pursuant to CPLR §3408 fo f r an order setting the matter down fo f r a hearing to determine if plaintiff f demonstrated bad fa f ith fo f r its fa f ilure to negotiate in good f ith during settlement process pursuant to Banking Law granted; submissions fa raised a triable issue of fa f ct as to whether the plaintiff f negotiated in good fa f ith and whether Lam was deprived of a meaningful opportunity t to resolve the action through the loan modification process or other potential working options In Wells Fargo Bank, N.A., as Tr T ustee fo f r the Certificate holders of the BSSP Tr T ust 2007-EMX1, Mortgage-Backed Notes, Series 2007-EMX1 v. Joseph Marchisello, Ta T bitha
MARCH 2021 EDITION
Lam, Slomins, Inc., Portfo f lio Re R covery Associates LLC, capital One Bank USA NA, New Y rk State Department of Ta Yo T xation and Finance, Clerk of the Suff ffolk County t District Court, Cypress Financial recoveries LLC, Cach LLC, Clerk of the Suff ffolk County t Tr T aff f ic & Parking Violations Agency, y and ‘John Doe #1” through “John Doe #10, the last ten names being fictitious and unknown to the plaintiff ff, the person or parties intended being the persons or parties, if any, y having or claiming an interest or lien upon the mortgages premises described in the Complaint, Index No.: 604280/2015, decided on November 23, 2020, the court granted the motion by defe f ndant, Ta T bitha Lam pursuant to CPLR §3408, fo f r an order setting the matter down fo f r a hearing to determine if plaintiff f demonstrated bad fa f ith fo f r its fa f ilure to negotiate in good fa f ith during settlement process pursuant to Banking Law. In rendering its decision, the court stated that defe f ndant Ta T bitha Lam remained in title to the subj b ect premises, previously as a tenant by the entirety t and now as the sole fe f e tenant as the surviving spouse of Joseph Marchisello, who died on March 5, 2011. As a borrower and fe f e owner, r Lam was entitled to be considered fo f r a loan modification irrespective of the fa f ct that she was not an obligor on the note. Plaintiff f contended that Lam must first assume the mortgage prior to being considered fo f r the modification. The court noted that CPLR §3408(f)(2) incorporates by refe f rence all state and fe f deral laws concerning loan servicing and modification process. Federal and New Yo Y rk state laws specifically prohibits the practice of dual tracking, i.e., the prosecution of a fo f reclosure action to sale while a loan modification is still “open”. The court fo f und that CPLR §3408(a)(2)(i) entitled Lam to protection of the rule, even where she was not identified as borrower on the mortgage instrument. In granting the motion, the court fo f und that defe f ndant established that the plaintiff f had breached the Superintendent’s ’ regulations by the pre-rej e ection of her loan modification application. Since the defe f ndant’s ’ submissions raised a triable issue of fa f ct as to whether the plaintiff f negotiated in good fa f ith and whether Lam was deprived of a meaningful opportunity t to resolve the action through the loan modification process or other potential working options, a hearing was scheduled.
Honorable Martha L. Luft
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otion fo f r leave to enter a defa f ult judgment denied; document titled “bill of particulars” seeking $15,000.00 from defe f ndants submitted; plaintiff f fa f iled to attach complaint with fa f cts constituting his claim In Barry Va V llen v. Re R ggie Andre and FTA T Art, Index No.: 305/2016, decided on January 5, 2020, the court denied plaintiff f ’s ’ motion fo f r leave to enter a defa f ult judgment. Plaintiff f averred that he served defe f ndants three times and that they fa f iled to answer the complaint. Plaintiff f filed a motion fo f r leave to enter a defa f ult judgment. Plaintiff f also submitt t ed a document titled “bill of particulars” seeking $15,000.00 from defe f ndants. As plaintiff f f iled to attach a complaint with fa fa f cts constituting his claim to the motion papers, he f iled to meet his burden. The court also noted that the amount demanded by plaintiff fa f was within the discretion of the County t Court. Accordingly, y the motion was denied.
Honorable Robert F. Quinlan
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otion to vacate the verdict of the jury and the court’s ’ order of July 10, 2019, pursuant to CPLR §5015(a)(5); in light of the vacatur, r defe f ndants’ application to renew its prior motion to set aside the verdict and fo f r a new trial pursuant to CPLR §4401 and CPLR §4404 (a) granted; upon renewal, motion to set aside the verdict and grant a new trial granted In Ro R dney Elam v. Penske Corporation, Penske Tr T uck Re R ntal and Penske k Tr T uck Leasing, Index No.: 16269/2014, decided on February 21, 2020, the court granted the motion to vacate the verdict of the jury and the court’s ’ order of July 10, 2019, pursuant to CPLR §5015(a)(5). In light of the vacatur, r granted defe f ndants’ application to renew its prior motion to set aside the verdict and fo f r a new trial pursuant to CPLR §4401 and CPLR §4404 (a) and upon renewal, granted the motion to set aside the verdict and grant a new trial. The court’s ’ July 26, 2018 motion fo f r summary judgment dismissing the action and granted plaintiff f ’s ’ cross-motion fo f r partial summary judgment on the issue of liability t determining that the accident was the result of the negligence of defe f ndants as the defe f ctive lift f gate of defe f ndants’ truck “fe f ll precipitously causing him [plaintiff f ] to fa f ll.” Defe f ndants filed an appeal of that order and moved to stay the trial pending the appeal, but their application fo f r a stay was denied. As a result, the action was set fo f r trial limited to the issue of plaintiff f ’s ’ damages befo f re the court. On October 2, 2019, the Second Department issued its decision on defe f ndants’ appeal, holding that the Supreme Court should have granted defe f ndants’ motion fo f r summary judgment dismissing plaintiff f ’s ’ claim under Labor Law §§240(1) and 241 (6), and denied plaintiff f ’s ’ cross-motion on the issue of liability t . The reversal by the Appellate Division not only placed defe f ndants’ negligence at issue negating the court’s ’ instruction that the defe f ndants were negligent. The only fa f ir and just result under these circumstances was fo f r the court to vacate the order of July 10, 2019, as well as the jury’s ’ verdict. Accordingly, y the court rendered its decision.
Elaine Co El Colavito Partner at Sahn Wa W rd Coschig i nano, PLLC Elain El ine Co Colavito gra raduated fr from To Touro r La Law Ce Center in i 20 2007 iin th the to top si six pe percent of o he her cl class. Sh She is i a Pa P rt rtner at a Sa S hn h W rd Wa r Co Coschigna n no no, PL PLLC in i Un U io iondale l . Ms Ms. Co Colavito co concentrates he ce her pr practice in i ma matrimonia i l and n fa f milily la law, ci civil lilitigation, im ig i mig i ra ration, and n tr trusts and n es estate ma matters. Sh She is i a Past Pr Pa President of o th the Na Nassau Co Count nty Wo Women’s ’ Ba B r As Association.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 19
SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION
ACCREDITA TATION FOR MCLE: The Sufffolk Academy of Law has been certified by the New Yo Y rk State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New Yo Y rk. Thus, Academy courses are presumptively approved as meeting the OCA's MCLE requirements. REMINDERS: Cancellations fo f r a full refund must be received within 24 hours befo f re the course. Yo Y u will be able to receive a credit fo f r your next live program up to three months aft f er the scheduled program. PROGRA R M LOCATIONS: Most, but not all, programs are being held as webinars; be sure to check the calendar listings fo f r locations and times. TUITION & REGISTRA R TION: Tu T ition prices listed in the registration fo f rm are fo f r discounted pre-registration. Sign up on line at: https://www.scba.org. NON SCBA MEMBER AT A TORNEYS: Tu T ition prices are discounted fo f r SCBA members. If you attend a course at non-member rates and join the Suff ffolk County Bar Association within 30 days, you may apply the tuition diff rential you paid to your SCBA membership fe dues.
