LI Life Calendar - SCBA · “Between Two Worlds: My Life And Captivity In Iran” Introductory Remarks by Joye Brown, Journalist, Newsday Tuesday, May 11, at 6:00 p.m. Bar center

_________________By Brian S. Condon

In cases of catastrophic personal injury, plain-tiff’s attorneys are acutely aware of the difficultyin depicting to the jury the true nature of theplaintiff’s injuries and how those injuries havedrastically affected the plaintiff’s enjoyment ofhis day-to-day life. Even taking into accountcopious amounts of medical records, physiciantestimony and expert opinion regarding the diredeparture from the plaintiff’s previous standardof living, a plaintiff’s attorney will still question whetherthe jury is able to understand the plaintiff’s damages, andreward the plaintiff accordingly. Therefore, the “day-in-the-life” video was created by plaintiffs in order to present tothe jury a visual display claiming to show how an injuryaffected the daily life of the plaintiff.

These videos present a unique difficulty for defensecounsel in defending their case against the risk of jury bias.The fear is that the jury will be so persuaded and moved bythe suffering of the plaintiff brought to life in the video thatthey will suspend reasoned and impartial judgment and findemphatically for the plaintiff. This article aims to assistdefense counsel in preventing such a verdict from occur-ring. It will highlight different challenges to a day-in-the-life video’s admission into evidence, and at the very least,show different strategies defense counsel can take to limitthe video’s effectiveness.

Day-in-the-life videos have previously been admitted in

New York courts as well as in other jurisdictionsacross the United States.1 A trial judge has widediscretion to admit such videos, and presumingthe judge has properly screened the video inchambers before its submission to the jury and thevideo can be properly authenticated, it has a real-istic opportunity to be entered into evidence.Despite this precedent, defense counsel who isfamiliar with the details of the video and wellversed in the variety of challenges preventingthese videos from entering into evidence, will

have ample ammunition to keep the video, or at the veryleast parts of the video, out of evidence.

Perhaps the most apparent challenge to the admission ofa day-in-the-life video is to claim that the video is inadmis-sible hearsay. Unfortunately, courts have routinely giventhe challenge little credibility, and instead allowed thevideo into evidence when the plaintiff is present at trial andsubject to cross-examination.2 These same courts rational-ize that any prejudice suffered by the defense through intro-duction of the video can be lessened through cross-exami-nation of the plaintiff during trial.

Although a hearsay challenge is likely to hold little swaywith the court, there are several alternative argumentsdefense counsel can make. The first of these arguments is tochallenge the video based on unfair prejudice. A day-in-the-life video is susceptible to challenge based on the plaintiff’sexcessive expressions of pain depicted in the video.3Defendants have successfully argued that a plaintiff’s

grunting, groaning, and crying during the taping of the day-of-the-life video has a tendency to evoke incredible sympa-thy for the plaintiff and unduly prejudice the defense. Theoverriding fear of the court is that these expressions of pain,coupled with the unique and memorable platform uponwhich a day-in-the-life video is displayed, is too emotional-ly charged and distracting for a jury to put into context.Furthermore, courts have correctly rationalized that thedefense was not afforded an opportunity to simultaneously

The SCBA Executive Committee hosted the first of twodinner receptions at Cafe Rustica in recognition of theSupreme and County Court Judiciary. Enjoying theevening were, Judge Martin I. Esman, Justice ThomasF. Whelan, President-Elect Sheryl Randazzo, andJustice William B. Rebolini.

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 26 No 7March 2010website: www.scba.org

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

The State of the Bar______________________By Ilene Sherwyn Cooper

As I sit here and write this article, I realize it has beenover nine months since I assumed the presidency of this Bar Association.Three seasons, 273 days, and multiple holidays, known to us all, and, perhapsnot as well-known, many Bar-related events and developments that have pro-pelled the Association forward.

Since my last update article in October, our members have been treated tofree membership cocktail receptions, the first, at Blackstone Steakhouse, and,the second, hosted by our Diversity Committee, at Four Food Studio inMelville. Both events were resounding successes, with raffle prizes, music,good food, and over 100 people in attendance. In the hope of continuing thismomentum, the Diversity Committee has planned a very special event for theevening of May 11, when it will bring to the Bar Association, Roxana Saberi,an author and journalist of Persian and Japanese descent, who spent monthsin captivity for espionage in Iran. Introductory remarks at this compellingprogram will be offered by Joye Brown of Newsday. We wish to extend oursincere gratitude to our principal sponsor, U.S. Trust/Bank of AmericaPrivate Wealth Management, for making the evening possible, as well asFarrell Fritz, P.C., Sign-A-Rama of Huntington, Enright Court Reporting,Inc., Posh Palate Caterers and Events, and Gregory A. Black, Esq..