AMERICANS WITH DISABILITIES ACT: If you plan to attend a program and need assistance related to a disability provided fo f r under the ADA, please let us know. DISCLAIMER: Speakers and topics are subj b ect to change without notice. “The opinions, beliefs f and viewpoints expressed herein are those of the authors and do not necessarily reflect the off f icial policy, y position or opinion of the Suff ffolk County t Bar Association, Suff ffolk Academy of Law, their Board of Directors or any of their members”
TAX-DEDUCTIBLE SUPPORT R FOR CLE: Tu T ition does not fully support the Academy's educational program. As a 501(c)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment. FINANCIAL AID: For info f rmation, please call the Academy at 631-234-5588.
NOTEWORT R HY – • If you paid fo f r a program and were not able to attend, you will receive a credit fo f r your next program up to three months aft f er the scheduled program. • We invite you to plan a course or suggest a topic fo f r CLE credit. Contact Dean, Peter D. T msen or Executive Director, Ta r Cynthia L. Doerler at cynthia@scba.org. • Materials fo f r all Academy programs will be emailed to you usually one day prior to the program. Register on-line at www.scba.org. T receive the member discount please log on To the website with your member number. r
DEAN’S LIST
Where would we be without routines? By: Dean, Pe By P te t r Ta T msen
W
ell, as the new year creeps fo f rward, it is time to embrace our normal routines. Routines are the substance of continuity. Where would we be without routines? I myself am very r routinistic. I fo f llow the same weekly schedule to a tee. Up at five, shower by six, work befo f re seven. R utines ke Ro k ep the world ticking along – trains run on time, (fo f r the most part), courts open and cases get called generally at the same time daily. Routines create order out of chaos. The Academy has routines as well. In my tenure as Dean, I have learned some of these routines. I fo f llow the routines at this time of year, r the routines at the Academy are in full swing. The Nominating Committee — consisting of the Dean and the outgoing Academy off f icers — had to meet. The purpose of the Nominating Committee is to select the new Dean of the Academy. The position is a twoyear stint. My term ends in May 2021. The Nominating Committee fo f r my Academy off f ices consists of myself as Dean, Marianne Ratala, Jason Stern and Brittany Mangam. The Dean and the Executive Director announce the positions that are open fo f r the spots at the Academy. Anyone interested in being the Dean or an Academy off f icer contacts the Executive Director Cynthia Doerler to express their interest to ascend to a particular off f ice on the Academy Board or to ascend to the role of Dean. The Nominating Committee reviews the interested party t ’s ’ CV and proposes a slate of off f icers and a new Dean. Once the Nominating Committee approves the slate of off f icers and the Dean, the slate of off f icers will then be announced at the next Academy meeting. During the course of the meeting, nominations can be accepted from the floor fo f r others to be considered off f icers and to fill the Dean position. If nominations from the floor are presented, these individuals must be voted on by secret ballot if it is an in-person meeting or by a show of hands if the meeting is by Zoom. Once the proposed slate of off f icers are rat-
ified by the Academy, y the slate must be submitted to the Bar Board fo f r ratification. If the slate is ratified, the slate, as approved, will lead the Academy into the future. The Dean has, as stated earlier, r only a two-year term. New off f icers are at first elected fo f r a one-year probationary term. If they succeed in their role, at the end of probationary one-year term they are then voted on again to ascend to a new three-year term. All this process, or routine, is intended to k ep the Academy stable and headed in the ke right direction. These routines provide continuity t and consistency in management at the Academy level. With the process being explained, I would like to introduce the proposed slate of Off f icers fo f r the upcoming leadership of the Academy. The term will begin on June 1, 2021. The Candidates are: Jarrett Behar, r Dean One Year Off f icers elevated to Three Year Terms: Mitchell T. T Borko k wsky k Michael Kruzynski Chad Lennon Hon. Jennife f r A. Mendelsohn Laurette D. Mulry Phillip Siegel One Year Off f icers: Aniella Russo Jessica St. Germaine Amy Hsu Catherine E. Miller Marianne Rantala Please join me in congratulating these wonderful and worthy candidates as they rise to serve on the Board of the Suff ffolk County t Bar Association Academy of Law. I will close with the gentle reminder that the Academy can always use your input. Input can be as simple as participating in a CLE program, presenting a program, proposing a program and attending a Curriculum Committee meeting. Once involved you too may want to fo f llow the routine and ascend to the Academy Board.
Peter Ta Pe Tamsen Dean, Su De Suf folk Ac Academy of o La Law Mrr Ta M T ms msen is i a pr private pr practitioner ma ti m in intain i in ing an of office in i Bay Sh Ba Shore. He H re represents pa p rr ties in ti i re residential and n co comme mercial tr ci trans nsactional re real es estate matters. He ma H se serves as a co couns nsel to t Waters Ed Wa Edge Ab Abstract In Inc., as a we we l l a se as several mo mortgages le lenders in i NY Y
20 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION
MARCH 2021 CLE PROGRAMS Surviving and Thriving Through a Pandemic Profe f ssionally and Beyond: An Attorney Wellness Series 4:00 P.M. 6:00 P.M.
March 9, 2021 Adjusting Your Attitude to Better Serve Your Client
April 14, 2021 Facing Financial Uncertainty with Confidence
May 11, 2021 Re-Establishing Joy in the Practice of Law
EVIDENCE SERIES Building Your Library r of Resources The half hour programs will be conducted weekly in a virtual fo f rmat and cover just about every aspect of evidence law in New Yo Y rk.
ALL PROGRA R MS 1:15 P.M. - 1:45 P.M.
Tuesday, y March 9, 2021 Use of Depositions at Trial Faculty: Hon. James Flanagan
Tuesday, y March 16, 2021 Hearsay Faculty: Hon. Thomas Whelan
Tuesday, y March 23, 2021 Hearsay Quirks Faculty: Vesselin Mitev, v Esq. How to Run and Grow Your Law Firm 2021 Resolutions Start Your Year Off f Right This five-part series off ffers you best practices when it comes to running your law practice. Part III – Marketing Your Firm
Thursday, y March 11, 2021 12:45 P.M. – 1:35 P.M. Part IV – How to “Sell” Your Firm
Thursday, y April 8, 2021 12:45 P.M. – 1:35 P.M. Part V – Perfe f cting the Client Experience
Thursday, y May 13, 2021 12:45 P.M. – 1:35 P.M. Moderators: Karen Tenenbaum, Esq. LL.M. (Tax) CPA, A and Jay Shery r ll, Esq. MARCH 2021 EDITION
MAT A RIMONIAL MONDAYS IS BACK! Matrimonial Series #1 COMMINGLING OF ASSET , TRANSMUTATIONS AND RESUMPTIONS Monday, y March 1, 2021
ANNUAL MAT A RIMONIAL UPDAT A E
Monday, y March 15, 2021 5:30 P.M. – 7:30 P.M. Faculty: Stephen Gassman, Esq. is the senior partner in the firm of Gassman Baiamonte Gruner, r P.C MAT A RIMONIAL MONDAY’S IS SPONSORED BY:
5:30 P.M. – 7:30 P.M. Faculty: Hon. John J. Leo J.S.C., Supreme Court, Suff ffolk County Hon. Jennife f r A. Mendelsohn, Support Magistrate Gary r H. Tabat, Esq., Kary r n A. Villar, r Esq., Lindsey M. Albinsky ky, Esq., Bry r an R. Johnson, Esq.
Matrimonial Series #2 SEPARA RATE PROPERT RTY CLAIMS IN REAL ESTA TATE Monday, y March 8, 2021 5:30 P.M. – 7:30 P.M. Moderator: Hon. Chery r l A. Joseph, A.J.S.C. Supervising Judge, Matrimonial Part Faculty: Jeff f rey Horn, Esq., Horn & Horn Howard B. Leff ff, Esq. Debra Rubin, Esq., Rubin & Rosenblum, PLLC
Matrimonial Series #3 SOCIAL SECURITY BENEFITS INCLUDING DISABILITY T AND VETERA R NS BENEFITS Monday, y March 22, 2021 5:50 p.m. – 7:30 p.m. Faculty: Hon. John J. Leo Supreme Court Suff ffolk County Hon. Jennife f r A. Mendelsohn Support Magistrate Chad Lennon, Esq., Veterans and Service Members’ Rights’ Clinic Touro College, Jacob D. Fuchsberg Law Center Laura Russell, Esq.