The Membership Services and Benefits Committee has also been hard atwork arranging for membership discounts on automobile insurance, NewYork Sports Clubs, and Brooks Brothers. Since the night with the Islanders

PRESIDENT’S MESSAGE

Columbian Lawyers Association St. Joseph’s Day PartyWednesday, March 24San Marco Ristorante, Hauppauge

For information refer to Doris Pedus at (631) 543-8811 or email [email protected]

Second Annual Women’s Health Symposium“The Doctors Are In”Tuesday, April 20, 5:30 to 8:30 p.m.Bar center

The Suffolk County Bar Association, the Suffolk County Women’sBar Association and the North Shore LIJ Health System Katz Women’sHospital/Women’s Health Institute will join together for the secondannual evening event devoted to women’s health issues.

An eminent panel of physicians from the North Shore LIJ HealthSystem, leaders in their field of practice, will discuss the most recentfindings in women’s health. A light supper is included. $25/pp.

(For further information, see page 20)

SCBA Annual Meeting, Elections of Officers and AwardsPresentationMonday, May 3 at 6 p.m.Bar center

Book Signing by Author and Journalist Roxana Saberi“Between Two Worlds: My Life And Captivity In Iran”Introductory Remarks by Joye Brown, Journalist, NewsdayTuesday, May 11, at 6:00 p.m. Bar center

The American journalist abducted by four men while in Iran andfalsely accused of espionage and imprisoned, will discuss her individualbattle for freedom and the plight of many political prisoners in Iran whoare held captive for merely seeking such basic rights, as Freedom ofSpeech and Religion. Dinner included. $20.

(For further information see page 19)

Seal of Honor Author at the SCBAWednesday, May 26, from 6 to 9 p.m.Bar center

Gary Williams, the author of Seal of Honor, the story of LongIsland’s own Lt. Michael Patrick Murphy, son of SCBA member DanielMurphy, will speak and sign copies of his book.

BAR EVENTSIlene S. Cooper

(Continued on page 27)


Governor’s Bill Effects Medicaid..............4Ed Law and Grandparents’ Role ...............5Funding Supplemental Needs Trusts .........3Pooled Income Trusts ..............................10New Power of Attorney Statute.................7Durable Power of Attorney Law ...............9Where To Go After Homecare ..................9Heirs Get Capital Gain Exclusion .............5___________________________________Book Review............................................13SCBA Photo Album.................................14Crossword Challenge ...............................18___________________________________Legal ArticlesAmerican Perspectives.............................17Bench Briefs...............................................4Commercial Litigation .............................12Consumer Bankruptcy .............................16Court Notes ..............................................10DMV ........................................................16Pro Bono ..................................................12Second Circuit Briefs...............................11Trusts and Estates – Harper .....................13___________________________________Academy News ........................................28Among Us ..................................................8Calendar: Academy..................................28Calendar: SCBA.........................................2Committee Corner....................................17Community Outreach.................................6

INSIDE…MARCH 2010

FOCUS ON ELDER LAW

Evidentiary Challenges to the Day-in-the-Life Video

FOCUS ON

ELDER LAWSPECIAL EDITION

Brian S. Condon

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THE SUFFOLK LAWYER — MARCH 20102

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

Thomas More GroupTwelve-Step Meeting

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

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE:

631-697-2499

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

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

Please be aware that dates, times and locations may bechanged because of conditions beyond our control.Please check the SCBA website ( scba.org) for any

changes/additions or deletions which may occur. For any questions call: 631-234-5511.

MARCH 2010

24 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.25 Thursday Professional Ethics & Civility Committee, 6:00 p.m., E.B.T. Room.

Diversity Committee, 6:00 p.m., Board Room.

APRIL 2010

7 Wednesday Animal Law Committee, 6:00 p.m., Board Room.12 Monday Executive Committee, 5:30 p.m., Board Room.13 Tuesday ADR Committee, 12:30 p.m., E.B.T. Room.

Education Law Committee, 12:30 p.m., Board Room.Labor & Employment Law Committee, 8:00 a.m., Board Room.Women & the Law Committee, 6:00 p.m., Board Room.

14 Wednesday Lawyers Helping Lawyers Committee, 5:00 p.m., E.B.T. Room.Insurance & Negligence Defense Counsel Committee, 6:00 p.m., Board Room.

16 Friday Solo & Small Firm Practitioners Committee 8:00 a.m., E.B.T. Room.20 Tuesday “The Doctors Are In” 5:30 p.m. Great Hall.

Women’s Health Symposium, 5:30 p.m., $25 per person, light supper included. Call Bar Center for Reservations.

21 Wednesday Animal Law Committee, 6:30 p.m., Board Room.22 Thursday Commercial & Corporate Law Committee, 5:45 p.m., Board Room.26 Monday Board of Directors, 5:30 p.m., Board Room.28 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Surrogate’s Court Committee, 6:00 p.m., Board Room.29 Thursday Professional Ethics & Civility Committee, 6:00 p.m., Board Room

MAY 2010

3 Monday SCBA’s Annual Meeting, $30 per person, 6:00 p.m., Great Hall, Bar Center. Election of Officers, Directors and members of the Nominating Committee. Awards of Recognition, Golden Anniversary Awards and Annual SCBA High School Scholarship Awards. Call Bar Center for reservations.