WRONGFUL DEATH COMPROMISE 101 THURSDAY AY, MARCH 11, 2021 6:00 p.m. – 7:00 p.m. Faculty: Hon. Theresa Whelan Suff ffolk County Surrogate’s Court Hon. Thomas Whelan Suff ffolk County Supreme Court
PROPOSED TA TAX CHANGES ANDHOW THEY MAY IMPACT BUSINESS AND ESTA TATE PLANNING Thursday, y March 25, 2021 12:45 p.m. – 1:35 p.m. Faculty: Pasquale Rafa f nelli, Empire Valuation Consultants Louis Vlahos, Esq., Farrell Fritz David Okrent, Law Off f ices of David Okrent
SURROGAT A E’S COURT R LEARN WHILE YOU LUNCH Learn the basics of Administration Proceedings and how to complete an Administration Petition
Thursday, y March 25, 2021 1:00 p.m. – 1:50 p.m. Faculty: Scott McBride, Esq., and Ray Palumbo
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 21
SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION
MARCH 2021 CLE PROGRAMS FOR TRANSACTIONAL ATTORNEYS AND LITIGATORS: WHAT YOU NEED TO KNOW ABOUT SURVEYS Part II – Types of Surveys
Thursday, March 18, 2021 12:45 p.m. - 2:00 p.m. Zoom Webinar · Why Do Yo Y u Want a Survey? · The V Variety t of Surveys and the Ones Most Commonly Encountered · Property t Surveys · Boundary Surveys · As-Built Surveys · ALT LTA Surveys · Subdivision Maps · Acceptable Abbreviations on Surveys Faculty: Scott A. Gillis, LLS, Partner, r Smith Jung & Gillis Surveyors Laura M. Endres, Esq., Partner, r Taylor, r Eldridge & Endres, P.C. Part III – Common Survey Problems and Issues
Tuesday, April 13, 2021 12:45 p.m. - 2:00 p.m. Webinar · · · · · ·
Encroachments and Out of Possessions Impediments to Closing Conflicting Surveys When Are Discrepancies “Minimal”? “ ncient Maps” and Lost Surveys “A R cords Ke Re K pt by Surveyors and Re R cords K pt by Government Entities – FOIL Ke R quests Re · Use of Drones fo f r Surveying · “War Stories” Involving Surveys Faculty: Floyd Carrington, LLS, Owner, r Raynor, r Marcks & Carrington Surveying Joseph A. Bollhofe f r, r Esq., Owner, r Law Off f ice of Joseph A. Bollhofe f r, r P.C., and Owner of Downstate Title Agency, y Inc. Buy the Series and Save! SCBA members $45 single program; $100 series Non Members $60 single program; $145 series
Introduction to New York State Labor Law Section 200, 440(1), and 241(6) Tuesday, y March 30, 2021 5:00 p.m. – 6:30 p.m. Faculty: Terrence T. Kossegi, Esq., Senior Counsel, New York City Law Dept.
SAV A E THE DAT A E CRIMINAL LAW SERIES Begins April 20, 2021 1:00 p.m. – 2:15 p.m. Arraignment 101: To Waive or Not to Waive Faculty: Hon. John Kelly, y District Court Judge
CLE PROGRAMS AV AVAILABLE
ON-DEMAND AND DVD or on-demand programs visit scba.org, and use this nk to get to our catalog https://scba.inreachce.com/ T order a DVD visit scba.org, then go to the store To and order a DVD or CD.
NAME CHANGES FOR TRA R NSGENDER CLIENTS
Ethics Game Night
Developed by the SCBA Professional Ethics & Civility Committee 1 Diversity MCLE 2 Ethics MCLE Obtaining a name change court order can be an extremely important step fo f r a transgen- One of our most popular annual programs der person, both to accurately reflect the Ethics Game Night is here! As a tribute to gender with which the person identifies, and past and future game nights grab your hot also provide them with a fo f undational docu- chocolate and all the goodies you can muster f r a hot night of Ethics! ment they can use to obtain other identity and join us fo Faculty: documents. Learn what you need to know to Hon. Paul J. Baisley, y Jr. J.S.C., properly assist and advise your transgender Supreme Court, Suff ffolk County clients. Faculty: Hon. James Hudson, Charlie Arrowood, Esq., County Court Judge, Name Change Proj o ect Counsel Acting Supreme Court Justice Transgender Legal Defe f nse & Harvey B. Besunder, r Esq., Education Fund (TLDEF) Margolin Besunder LLP Co-Sponsored by the SCBA Emcee: Chery r l Mintz, Esq. LGBTQ Committee Program Coordinator: VEHICLE AND TRA R FFIC Chery r l Mintz, Esq. Production Team: SCBA Profe f ssional LAW UPDAT A E Ethics & Civility Committee 2.5 Profe f ssional Practice MCLE V teran presenter, Ve r David A. Mansfield, will ELDER LAW UPDAT A E 2021 k ep you abreast of the latest developments. In Memory of Kenneth F. Grabie, Esq. ke Y u will learn about: Yo 3 Professional Practice; • Virtual Pandemic VT V L Lawyer 5 Ethics MCLE • Handling conferences, paperwork, k For the general and elder law practitioner court appearances and administrative this is a round-up of important recent law, matters cases, administrative rulings and other mat• Virtual Interview ters in elder law and estate planning. • Recent Case Law FACULTY T : • How the Practice Has Evolved Hon. Marian Tinari J.S.C., Suff ffolk Faculty: County, y Supreme Court David A. Mansfield, Esq.
22 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION
Suffolk Academy of Law Officers 2020-2021
DEAN
The Academy of Law would like to thank the following sponsors for their generous support
Peter D. Tamsen
EXECUTIVE DIRECTOR Cynthia L. Doerler
OFFICERS Jarrett M. Behar, r Associate Dean Mitchell T. Borkowsky k Darlene Jorif Mangane Hon. John Kelly, y Co-Chair, r Curriculum Committee Michael Kruzynski Chad Lennon Hon. John J. Leo, Associate Dean, Co-Chair, r Curriculum Committee Brittany C. Mangan Hon. James A. McDonaugh Hon. Jennife f r A. Mendelsohn Laurette D. Mulry r Hon. Deborah Poulos Hon. John E. Raimondi Marianne S. Rantala Hon. Eric Sachs Philip Siegel Tarsha C. Smith Jason A. Stern, Treasurer Ashley M. Valla
Thank you to our Annual Sponsors:
Fusco, Brandenstein, & Rada P.C. Over 4 Decades of Top Legal Expertise
HAV A E AN IDEA FOR A CLE PROGRAM? The Academy encourages concepts fo f r new programs proposed by the membership. A core goal of Academy programs is providing actionable info f rmation and solutions the attendees can both understand and implement aft f er the program. Checklists, fo f rms and other usable templates are encouraged. Programs are approved at a meeting of Academy Off f icers and are subj b ect to approval of the Board of Tr T ustees. Many programs will go through the Curriculum Committee fo f r further review and refinement befo f re being sent to the Academy off f icers fo f r a vote. Email your ideas to cynthia@scba.org. And don't fo f rget - members are welcome to join us at the Academy meetings each month. Not a member? Email mary@scba.org
DID YO Y U USE YO Y UR MEMBER BENEFIT? As a member in good standing you are eligible fo f r a $50 credit toward any CLE program! Use it when you register fo f r a live or zoom webinar. r (On demand and Podcasts not included). Not a member? Re R new or join now to receive your member benefits! Contact jane@scba.org
ENJOY O OUR PROGRAMS? Connect with the Academy on Fa F cebook, Tw T itter and LinkedIn to see and hear more about our programs and activities! Facebook https://www.fa f cebook.com/TheSuff ffolkA k cademyofLaw/ Twitter https://twitter.com/Suff ffolkA k cademy LinkedIn https://www.linkedin.com/company/4065351/admin/
FIND THE SUFFOLK ACADEMY OF LAW MARCH 2021 EDITION
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 23
(Business In (B Interruption Cl Claim ims and n CO COVID co continue ued fr from fr front co cover) which are described in the Declarations and f r which a Business Income Limit of Insurfo ance is shown in the Declarations. The loss or damage must be caused by or result from a Covered Cause of Loss. Insurers take the position that the coronavirus is not a direct physical loss or damage to the insured property. Plaintiff ffs have alleged a direct physical loss by pleading a causal relationship between COVID-19 and their losses and that COVID-19 “is a physical substance”, that it “live[s] on” and is “active on inert physical surfa f ces,” and is “emitted into the air” and that it attached to their property t making it “unsafe f and unusable, resulting in direct physical loss to the premises and property”i The majority of the Courts across the nation disagree. Some policies also provide additional coverage fo f r actual loss of Business Income sustained caused by action of “Civil Authority t ” that prohibits access to the property ty, if that prohibition is related to the physical condition of the property. Many policies also provide “Extra Expense” coverage fo f r necessary expenses incurred during the “period of restoration” that would not have been incurred had there not been loss to the property ty, i.e., security t f r property, fo y relocation expenses, disinfe f ction eff fforts, etc., but again, direct physical loss or damage is a prerequisite to that coverage. However, r the linchpin is that “direct physical loss or damage” is required fo f r Civil Authority t and Extra Expense coverage as well. Across the nation, the argument from the plaintiff ffs’ bar seems to be that “Physical Loss” and “Physical Damage” cannot be the same thing, otherwise the policy would not have used two diff fferent words. In North State Deli LLC et al. v. The Cincinnati Insurance Co. et al., 20-CVS02569, Superior Court fo f r the County of Durham, North Carolina, a group of restaurant policyholders sued their insurer in state Court and obtained a judgment in their fa f vor. r The Court held: Here, the Policies provide coverage fo f r "accidental physical loss or accidental physical damage." Cincinnati's argument that the Policies require physical alteration conflates "physical loss" and "physical damage." The use of the conjunction "or" means-at the very least-that a reasonable insured could understand the terms "physical loss" and "physical damage" to have distinct and separate meanings. The term "physical damage" reasonably requires alteration to property. See Damage, Merriam-Webster (Online ed. 2020) ("loss or harm resulting from injury to person, prop-
erty ty, or reputation"). Under Cincinnati's argument, however, r if "physical loss" also requires structural alteration to property ty, then the term "physical damage" would be rendered meaningless. But the Court must give meaning to both terms.