5 Wednesday Animal Law Committee, 6:30 pm., Board Room.11 Tuesday Labor & Employment Law Committee, 8:00 a.m., Board Room.

Education Law Committee, 12:30 p.m., Board Room.ADR Committee, 12:30 p.m., E.B.T. Room.Diversity Awareness Program, 6:00 p.m., Great Hall. Presenting Roxana Saberi, Author of “Between Two Worlds: My Life and Captivity in Iran”. $20 per person. Call Bar Center for reservations.

12 Wednesday Lawyers Helping Lawyers, 5:00 p.m., E.B.T. Room.Insurance & Negligence Defense Counsel Committee, 6:00 p.m., Board Room.

13 Thursday Women & the Law, 6:00 p.m., Board Room.18 Tuesday Municipal Law Committee, 6:00 p.m., E.B.T. Room.

Calendar

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

Ilene S. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PresidentSheryl L. Randazzo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . President ElectMatthew E. Pachman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . First Vice PresidentArthur E. Shulman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second Vice PresidentDennis R. Chase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TreasurerWilliam T. Ferris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SecretaryLynne M. Gordon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Maureen T. Liccione . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Hon. Peter H. Mayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Daniel J. Tambasco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2010)Hon. W. Gerard Asher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Annamarie Donovan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Joseph A. Hanshe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)George R. Tilschner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2011)Cheryl F. Mintz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Lynne Poster-Zimmerman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Richard L. Stern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)Kerie Pamela Stone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Director (2012)John L. Buonora . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2010)Barry M. Smolowitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2011)James R. Winkler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Past President Director (2012)Sarah Jane LaCova . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Executive Director

Suffolk County Bar Association

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

E-MAIL: [email protected]

Board of Directors 2009-2010

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

DOROTHY PAINE CEPARANOAcademy News

ILENE S. COOPER, ESQ.DOROTHY PAINE CEPARANO

JOSEPH LA FERLITA, ESQ.BRONWYN BLACK, ESQ.

Editorial Board

Leo K. Barnes, Jr.Eugene D. BermanJohn L. BuonoraDennis R. ChaseElaine ColavitoIlene S. CooperJustin Giordano

Robert M. HarperDavid A. Mansfield

Craig D. RobinsAndrew Van-SingelFrequent Contributors

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

TH

E

PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

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

Send letters and editorial copy to: The Suffolk Lawyer

560 Wheeler Road, Hauppauge, NY 11788-4357Fax: 631-234-5899

Website: www.scba.org E.Mail: [email protected]

or for Academy news: [email protected]

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

To Advertise in

The Suffolk Lawyer

Call

(866) 867-9121

Discounts For MembersThe Membership Services and Activities Committee is pleased to announce two

more benefits for Suffolk County Bar Association members - discounted member-ship at New York Sports Clubs and Brooks Brothers locations. Due to the hardwork of co-chairs Andrew Ellsworth and Robert Harper, Suffolk Bar members (andtheir employees) are eligible to receive a passport for use at any New York SportsClubs location for $69.95/month. The regular cost of the passport is $86/month.Please contact Aaron Mazer of New York Sports Clubs at (646) 284 -6656 [email protected] to sign up for the discount.

Additionally, thanks to co-chair Michele Klatch, Suffolk Bar members are eligi-ble to register for the Brooks Brothers Corporate Membership Card. Those mem-bers who register for the card will receive a 15% discount on all regularly pricedmerchandise at Brooks Brothers stores in the United States and Canada and by tele-phone and online. Enroll online at Membership.BrooksBrothers.com (do nottype in http:// or www. in front of the web site address). Enter your OrganizationID# 10453 and your Pin Code# 94441. Enroll by telephone by calling CorporateIncentive Services toll-free at 1-866-515-4747, Monday through Friday, 9am to5pm, ET. Please have your Organization ID# and Pin Code# available.

THE SUFFOLK LAWYER — MARCH 2010 3

To Advertise in

The Suffolk Lawyer

Call (866) 867-9121

______________________By Richard A. Weinblatt

In the Matter of Jennings, 1/14/2010N.Y.L.J. 27, (col. 1), the AppellateDivision, 2nd Department, held that theincome of a recipient of Medicaid nursinghome benefits cannot be used to fund asupplemental needs trust created for thebenefit of her disabled son. This decisionis consistent with the decision of the UnitedStates Court of Appeals for the SecondCircuit in Wong v. Doar, 571 F.3d 247. Itheld that the income of a Medicaid nursingbenefit recipient cannot be used to fund asupplemental needs trust for such recipi-ent’s benefit.

Until the enactment of OBRA 93 therewere no statutory rules permitting a disabled

individual to have such disabled person’sresources and/or income placed into a trustand have such trust disregarded as availableincome and resources for the purposes ofdetermining Medicaid eligibility. Effectiveas of August 1993, OBRA 93 created twoexceptions, which apply in New York State,to the statutory trust rules for trusts contain-ing the assets of disabled persons.

The first exception, found at 42 U.S.C. §1396p(d)(4)(A), enables disabled individu-als under the age of 65 to contribute assetsto a supplemental needs trust for their ben-efit without having such assets count asavailable assets for Medicaid purposes.The statute imposes two conditions to thisexception. First, the trust must be estab-lished for the benefit of such individual bya parent, grandparent, legal guardian or acourt. Second, upon the death of such indi-vidual, the state must be reimbursed from

the remainder of the trust for med-ical assistance paid on behalf ofthe individual before any amountsare distributed to the trust remain-dermen. Because of this secondcondition, such trusts are oftenreferred to as “payback trusts.” Inaddition to assets of a paybacktrust being excluded as availableassets for Medicaid purposes, con-tributions to a payback trust areexempt transfers under the Medicaid trans-fer penalty rules.

The second exception created by OBRA93, found at 42 U.S.C. § 1396p(d)(4)(C),enables a disabled person of any age tocontribute assets to a supplemental needstrust that is established and managed by anon-profit association in which separateaccounts are maintained for each benefi-ciary. However, these separate accountsare pooled by the trust for purposes ofinvestment and management of funds.These trusts are commonly referred to as“pooled trusts.” In addition to the disabledperson’s parent, grandparent, legalguardian or a court, the disabled individualis also permitted to establish a pooled trustaccount for his or her own benefit. Uponthe death of the disabled person, thepooled trust may either retain the balancein the account or reimburse the state formedical assistance paid on behalf of thedisabled person. Unlike payback trusts,pooled trusts are subject to the Medicaidtransfer penalty rules.

OBRA 93 also created exceptions to theMedicaid transfer penalty rules for assetstransferred to a trust established solely forthe benefit of the individual’s child (42U.S.C. § 1396p(c)(2)(B)(iii)) and for assetstransferred to a trust established solely forthe benefit of a disabled individual under 65years of age (42 U.S.C. § 1396p(c)(2)(B)(iv)). 42 U.S.C. § 1396p(h)(1) defines theterm “assets” to include both income andresources.

The issue presented in Wong v. Doarwas whether income placed into a supple-

mental needs trust created forthe benefit of the recipient ofMedicaid nursing home bene-fits, although exempt from theMedicaid transfer penalty rules,was available income to be bud-geted by Medicaid towards thecost of nursing home care. Inother words, even though thestatute permits income to beplaced into the supplemental

needs trust without penalty, is this incomerequired to be used by the recipient ofMedicaid nursing home benefits towardsthe cost of his or her nursing home care?

In Wong v. Doar, the court acknowl-edged that for the determination ofMedicaid eligibility, the statute permits theincome to be placed into a supplementalneeds trust but drew a distinction betweenMedicaid eligibility determinations andpost-eligibility budgeting. With respect topost-eligibility budgeting for recipients ofMedicaid nursing home benefits, the courtheld that the Federal regulations at 42 CFR435.832 provide no deduction from therecipient’s income for amounts placed intoa supplemental needs trust. Accordingly,it held that the income that was placed intothe supplemental needs trust was availableto be used towards the cost of the recipientsnursing home care.

Although Wong v. Doar made it clearthat a nursing home recipient could notshelter his or her income against the cost ofnursing home care by transferring it into asupplemental needs trust for his or her ownbenefit, it did not address the question ofwhether income transferred into a supple-mental needs trust by the recipient ofMedicaid nursing home benefits for thesole benefit of a disabled child or a dis-abled person under age 65 would be bud-geted towards the cost of nursing homecare for the transferor. Matter of Jenningshas now made it clear that the post-eligibil-ity budgeting rules apply and such incomewill be budgeted towards the cost of thetransferor’s nursing home care.

These decisions, however, do not meanthat there is no benefit to funding a supple-mental needs trust with income. The mainbenefit of placing income into a supple-mental needs trust is to allow a personresiding in the community to retain suffi-cient income to meet his or her livingexpenses. Current Medicaid rules permit aperson residing in the community to retainonly $767 per month (with $20 extra for aperson age 65 or older). Indeed, it is virtu-ally impossible for a person residing onLong Island to remain in the communitywith this amount of income. Thankfully,there are no transfer penalties under thecommunity Medicaid rules and, in NewYork, the post-eligibility regulations at 42CFR 435.832 do not apply to the commu-nity Medicaid program. Thus, communityMedicaid recipients under the age of 65may continue to place their income into asupplemental needs trust and communityMedicaid recipients 65 years of age orolder may continue to place their incomeinto a pooled trust. The funds placed intothese trusts may then be used by the com-munity Medicaid recipient towards thepayment of their non-medical expenses.The availability of this income for the pay-ment of the community Medicaid recipi-ent’s non-medical expenses may enhancethe quality of such person’s life and per-haps make the difference as to whether ornot such person will be able to remain inthe community.