eral courts around the country, y which Justice Driscoll stated have “almost unifo f rmly” ruled that fo f rced closures due to COVID-19 did not trigger business interruption coverage. Specifically, y the Court fo f und that the theater company did not make any inquiry to the in-
The Court held that the policyholder’s ’ inability t to access and use their fa f cilities constituted a “physical loss” under the policies. On the other hand, insureds in New Yo Y rk have not fa f red well. In 10012 Holdings, Inc v. Sentinel Ins. Co, 20-CV 4471 (SDNY), the Court rej e ected the argument that “loss of” and “damage to” cannot mean the same thing and was ambiguous. See also Michael Cetta, Inc. d/b/a Sparks Steak House v. Admiral Indem. Co., 20 CV 4612 (SDNY 12-11-20), where the Court rej e ected argument that inability t to use the restaurant because of the closure order satisfies the “loss or damage” prerequisite of the Business Interruption coverage. Further, r the Court in Ta T ppos of Buff ffalo, LLC v. Erie Ins. Co, 20-CV-754 (WDNY 12-29-20) fo f und that “loss of use of a premises due to governmental closure order does not trigger BI coverage premised on physical loss.” In the first case from Long Island on this topic, issued on February 8, 2021, Nassau County Supreme Court Justice Timothy Driscoll ruled that insurance broke k rs were not required to cover economic losses fo f r a movie theater f rced to shut down operations as a result of fo state measures aimed at slowing the spread of COVID-19. Soundview Cinemas, Inc. v. Great American Ins., Index No. 605985-20 (Nassau Cty t Sup. Ct., Feb. 8, 2021). This decision sided with a growing number of fe f d-
surance company about specific coverage that would apply to these “unprecedented times.” The losses sustained by the theater due to COVID-19 related governmental restrictions did not constitute “direct physical loss of or damage to the property” which would trigger coverage. Insurers further argue that even if COVID19 were considered a direct physical loss or damage, there are exclusions from coverage which would take it out of coverage. For example, the exclusion fo f r losses related to virus or bacteria.
Exxclusion fo E f r Loss Due to V rus or Bacteria Vi i : We will not pay fo W f r loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable or inducing physical distress, illness or disease. . . . This exclusion was first introduced “in the aft f ermath of the 2003 SARS pandemic.”ii Courts across the nation have almost unanimously held the virus exclusion as unambiguous and have denied the business interruption claims. In Urogynecology Specialists of Florida, LLC v. Sentinel Insurance, 2020 WL 5939172 (MD Fla. Sept. 24, 2020), the Court denied a motion to dismiss based upon the virus exclusion and plaintiff f ’s ’ allegations that the exclusion was ambigu(Continue (C ued on o pa page 25 25)
24 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
(President’s (P ’ Me Message co continue ued fr from fr front co cover)
of lawyers and judges outside the boundaries of your off f ice. That collegiality t and connection with other lawyers is an incredible benefit and how we participate together in law practice. There is no available substitute that allows us to engage in the activities that make law practice more than just a job. Membership may be the life f blood of the SCBA, but bar associations are the heartbeat of the legal profe f ssion. The SCBA is not a clique of a subset of attorneys in Suff ffolk County t . Profe f ssional membership organizations throughout the country are struggling to add and keep members. The SCBA is no exception. Are Millennials, Baby Boomers, and GenXers not joining, renewing, or just too busy? How do we get others to join? Te T ll me what our Board or I can do to make k the SCBA the place to be. How do we as an organization change that trend? How do we get more people to want to join and stay with the SCBA as members? What is the pitch that works with such a diverse group of profe f ssionals? With so many other fa f ntastic organizations, why join the SCBA? We will soon be entering our new fiscal year dues cycle. If you have not already done so, please consider joining or renewing your membership. In this time of social distancing, the role of the SCBA has never been more critical. The COVID-19 pandemic has made an impact on our profe f ssion this past year. r We went from going to our off f ices every day, y
traveling to and from depositions, attending court confe f rences and trying cases to closed off f ices, depositions via Zoom, telephone conf rences, and postponement of trials. We fe now have Zoom happy hours. Change is inevitable. What becomes important is how you respond to change. The SCBA has distinguished itself by adjusting and evolving to constant change. Along with our Executive Director, r Jane LaCova, the staff f has provided support, benefits, and services to our members without interruption. Our Website Ta T sk Force leads the implementation of a complete redesign of our website with the backing fo f r tablet and mobile friendly pages. The Academy of Law has planned, produced, and presented dozens of timely and essential CLE programs and webinars. The SCBA has begun the publication of THE SUFFOLK LA LAWYER and will have EEditions and several glossy magazine type editions. I would be remiss not acknowledging our Director of Te T chnology's assistance, Barry Smolowitz, in leading us through these unchartered waters, allowing fo f r numerous virtual Board of Directors meetings, committee meetings, and confe f rences. His service has allowed us to respond to the many unique issues that arose throughout the year. r The SCBA has provided timely and inf rmative updates regarding ever-evolving fo Suff ffolk County t Court COVID-19 Protocols. Looking ahead, the SCBA, in conjunction with the Academy of Law, will present fo f r our Law Day off ffering, a Diversity Sympo-
sium, and continue to address the diversity t issues that have long been an open and honest part of this association. We commit to continue bridging the gaps in understanding and perceptions of diversity t issues. W can build relationships with each other We through the SCBA. In addition to our many committees, we continue to strive to bring you innovative opportunities to interact and connect. Whatever the future may hold, the SCBA will continue to move as necessary to promote events that bring our members together. r Law Day, y the Annual Meeting, the Installation, and other events may look diff fferent in 2021, but the spirit that is the SCBA will remain. We are an association of profe f ssionals who donate their time, energy, y and expertise to the various SCBA endeavors. The SCBA remains committed to its members and provides them with opportunities to build up their practices and increase their profe f ssional and personal connections during these changing times. As the legal profe f ssion's future take k s hold, we need to double down on our eff fforts to address our changing demographics. If we are lucky ky, with age comes wisdom gained from years of experience. So, let's put it to good use through active engagement in the SCBA to ensure a sustained and vibrant legal community t in Suff ffolk County t . February 13, 2021 Hon. Derrick J. Ro R binson President of the Suff ffolk County t Bar Association
(Business In (B Interruption Cl Claim ims and n CO COVID co continue ued fr from pa page 24 24) ous. This case is now being cited fo f r that proposition in New Yo Y rk filing. However, r Sentinel fa f iled to include a complete copy of the policy and the court fo f und that the Virus exclusion specifically modified other policy provisions which were not included in the motion. The Court also went on to hold that because of COVID’s ’ unique impact on society, y that it did not fe f el that cases dealing with pollution exclusions, pollution and mold, which caused illness were analogous or binding on the court. There have been several cases that distinguish themselves from the Sentinel case and have upheld the virus exclusion, finding it is not ambiguous.iii Additionally, y there are pending laws in multiple states regarding this issue. However, r there has not been much movement on these laws. There are several excellent resources to k ep up with the ever-changing number of ke COVID-19 business cases. In particular, r the University t of Pennsylvania Cary Law School has published a COVID Coverage Litigation T acker at https://cclt.law.upenn.edu. They Tr MARCH 2021 EDITION
have provided charts by ty t pes of allegations, insurance carriers, plaintiff f ’s ’ firms and industry ty t pes filing the claims. They have even compiled a list that can be sorted by state and dates of filing. This very info f rmative tracker shows the upswing of cases being filed across the nation, but also demonstrates that the majority t of the rulings in the State and Federal Courts, are in fa f vor of the insurer. r Going fo f rward, insurers should continue to: 1. Re R view COVID business interruption claims handling to keep abreast of new developments and to make k sure claims are handled properly. 2. Av A oid potential bad fa f ith allegations by not issuing blanket denials of coronavirus related business interruption claims without conducting any investigation at all. 3. Make k sure each claim is evaluated on the specific underlying fa f cts, policy language, and applicable law to mitigate any exposure to bad fa f ith claims. 4. Re R view their reinsurance to determine whether its reinsurance policies cover claims that are ex-gratia or not covered by the insurance policy.
Insureds d should: 1. Be proactive by collecting and retaining documents to support their loss. 2. Be ready to demonstrate the financial health of a business befo f re and aft f er COVID19, including profit and loss statements, tax returns, bank statements, expense reports, and budgets. 3. Have its insurance policy reviewed to determine when and how to provide notice and what the potential insurance defe f nses may be. 4. If litigation is necessary, y you may need experts on coronavirus, employee testimony, y records related to infe f ctions, etc.
Christine Malafi Senio Se ior Pa Par tner at a Ca Campolo, Miiddleton & Mc M McCormic ick, LL LLP Note: Ch No Christine Ma M la lafi is i a Se S enio ior Pa P rt rtner at a Ca C mp mpolo, Middleton & Mc Mi McCormic ick, LL LLP, recogniz re ized by b Fo Forbes as a a To Top Corporate La Co Law Fi Firm in i Am America. She ch Sh chair irs th the Co Corporate De Deparrttment and me n yo you ca c n re reach he her at cmala cm lafi@cmmllllp.co com
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 25
(2020 Co Court r of o Ap Appeals l De Decisions in i Pe Personal In Injury r co continue ued fr from pa page 5) 5 Court of Appeals as of right. The plaintiff ffs argued that General Municipal Law §50-h (1) permits a claimant to have their “personal physician and such relative or other person as he may elect” present at the oral examination and that the co-claimant qualified as an “other person” under the statute. However, r the Court of Appeals employed the last antecedent rule of statutory construction and determined that this right only applies to a physical examination, the last of the pre-action examinations listed in the statute. As such, the Court of Appeals affirmed the action’s ’ dismissal. The Court of Appeals also decided a nuanced case involving the sole proximate cause defe f nse to Labor Law §240(1). This
defe f nse generally applies where adequate safe f ty t devices were available and the plaintiff f knew that he was expected to use them but fo f r no good reason chose not to do so, causing an accident. See Gallagher v. New Y rk Post, 14 N.Y. Yo Y 3d 83 (2010). In Biaca-Neto v. Boston Ro R ad II Housing Development Fund…, 34 N.Y. Y 3d 1166 (2020), the plaintiff f was injured when he fe f ll from a height aft f er he unhooke k d his safe f ty t belt and entered the building through a window cut-out, despite a standing order from the general manager prohibiting workers from entering the building in this manner. r Aft f er the Supreme Court granted the defe f ndant property t owner’s ’ motion fo f r summary judgment, the Appellate Division aff f irmed
and the Court of Appeals granted review. Despite the standing order, r the Court of Appeals fo f und that there was evidence that the defe f ndants acquiesced to the worke k rs’ practice of entering the cut-outs, rendering it an “accepted practice”. Even though there was a direct order prohibiting the plaintiff f ’s ’ conduct, the Court determined that there were issues of fa f ct related to whether the injured worke k r knew he should have used other safe f ty devices and reversed the granting of the owner’s ’ motion. In a challenging year, r the Court of Appeals continued to decide novel and nuanced issues in tort litigation that practitioners should be mindful of moving fo f rward.
(Inactive Ca (I Case Ma May Be B Re Restored Af After Si Six Ye Years r co continue ued fr from pa page 6) 6 This decision serves as a good refresher ffor practitioners handling matters that have laid dormant. For post-note of issue cases that were marke k d off ff, the court “shall” deem the case abandoned without the need fo f r an order if not restored within a year pursuant to CPLR 3404. As such, counsel fo f r plaintiff ffs should keep a close eye on how long any post-note of issue cases have been marked off ff. For pre-note of issue cases including
those in which the note of issue was filed but then vacated, the party seeking dismissal may make a CPLR 3216 motion, or the court may dismiss sua sponte, but only aft f er serving a 90-day notice. As such, the party t seeking dismissal, such as the defe f ndants in Guillebeaux should make certain to serve such notice befo f re making such a motion. Counsel on the receiving end of such a dismissal should obj b ect if opposing counsel
or the court fa f iled to serve the requisite 90day notice, as was ultimately successful in the Guillebeaux case. As always, all counsel should be mindful that any case may be dismissed or defa f ulted f r fa fo f ilure to answer a calendar call or appear at a confe f rence pursuant to 22 NYCRR 202.27. As such, every r eff ffort should be made to appear, r obtain an adjournment, or advise the court in advance of the reason the attorney is unable to appear. r
(Jury (J r Se Selection: An A Ov Overlooked To Tool of o Tr Trial Ad Advocacy co continue ued fr from pa page 9) 9 A person is involved in a car accident. Sometime aft f er that accident they have surgery. Does that automatically mean in your mind that the surgery must have been caused by the accident? Assuming you induced the “No” answer that you hoped fo f r: So, you can keep an open mind to the possibility t that the plaintiff f ’s ’ alleged injuries, especially the surgery he had to his neck, were not caused by this accident? That’s ’ the question you will ultimately be asked to answer- did the accident cause
plaintiff f ’s ’ injuries. Befo f re answering that very r important question, I bet you would want to know a lot of things. Would you want to see pictures of the cars to determine the severity t of the impact? Know if police arrived at the scene? If any complaints were made at the scene of this accident which plaintiff f claims resulted in a neck injury requiring surgery? If the plaintiff f went to the ER by ambulance from the scene? If not, when was the first complaint? How old is the plaintiff f?
What do they do fo f r a living? Was he involved in any prior accidents where he injured his neck? How long aft f er the accident was the neck surgery- a week, a month, a year, r or even 15 months aft f er the accident? I’m sure you will want answers to those questions and many more befo f re making your decision- correct? Y u will gauge each juror’s Yo ’ reaction to your questioning. But just as important, you have laid the groundwork of your defe f nse to the entire panel.