Note: Richard A. Weinblatt is a partnerin the Law Firm of Haley Weinblatt &Calcagni, LLP. He practices primarily inthe areas of Elder Law and Trusts andEstates. He is currently District Delegatefor the Tenth Judicial District to the NewYork State Bar Association’s Elder LawSection. He is a past director of the SuffolkCounty Bar Association and past Co-chairof the Suffolk County Bar Association’sElder Law and Surrogate’s CourtCommittees. He is also an adjunct profes-sor at Touro Law School.

Funding Supplemental Needs Trusts With Income

Richard A. Weinblatt

FOCUS ON


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__________________By David R. Okrent

It has been my pleasure to serveas your Elder Law Special EditionEditor. I would like to take thisopportunity to thank all my con-tributing authors. Preparing andsubmitting articles takes a greatdeal of time and effort. I hope ourreaders enjoy reading their articlesas much as I did. In putting thisspecial edition together I tried to compilearticles from various authors, on varioustopics that are timely and relate to theeveryday practice of Elder Law. In addi-tion, I sought some new authors so wemight get some new and possibly differentperspectives or viewpoints. If anyoneshould have questions after reading the

articles I encourage you to con-tact me or the author directly.

Elder Law is an ever changingpractice facing new and continu-ing challenges. It seems that astime passes these challenges andchanges in the practice growexponentially. On the horizon,we can see challenges resultingfrom the state’s need to reducecosts, from the courts’ interpreta-

tion of the law, and from changing nuances inthe ways we protect our clients. Last year wefaced changes in even one of the most basicparts of our practice, the “Power ofAttorney.” At the end of the day, our missionof protecting our clients’ independence, free-dom, and dignity is more important than everand even more gratifying.

Special SectionEditor’s Note forElder Law

David R. Okrent

________________By David Goldfarb

The Governor’s Article VIIBudget Bill contains a number ofprovisions effecting Medicaid.Three major provisions are:expanded estate recovery, a 12hour per day cap on home careservices and a demonstration pro-ject for financing long term care.

Expand Medicaid Estate RecoveryThe bill proposes to expand Medicaid

estate recovery in Section 369 of the SocialServices Law. The provisions wouldexpand Medicaid estate recovery to includerecovery from the recipient of a decedent’s

property by distribution or survival and toexpand the definition of “estate” for thepurposes of recovery to include “any otherproperty in which the individual had anylegal title or interest at the time of death,including jointly held property, retained lifeestates, and interests in trusts, to the extentof such interests.”

Currently Medicaid estate recoveryunder state law is limited to an individual’sproperty included within the individual’sestate passing under the terms of a validwill or by intestacy, and would not include

property passing to a beneficiaryoutside of estate administrationsuch as through a beneficiary des-ignation or by operation of law.

Expanding estate recovery willencourage the outright transfer ofa person’s home instead of atransfer with a retained interest.This deprives the elderly and dis-abled of dignity and can put themat the mercy of the transferor.

Expanding estate recovery will encouragepeople to cash in and transfer the proceedsfrom their exempt retirement accounts.Furthermore, the proposed expansion to thedefinition of estate conflicts with existingNew York statutory law and will result incompeting claims to property of a deceasedMedicaid recipient. For example, theremainderman of a life estate has a futureestate which is indefeasibly vested. EPTL§ 6-4.7. And pursuant to EPTL § 6-5.1, theremainderman’s property right interest isalienable. Accordingly, mandatory estaterecovery against a life estate will generate aconflict between Medicaid’s rights and therights conferred by a remainderman, thuspotentially leading to a significant amountof litigation against third party transferees.

In 2003, Massachusetts enacted anexpanded definition of the word “estate”for Medicaid estate recovery purposes(Massachusetts General Laws, Chapter118E § 31). Legislation was subsequentlysubmitted to repeal the expanded estaterecovery provision but the proposed repealwas vetoed by the Governor. In July, 2004,the legislature overrode the Governor’sveto and amended the Massachusetts


David Goldfarb


FOCUS ON


___________________By Elaine M. Colavito

Suffolk County Supreme Court

Honorable Paul J. Baisley, Jr.

Motion to withdraw as attorney ofrecord granted; plaintiffs ceased to com-municate with counsel

In Carina Adames, Wimlar Collado,Ralphie Adames, infant by his father andnatural guardian Teobaldo Adames, andTeobaldo Adames, individually v. RaquelS. Collado, Juan Jose Collado and OnibraCaraballo, Index No. 32812/07, decidedon February 8, 2010, the court grantedplaintiffs’ attorney’s motion to be relievedas counsel. The court noted that the sub-missions established that plaintiffs ceasedto communicate with counsel. Further, thecourt pointed out that it has been wellestablished than an attorney may be per-mitted to withdraw from representationwhere the client’s conduct renders it unrea-sonably difficult for the lawyer to carry outemployment effectively. As such, the courtgranted plaintiffs’ counsel’s motion towithdraw as attorney of record.

Motion to vacate default judgment;relief from a default judgment whereincorrect address was on file withSecretary of State and as a result party didnot receive actual notice of the action intime to defend it

In Maria Russo, as Administratrix ofthe Estate of Vincent Russo, deceased,and Maria Russo, Individually v. John N.