(IRS Re (I Relief fo for Ta Taxpayers Fa Facing CO COVID-19 1 Fi Financ ncial St Struggle les co continue ued fr from pa page 13 13) IRS will conduct a thorough investigation.
tus is where the IRS agrees the taxpayer cannot both pay his or her taxes and basic Other Changes living expenses, so collection is suspended. The IRS also has expressly continued Penalty t abatement. The IRS can grant qualsome policies instituted early last year. r ified taxpayers penalty t abatement if the taxpayer had reasonable cause fo f r not filing a T mporary relief from collections Te return or paying taxes. In addition, the firstDuring the early months of COVID, the time penalty t abatement waiver may also be IRS suspended collection actions. That pro- available. vision expired, but several options still exist f r taxpayers to obtain relief including Cur- Conclusion fo rently Not Collectible (CNC) status. CNC staIf clients are struggling to pay their taxes
and/or fa f cing collection actions, the most important advice to give to them is to act promptly. They will have the most options to obtain a fa f vorable settlement, the sooner they act. For more info f rmation on these tax relief provisions, visit the IRS website at htt t ps://www.irs.gov/ v newsroom/irs-make k s-iteasier-to-set-up-payment-agreements-off rs-other-relieffe f to-taxpayers-struggling-with -tax-debts.
26 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
(The Ch (T Charg rge Co Conference: A Cr Crucial Pa P rt r of o An Any Tr Trial co continue ued fr from pa page 11) 1 be harmful to your respective cases. Therefo f re, you will need to object to them and argue to the court why the charges your adversary wants are improper. r Examples of such charges are the “missing witness” charge2, Re R s Ipsa Loquitor3, and spoliation of evidence4. Yo Y u should also be prepared to argue in fa f vor of the charges that you want which your adversary will obj b ect to. Counsel should be prepared to argue the legal principles supporting the giving of the charge and bring case law to support their position. It is here that the “Commentary” section that fo f llows each charge in the PJ P I is invaluable. The Commentary section of each charge will usually give relevant citations to useful case law to be used when arguing fo f r or against a particular jury charge. The Commentary also provides a useful starting point fo f r legal research when preparing fo f r the charge confe f rence. Bring to court copies of cases that support your position and provide them to the judge and your adversary at the charge confe f rence. Also, be prepared to place the citations of the cases and the language that you are relying upon on the record to preserve your appellate rights. In addition to preparing legal arguments fo f r or against a particular charge, counsel should be prepared to argue the fa f cts of the case as well. Jury charges cannot be given if the evidence in the record of the trial does not support them. The charge is limited to the evidence in the case.5 It is here that the ability t to cite to specific sections of the trial transcripts will be critical. Counsel should be able to cite specific testimony of the trial witnesses which supports the court giving a specific charge. Or in the alternative, testimony of the trial witnesses (or lack thereof) that f ils to support a specific charge or argues against the court giving fa it. The trial transcripts should be digested and bookmarke k d in preparation fo f r these arguments. Whether the charge confe f rence is held on or off f the record is a matter of prefe f rence of the trial judge. Some judges conduct the confe f rence in an info f rmal manner in their chambers, allowing fo f r counsel to state their positions and arguments without the fo f rmality t of an in-court proceeding. Other judges will conduct the confe f rence info f rmally in the courtroom, initially without a reporter present. Still other judges will conduct the entire confe f rence in the courtroom
and on the record. It has been my experience that any of these methods are acceptable so long as the judge allows an opportunity t f r counsel to be heard and, most importantly, fo y that a record of all discussions and obj b ections by counsel is made prior to the jury retiring fo f r their deliberations. “It is imperative that, to permit eff ffective appellate review, that all discussions concerning the charge be set f rth clearly in the record so that the positions of the parties and fo the decisions by the court are readily discernible.”6 Whether the objections of counsel are raised in chambers or in the courtroom, counsel must be absolutely certain that any obj b ections to the court’s ’ ruling, whether to include or exclude a charge to the jury, y is clearly stated on the record. Should one find themselves befo f re a judge that restricts access to the record, that fa f ct must also be stated on the record befo f re the jury gets the case fo f r their deliberations. Also, any obj b ections to the contents of the jury verdict questionnaire must be clearly and completely stated on the record prior to the jury getting the case (and the questionnaire!). An obj b ection to a particular jury charge without an obj b ection to the related content on the verdict questionnaire may not preserve the obj b ection to the content of the verdict questionnaire.7 For example, an obj b ection to the jury being charged on “Damages - Punitive”, PJ P I 2:278, without a corresponding obj b ection to a question on the verdict questionnaire which asks the jury fo f r an amount of money that they award fo f r punitive damages, may not preserve an obj b ection to the award of punitive damages on the verdict questionnaire. An eff ffective way of generally preserving an attorney’s ’ position and obj b ections made at the charge confe f rence, both with regard to the jury charge and the jury verdict questionnaire, is to request that the court mark the attorney’s ’ Re R quest to Jury Charge and Proposed V rdict Questionnaire as court exhibits. The documents then become Ve part of the trial record which can be submitted to the Appellate Division as part of the record on appeal. With the attorney’s ’ written submissions to the court made a part of the trial record, the attorney can then obj b ect to the jury charge and verdict questionnaire “in all respects that they deviate from” the attorney’s ’ submissions. Such a “blanket obj b ection” may serve as a (Continue (C ued on o pa page 29 2
(Trusts and (T n Es Estates Up Update co continue ued fr from pa page 17 17) administration of the decedent's estate. The record revealed that the decedent died on August 18, 2006 owning several parcels of realty t . Letters of administration issued to her son on June 12, 2007. Thereaft f er, r one of the decedent’s ’ granddaughters commenced a compulsory accounting proceeding in October, r 2015 not only seeking an accounting fo f r almost a decade of stagnation, but more importantly fo f r payment of her distributive share. In view of the fo f regoing, and the delay in administering and distributing the estate fo f r the 14 year period since the decedent’s ’ death, the court, although sympathetic to the decedent’s ’ grandson, granted the petitioner’s ’ application, and issued a warrant of eviction, which was stayed fo f r thirty t days in order to allow the grandson to vacate the premises voluntarily. In re Jenkins, 2020 NYLJ LEXIS 1723 (Sur. r Ct. Bronx County t ). MARCH 2021 EDITION
Revocation of Letters In In re Lewner, r the Surrogate’s ’ Court, New Yo Y rk County, y was confronted with an uncontested application by the petitioner, r coadministrator with the respondent of the estate of decedent’s ’ post-deceased spouse, to revoke k the preliminary letters testamentary issued to the respondent in the estate of the decedent, and appoint the Public Administrator in his place and stead. The propounded instrument left f the decedent’s ’ entire estate to an inter vivos trust of which the respondent was the sole beneficiary to the exclusion of the decedent’s ’ spouse. In support of the application, the petitioner alleged that respondent was unfit to serve as fiduciary to the extent that, inter alia, he fa f iled to file estate and income tax returns fo f r the estate since the decedent’s ’ death in 2016, thereby exposing the estate to considerable interest and penalties. Further, r the court’s ’ own records confirmed that
respondent had fa f iled to prosecute the probate proceeding since it was commenced, and fa f iled to file an estate inventory. Inasmuch as the respondent fa f iled to oppose the application, the allegations were deemed admitted. SCPA P 509. Accordingly, y based on the fo f regoing, the court fo f und that the respondent’s ’ various actions and inactions seriously jeopardized the decedent’s ’ estate and warranted his removal. In re Lewner, r NYLJ, Dec. 21, 2020, at 22 (Sur. r Ct., New Yo Y rk County t ).
Ilene Sh Il Sherwyn Co Cooper Partner Fa F rrell Fr F itz tz, P. P C.
IIllene co concentrates in i th the field of fi o tr trusts and n es estates. She is Sh i pa past-Ch Chair i of o th the New Yo Ne York St State Ba B r As Association Tr at Trusts and n Es Estates Law Se La Section, and n a pa pastPresident of Pr o th the Su S u f fo l k Count Co nty Ba B r As Association.