Frank, Inc., 7-Eleven, Inc., and Deven A.Patel d/b/a 7-Eleven Food Store, IndexNo. 18678/04, decided on January 25,2010, the court granted defendant’smotion pursuant to CPLR §317, vacatingthe default judgment against such defen-dant. In support of its motion, defendantsupplied an affidavit of its principalreflecting that his former address was list-ed with the Secretary of State as the cor-poration’s address for the service ofprocess. However, after he sold the prop-erty in 1971, the corporation failed to noti-fy the Secretary of State of its new addressfor service of process. The court notedthat it was well established that a corpo-rate defendant served pursuant toBusiness Corporation Law §306 mayobtain relief from a default judgmentwhere it had an incorrect address on filewith Secretary of State and as a result didnot receive actual notice of the action intime to defend it. Here, the submissionsestablished that defendant did not receiveactual notice of the summons in time todefend the matter. Defendant furtherestablished the existence of a meritoriousdefense. As such, the motion to vacate thedefault judgment was granted.

Honorable Elizabeth H. EmersonMotion for an order directing the

Suffolk County Treasurer to release thesum of $10,000.00 previously paid intothe court granted; mechanic’s lien extin-guished by operation of law one year afterits extension; no need to stay the action of

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__________________By David R. Okrent

In 2009 I wrote the article “EstateTax Reform: What Happens toInherited Basis.” The focus of it wasan overall review of the law as it wasin 2009 and what the law would be ifrepeal under EGTRA1 came to pass.Well repeal has come to pass and asexpected, there has been a lot of dis-cussion of its impact. The focus ofthis discussion has been aimed at the new basis rules and itslimited increase provision, what assets can actually beincreased and how to coordinate the new rules in our tradi-tional estate planning. One thing that has not been dis-

cussed is the new IRC §121(d)(11) entitled “PropertyAcquired From a Decedent.”

IRC §121 is entitled “Exclusion of Gain from a PersonalResidence.” If all the provisions are met, the first $250,000of capital gain from the sale of a principal residence, or$500,000 for a married couple, is excluded from capitalgains tax. A IRC §121(d)(11), a new provision added byEGTRA, is the extension of the exclusion of up to $250,000of gain on the sale of a principal residence to estates andheirs of decedents dying after December 31, 2009. This new provision provides as follows:

“121(d)(11) Property acquired from a decedent.—The exclusion under this section shall apply to property sold by—

121(d)(11)(A)

the estate of a decedent,121(d)(11)(B)

any individual who acquired such property from the decedent (within the meaning of section 1022), and

121(d)(11)(C) a trust which, immediately before the death of the decedent, was a qualified revocable trust (as defined in section 645(b)(1)) established by the decedent, determined by taking into account the ownership and use by the decedent.

There are a couple of items to note about this new sec-tion. First, in reading the section it would appear that onlya type of trust that it would apply to is a qualified revocabletrust under IRC 645, which is a typically standard revoca-ble trust. However, that should not be the case, since it alsoapplies to any property “acquired” from the decedent underthe new basis IRC 1022(e). That section reads as follows:

“1022(e) Property Acquired From The DecedentFor purposes of this section[referring to

1022], the following property shall be consid-ered to have been acquired from the decedent:

1022(e)(1) Property acquired by bequest, devise, or inher-

itance, or by the decedent's estate from the dece-dent.

1022(e)(2) Property transferred by the decedent during his

lifetime—

______________By Brad Rosken

As society understands more aboutlearning and developmental disabili-ties and how to properly educate thechildren who have them, the role ofthe extended family is expanding inorder to provide support for the par-ents of these special children. Moreand more in my practice I am eithermeeting with the grandparents of thestudents that I represent or the grand-parents are the ones providing the financial support for theadditional services designed to address the child’s disabili-

ty related needs.The most important thing for any parent or grandparent

of a child with special needs is to have a good support sys-tem in place so that they can receive recommendations andsuggestions on how to appropriately educate their child.This is only obtained by meeting with and being treated byphysicians and experts in the relevant field of study.Families are encouraged to use their health insurance bene-fits to gain access to these professionals. The most impor-tant question to be able to ask an independent professionalis: my school district would like to provide Johnny/Sallywith this service. What do you think? Oh, that is not theproper service, what would you recommend for them? Theanswer to that question is the key to obtaining the appro-priate education for your grandchild.

The law governing special education is covered underIndividuals with Disabilities Education Act of 2004 (IDEA)which was re-authorized by Congress in August of 2006.Students with disabilities are entitled to Free andAppropriate Public Education (FAPE) in the LeastRestrictive Environment (LRE). The law governing this


Repeal Gives Heirs Capital Gain Exclusion on Home

Education Law and the Role of the Grandparents

(Continued on page 21)(Continued on page 21)

FOCUS ON


FOCUS ON


Brad Rosken

David R. Okrent


Watch this space every month for thecommunity outreach calendar and learnabout local charity, networking and com-munity events.

March 18 ThursdayNetworking and Resume BuildingForum, presented by New York StateSenator Kemp Hannon. Featuring careerconsultant Maggie Mistal, as seen on CNNand FOX Business News, and SusanMurphy, Assistant Dean of HofstraUniversity's School of Communication.7:00 p.m.-9:00 p.m., East Meadow HighSchool Auditorium, 101 Carman Avenue,East Meadow.

19 FridayFinancing Long Island's TransportationFuture, with Lieutenant GovernorRichard Ravitch, former MTA chairman,presented by the Action Long IslandTrasportation Task Force, 8:00 a.m. -10:00 a.m., Uniondale Marriott. For moreinformation: www.actionlongisland.org,or Lenae McKee: (631) 425-2700,[email protected].

23 MondayBuilding Relationships in BusinessSeminar, 8:00 a.m.-10:00 a.m., Mac'sSteakhouse, Huntington. Presented by theHuntington Chamber of Commerce. Visitwww.huntingtonchamber.com for moreinformation.

25 WednesdayBusiness After Hours, HuntingtonChamber of Commerce, hosted by AltriaSenior Living. 165 Beverly Road,Huntington Station. 6PM-8PM. Visitwww.huntingtonchamber.com for moreinformation

21, 27, 28Star Playhouse at the Suffolk Y JCC,"Hello Muddah, Hello Fadduh!" will beheld March 27 at 8:00 p.m., and March 21and 28 at 2:00 p.m. 74 Hauppauge Road,Commack. Contact (631)-462-9800.

April 11 SundayCCAN Dancin' for Kids Showcase, TheCoalition Against Child Abuse & Neglectpresents the 3rd Annual Dancin' for KidsShowcase. Chateau Briand, Carle Place.For more information (516)747-2966 orwww.ccanli.org.

15 ThursdayEconomic and Environmental Expo.The Huntington Chamber of Commercepresents an economic and environmentalexpo. Featuring financial & environmentalworkshops, business expo, and luncheon.9AM-2PM, Hilton Long Island. Tables forbusiness expo limited for the first 75 regi-strants. Free admission for workshops andexpo, luncheon $45 for Chamber mem-bers, $60 for non-members. Visitwww.huntingtonchamber.com for moreinformation.

22 ThursdayCAPS Spring Luncheon, Join ChildAbuse Prevention Services (CAPS) fortheir 25th Annual Spring Luncheon. TheCarltun, East Meadow. For registration orsponsorship information, call LegendaryEvents

May 14 FridayLIA Annual Awards Gala, honoringJoseph Ficalora, Jay H. Bernstein, Dr.Sean A. Fanelli, and Gene M. Bernstein.6PM at Crest Hollow Country Club,Woodbury. Black Tie. For ticket andsponsorship information, contact LIAGala Office (631) 493-3032 or [email protected].

June 7 MondayUCP of Suffolk Golf Classic, Glen HeadCountry Club, Glen Head. Honoree:Robert Lozzi of AXA Advisors, LLC.Contact (631) 232-0015 to reserve a four-some! To join the committee or ask que-stions, contact Irene Morlock, Manager,Special Events (631) 232-0011 ext 452.

14 MondayCAPS 12th Annual Golf Outing,Muttontown Golf and Country Club. TheCAPS John Davis Memorial Award willbe presented to Joe Campolo, Esq. Contact(631) 289-3240 or [email protected].

OngoingCanine Companions for Independenceis looking for volunteers to raise puppiesas assistance dogs for people with disabili-ties. Call Katrina Winsor at (631) 561-0217, or toll free 1-800-572-BARK(2275),or go to: www.cci.org.

Join the American Diabetes AssociationAdvocacy Committee - Call 1-888-DIA-BETES ext 3567 for information.

Quilting for Cancer Patients. Join thequilting group at Old First Church to makequilts for cancer patients, every Thursdayat 9:30 a.m. Contact (631) 427-2101.

Huntington Camera Club meets everyTuesday, September through June, 7:30p.m.-9:30 p.m. Huntington Public Library,338 Main Street, Huntington - MainMeeting Room on the lower level. Visitwww.huntingtoncameraclub.org.

Children's Story Time with readingsfrom a member of the Barnes & Noblestaff, every Tuesday and Thursday 10:30a.m. -11:00 a.m. Barnes & Noble, 4000East Jericho Turnpike, East Northport.Free! For more information, call (631)462-0208.

Support for Children of DivorcedParents. Family Service League's newseparation/divorce group provides supportfor children of grades 3 through 5.

Community Outreach Calendar


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On the Move…Forchelli, Curto, Deegan,

Schwartz, Mineo, Cohn & Terr-ana, LLP (the Firm) hasexpanded its Litigation practice,with the addition of James P.O’Brien, Jr. and ChristopherG. Gegwich as new partnersfocused on Labor & Employ-ment.

Adam L. Browser, formerly an associ-ate at Ruskin Moscou Faltischek, P.C, hasbecome Of Counsel.

Announcements, Achievements, & Accolades…

Lisa Renee Pomerantz led a freeworkshop, “How to Protect and Profitfrom Your Intellectual Property in theDigital Age” on March 5 that also includ-ed networking opportunities.