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 27
(Converting Yo (C Your Pa Paper Ca Case to t EE-file co continue ued fr from pa page 15 15) mandate on counsel, processing of both stipulations and orders to convert has exploded. Thousands of paper cases have been converted and the number grows every day. For those of you who were E-filing pre-pandemic, you are well acquainted with the benefits E-filing brings to your practice. Those who are new to E-filing, particularly the matrimonial bar, r have quickly come to realize those benefits and continue to seek conversion and commence new cases via NYSCEF even though that case ty t pe is consensual. In spite of the mandatory E-filing restriction being lift f ed, conversions should continue apace. In discussion with the District Administrative Judge’s ’ Off f ice, the general policy concerning conversion of cases is that it is expected to continue unabated. In terms of what counsel should know, cases which are now authorized consensual only are strongly encouraged to be converted while those that are now authorized mandatory, y even if consensual at the time of commencement, must be converted. In an eff ffort to move their cases to E-filing, practitioners have and continue to encounter barriers which sometimes have made the process less than smooth. The fo f llowing are some helpful tips to make the conversions easier. r The Stipulation and Consent to E-Filing is the method to convert that is submitted directly to County t Clerks and requires no judicial involvement. Form EF-10, a fillable pdf document, is filled out and signed by the parties appearing in the case. Despite its apparent simplicity ty, there are a handful of common reasons which result in the submission being rej e ected or delay the conversion. One issue which oft f en arises is that the digital signatures are not proper and cannot be accepted. Signatures need to be either a hand-writt t en signature made directly upon a pdf or word-processing document through the signer’s ’ computer, r phone, or other electronic device; a hand-written signature upon a hard copy of the document that is subsequently scanned, photographed, or otherwise converted to a digital image; or an image of a signature aff f ixed upon a pdf or word processing document through the signer’s ’ computer, r phone, or other electronic device. A ty t pewritten name in a script fo f nt or use of the “/s/” confo f rmance is not an acceptable signature. In a number of instances, such as on an ex parte application or where no other party t has appeared, only the Plaintiff f ’s ’ signature can be obtained. Where this occurs, include in the pdf of the stipulation, an aff f irmation explaining why only one signature is present. Where a party t is pro se, their consent to convert the case to E-filing is oft f en withheld because they believe that they are required to Efile their documents. Counsel should assure the pro se party t that that is not the case since their consent that the case be converted does not require that they participate in NYSCEF. F Pro se parties may continue to file in hard copy or participate in E-filing pursuant to Article 21-A of the CPLR and the E-filing Rules. The option is theirs whether the case is consensual or mandatory. In all instances, the nature of the case, as would be or is listed
on the RJ R I needs to be stated on the fa f ce of the stipulation. This will expedite the conversion as files oft f en need to be pulled or eCourts accessed to identify f the case ty t pe which NYSCEF requires as part of setting up the electronic docke k t fo f r the case. In the event, a case being converted has an assigned Judge, that Judge’s ’ name also needs to be indicated on the fa f ce of the stipulation. Without this info f rmation, the party t initiating the conversion will need to file an RJ R I in NYSCEF in order to have that Judge assigned to the case and be able to file any documents requiring judicial intervention. If your stipulation does not refe f rence the assigned Judge, the procedure fo f r uploading a previously purchased RJ R I is one of the most common obstacles practitioners fa f ce. Oft f entimes, the RJ R I was purchased years earlier. r Due to NYSCEF functionality t limitations, the RJ R I must be filed as the only document, the “Fee Already Paid” payment option must be chosen, the purchase date must be the date of upload and the receipt number entered as “12345”. Once submitted, all additional documents can then be filed by going back to the “File To T an Existing Case” link. Defe f ndants on converted cases frequently do not get entered into NYSCEF when the case is converted. This is most frequently due to the fa f ct that the party t was added to the case subsequent to commencement and proper notice to my Off f ice to amend the caption was not given. The fo f rm stipulation has limited space to enter captions and the use of “et al.” may result in the document being rejected. If there is insuff f icient room on the fo f rm, add a rider with the full caption as it exists as of the conversion. Be aware that thirdparty t actions will need to be added to NYSCEF aft f er the main action is converted and in the order filed to ensure all parties appear to allow all counsel to indicate consent to represent their clients. Counsel oft f en inquire about whether or when a stipulation will be processed. Conversion requests received by my Off f ice are usually completed within a week of submission. There are, however, r a number of reasons why you may be unaware the case was converted. The primary reason notice may not be received is that the email address written on the stipulation to which notification is to be sent is illegible. Printing very clearly or ty t ping in the address will greatly assist staff f in sending out the notification to a valid and correct email address. If you do not receive an email notification, search NYSCEF by index number or party t name prior to contacting the Court Actions Department. Index numbers with less than six digits will require inserting leading zeroes so that the index has a full six digits. For example index number 1234-2015 would be input into the search field as “001234/2015”. If a stipulation was rej e ected, make k sure to monitor your email entered into EDDS. The email notification sent by EDDS will include the reason fo f r the rej e ection. A correction to the document will then need to be resubmitted anew in EDDS as there is no mechanism to re-file into the prior submission unlike k in NYSCEF itself. f Early on in the pandemic, requests fo f r a conversion order were made directly to the Court via email. While this process may still be utilized, the prefe f rred method is to submit a Letter Application to Convert Pending Action to Electronic Filing via EDDS. This is fo f rm EF-28 on the NYSCEF website. Once the Court reviews and approves the application, that order is delivered to my Off f ice by the Chief Clerk’s ’ staff f via EDDS. Unless and until that delivery is made, the case will not be converted. Any inquiries concerning the status of these applications should first be directed to a search of NYSCEF as mentioned previously and then to the Chief Clerk’s ’ Off f ice. There have been cases where a Judge (Continue (C ued on o pa page 29 29)
28 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
MARCH 2021 EDITION
(TIC, TB (T TBE, JT JTWROS, Al Alphabe bet So Soup or o Ho Holding Ti Title co continue ued fr from pa page 12 12) Mrs. Smith as TBE and Mr. r Jones as TIC, but fo f r the language as “joint tenants.” Based on the language, it would appear that the interests of the parties despite the “joint tenant” refe f rence are separated into two distinct half shares. The right of survivorship as between all three parties with one set of parties being husband and wife f does not make k sense when viewed in light of the “one half interest.” Of course, if all the parties
are related and it is designed fo f r the property t to pass to the survivor, r then the language of conveyance to all grantees, as JTWROS would have conveyed a clear intent. The afo f rementioned examples, take k n from deeds in which such a discrepancy could have resulted in an unintended consequence. In examining how title to real property t should be held, a thorough discussion with the client is Yo Y ur Action in the Tr T ansAction.
(Pro Bo (P Bono At Attorney of o th the Mo Month co continue ued fr from pa page 18 18) matrimonial law. In addition, he has been both a volunteer firefighter and commissioner fo f r the Holtsville Fire Department. Prior to becoming a lawyer, r Mr. r Sallah was a talented musician. Well befo f re attending law school, Mr. r Sallah developed a love fo f r music while singing in his church choir. r When he was 15 years old, he started playing in his own bands, as a guitarist and a vocalist. His band, the Energy Package, hit Number 1 on the chart in New England fo f r 6 months, with a song called “This is the Tw T elft f h Night.” During his music career, r Mr. r Sallah played with such greats as Chuck Berry and Billy Joel. He also just happened to be in the Peppermint Lounge on the night that the immortal Jimi Hendrix played back up fo f r the Everly Brothers. When he’s ’ not doing trials or hanging out at his fa f vorite Irish pub in the Florida K ys, Mr. Ke r Sallah has fo f ur grandchildren who are the apples of his eyes. Despite working
in the divorce field, Mr. r Sallah has been very happily married fo f r almost 30 years to Kristin. Asked why pro bono work has been a constant part of his long legal career, r Mr. r Sallah responded, “I like to give back to the community t . I’v ’ e done well, and I love what I do. So I’m happy to take k pro bono cases.” The Pro Bono Proj o ect is indebted to Mr. r Sallah fo f r his persistent and unwavering dedication to helping the less fo f rtunate on Long Island. We also greatly appreciate the hard work of his wonderful assistant, Francine Zecca. We are delighted to honor him once again as Pro Bono At A torney of the Month. The Su Th Suffolk Pr Pro Bo Bono Pr Project is i a jo joint ef effort of fo o Na Nassau Su Suffolk La Law Se Services, th the Su Suffolk Co fo Count nty Ba B r As Association and n th the Su Suffolk Count Co nty Pr Pro Bo Bono Fo Found ndation. Th This te team ha has for ma fo m ny n ye years rs, jo joined fo forces wi with th the go goal o pr of providing fr free le legal as assistanc nce to t Su Suffolk
Co C ount nty re residents wh who are r de dealiling wi with ec economic ha no h rd rdship. Na Nassau Su Suffolk La Law Se Services i a no is non-pr profit ci civil le legal se services ag agency f nd fu nded in i pa p rt r by b th the Le Legal Se Services Co Corporation to ra t pr provide fr free le legal as assistanc nce to t Long Is Lo Island nders, pr primari rily in i th the are reas of o be benefits ad ef advocacy, ho homelessness pr p r e ve n t i o n (foreclosure (f r and n ev eviction de defense), ac access to t healt he lth ca c re re, and n se services to t sp special po popula l tions su ti such as a do domestic vi violence vi victims and n the di th disabl bled. The pr Th provision of o fr free se services is i ba based upon fi up financ ncial ne need. Un Unfortuna nately, th there is i n fu no f nd nding fo for th the ge general pr provision of o ma matrimonial or ri o ba b nkr kruptcy re representation, th therefore th fo the de demand n fo for pr pro bo bono as assistanc nce is i the gre th reatest in i th these are reas. I yo If you are r in interested in i jo joinin ing ou o r de dedicated vo ca volunt nteers, pl please co contact Ca C ro rolyn Mc McQuade, Es Qu Esq. (6 (631) 1 23 232-24 2400 ex ext. 33 3325 or o cmcqua cm uade@nsls.le legal.
(Converting Yo (C Your Pa Paper Ca Case to t EE-file co continue ued fr from pa page 28 28) approved the application but the order was never submitted to EDDS. Contacting the Chief Clerk will expedite the delivery of the order to my staff f who can then process the conversion. Due to the nature of many of the Letter Applications, these are given priority t and are most oft f en converted the same day they are submitted to EDDS. No matter which method is used to convert the case, the hard copy file will not be digitized and uploaded to the converted
case. Those documents remain in my custody in paper fo f rm and can be viewed by making an appointment. Uploading any previously filed hard copy documents into the electronic case is the responsibility of the parties. E-filing is here to stay and is growing each year. r Converting your old paper cases to Efiling will streamline your operations and provide the benefits NYSCEF has to off ffer to your entire caseload. Whether or not the work
((T The Ch Charg rge Co Conference: A Cr Crucial Pa P rt r of o An Any Tr Trial co continue ued fr from pa page 27 27) “catch-all” obj b ection that might preserve an issue f r appellate review. As a matter of best practices fo however, r attorneys should not rely on this to the exclusion of detailed and reasoned obj b ections made on the record. Preparing fo f r the charge confe f rence and gaining an upper hand in the court’s ’ rulings can make the diff fference between winning and losing a trial. Making an eff ffective and complete record of your obj b ections during the charge confe f rence can preserve critical appellate issues should the verdict go against you. The charge confe f rence is a very critical part of any trial and counsel should prepare fo f r it accordingly. MARCH 2021 EDITION
from home model becomes permanent or remains flexible fo f r the bar, r the 24/7 ease of filing, access to the court file, automatic service and simple payment method make k Efiling the clear choice. With the tips being shared here in mind, go fo f rth and convert. Should a question arise or you need assistance, you can reach out to the Court Actions Department via email at courtactions@suff ffolkcounty t ny.gov.
Interested in a leadership position?
The Nominating Committee is now seeking candidates for adership positions, i.e., President, President Elect, First and Second Vice Pre esidents; Treasurer, Secretary and four Directors with terms piring 2023. “…No member shall be eligible for election to the Board of ectors who has not been an “Active Member” of the Association for least five years and a member of a committee, task force, cognized foundation of the association, an off f icer of the Suff f olk Acadmy of Law, w or any combination thereof, f for at least four years during ch period.” If you are interested and willing to assume an tive role in your professional association and its activities, email your umè today. y The Nominating Committee is currently looking for a broad range of ndidates that exemplify: • ervice to the Bar • Commitment to the Bar and related activities • Consistent desire to be active in the SCBA • eadership potential
Email your notice of interest to jane@scba.org ASAP!
www.scba.org • The Off f icial Publication of the Suff ffolk County t Bar Association • THE SUFFOLK LAWYER 29
(Debate Ov (D Over La L bo bor Pr Protections co continue ued fr from pa page 17 17b) While this decision only applies in the Though the fa f llout from Prop 22 has yet Third Department, it nonetheless indicates to fully settle, there are already signs that that the issue worker classification remains the batt t le lines are shift f ing to states like k New contentious and that app-based companies Y rk, where labor unions and trade groups should expect more litigation on this issue in Yo aff f iliated with the taxi industry have long the future. clashed with app-based companies. The most recent evidence of this is a decision by What The Future Holds Despite this, there are signs that the hosthe Appellate Division, Third Department in t between app-based companies and the Matter of Lowry that aff f irmed a ruling that tility Uber drivers were employees fo f r purposes of labor movement may start to thaw. Within days of the passage of Prop 22, Ly L ft f Presistate unemployment insurance laws. ’ time fo f r The Third Department’s ’ decision in Matt t er dent John Zimmer declared that “it’s y statof Lowry, y decided on December 17, 7 2020, re- peace” with unions across the country, lated to a claim by fo f rmer Uber drivers who ing that while “Prop 22 settled the question were seeking unemployment insurance. The of driver independence… we know there is New Yo Y rk Department of Labor fo f und that more work to be done.” Some labor organizations have also the fo f rmer drivers were employees and ruled that Uber owed additional unemployment in- shown openness to a new approach. For exY rk’s ’ surance contributions. Uber appealed to the ample, the executive director of New Yo Independent Driver’s ’ Guild, which was creUnemployment Insurance Appeal Board (“UIAP”), citing ated and partly funded by Uber in 2016 as ’ Union, rulings by the National Labor Re R lations Board part of a deal with the Mechanist’s called f fo r the parties to turn away from litithat its drivers were independent contractors, but the UIAP sided with the Depart- gation and re-engage on a legislative comy he has argued fo f r a ment of Labor. r Uber then appealed to the promise. Specifically, f rm of sectoral bargaining that would allow Third Department, which aff f irmed the UIAP fo f deral ruling, finding that there was substantial ev- drivers to collectively bargain despite fe f rmation to emidence to support its determination that Uber labor laws limiting union fo exercised suff f icient control over its drivers to ployees, a proposal that is conceptually in keeping with the “third-way” approach justify f classify f ing them as employees.
he Battle Shifts To T New Yo Y rk
sought by app-based companies to worker classification. While Prop 22 undoubtedly represents a turning point in how Califo f rnia treats appbased drivers, the national impact remains uncertain. Clearly, y app-based companies will seek to capitalize on their success and spread their new model to other states. However, r as the decision in Matter of Lowry demonstrates, they will still fa f ce numerous challenges, including lawsuits and legislative threats. The debate on worke k r classification will clearly go on.
30 THE SUFFOLK LAWYER • The Off f icial Publication of the Suff ffolk County t Bar Association • www.scba.org
Cuthbertson Maark Cu M t on r Cuthberts ffices of Mark Law Off
Mark Cuthbertson concentrates his practice in commercial real estate, municipal litigation and the representation of municipalities and notf r-profit cemeteries. fo
Matthew DeLuca Associate at the Law Offices of Mark A. Cuthbertson.
r DeLuca concentrates Mr. his practice in civil litigation and the representation of municipalities and f r-profit organizations. not-fo
MARCH 2021 EDITION