Elder law and estate planning attorneyPaul Hyl, of Genser Dubow Genser &Cona, Melville, recently presented anelder care program at an Intergenerationalconference sponsored by The Center forIntergenerational Policy & Practice,Dowling College in Oakdale.

William V. Ferro has been namedby New York Metro Super Lawyers mag-azine as one of the top attorneys in theNew York metro area for 2009. Mr. FerroFerro is the managing partner and head ofthe personal injury department at Ferro,Kuba, Mangano, Sklyar, P.C

Dennis Chase, SCBA Treasurer andlong time sustaining member of theWomen’s Bar Association, and his wife,Sheri hosted their 9th annual charity,"Dinner Libations Without PomposityBenefit," to raise funds for the Carol MBaldwin Breast Cancer ResearchFoundation on March 12 at the CrestHollow Country Club.

Condolences….To Patrick Kevin Brosnahan, Jr. and

his family on the recent passing of hisfather, Patrick Brosnahan Sr. who served inthe Navy for 39 years, 12 of them on activeduty.

To SCBA member Maureen Hoergerand her family on the recent passing ofher mother, Joan Patricia.

To the family of SCBA memberConrad J. Rybicki who passed away onMarch 6.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Mark Brettschneider, JosephDujmic, Jr., Lisa L. Hutchinson, AnnaMartin, Curtis Morrison and FrancesRosato.

The SCBA also welcomes its neweststudent member and wishes them success intheir progress towards a career in the Law:Christina E. Flounders, Dawn Castillo

Harper, Madeline Kerins,Christopher Laizure-Metz andDaniele Wilson.

On the Move –Looking to Move

This month we feature threeemployment opportunities andthree members seeking employ-

ment. If you have an interest in the post-ings, please contact Tina at the SCBA bycalling (631) 234-5511 ext. 222 and referto the reference number following the list-ing.

Firms OfferingEmployment

New York City law firm seeking mid-level associate with trusts and estates andinternational estate planning experience.

Reference Law #12.

General practitioner with Patchoguelaw office seeking full-time attorney.

Reference Law #1.

The New York State EducationDepartment’s Office of the Professions, isseeking applicants for the position ofAssistant Counsel in its Office ofProfessional Discipline (OPD). Underthe direction of OPD management and asupervising attorney, the incumbent ofthis position will participate in the devel-opment and review of investigations intoallegations of professional misconduct;provide legal advice to OPD investigatorsand members of the various State boardsfor the professions; engage in settlementnegotiations in professional misconductcases; and prepare for hearing and try,before panels, professional misconductcases, moral character cases involvingindividuals seeking licensure, and restora-tion of license cases involving individualswhose licenses have been previouslyrevoked or surrendered.

Reference Law #13.

Members SeekingEmployment

Newly admitted attorney to NY and NJbars seeks entry-level attorney position.The candidate has significant experiencein various areas of law; specifically elderlaw and estate planning.

Reference Att #27

Need help? Why not let me lightenyour Family Court and Matrimonial workload. This candidate has had a great dealof experience working with such matters.

Reference Att. #18

Aggressive, yet personable attorneywith 12 years of experience with transac-tions, regulatory compliance, and civil lit-igation at all phases and in all forums,seeking employment.

Reference: Att #14.

Keep on the alert for additionalcareer opportunity listings on theSCBA Website and each month in TheSuffolk Lawyer.

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______________________By Eileen Coen Cacioppo

What once was one of theforemost and routine planningdocuments for elder care attor-neys in New York State has nowbecome a subject of intensestudy and discussion, as manysubstantive changes in the lawhave been made. Found at Title15 Article 5 of the GeneralObligations Law is “StatutoryShort Form and Other Powers of Attorneyfor Financial Estate Planning.”Occupying almost 40 pages of text as wellas the new form, the statute presents sev-eral new concepts in the Power ofAttorney arena, including the title of“agent” replacing “attorney-in-fact.”

While power of attorney documentsexecuted prior to the effective date ofSeptember 1, 2009 continue to be valid ifthe document was valid at the time of itsexecution, some sections of the new lawapply to all power of attorney documentswhenever executed, as follows. A third

party is not required to accept a form if itis not a Statutory Short Form Power ofAttorney in the precise format containedin the statute. No changes can be made tothe statutory form itself, although“Modification” sections can be added. Itis unlawful for a third party to unreason-ably refuse to honor a properly executedstatutory power of attorney, with theexclusive remedy for violation being aspecial proceeding authorized by §5-1510.The law, while defining “reasonablecause” for a third party not to accept thedocument, also prescribes the use of anacknowledged affidavit by the agentbefore a third party can be required toaccept the document.

Following concepts set forth in the 2006New York Court of Appeals case Matterof Ferrara,1 the statute identifies theagent as a fiduciary of the principal andsets forth a clear standard of care and fidu-ciary duty for the agent which was not

explicit in the former statute.This concept applies to allpower of attorney documentswhenever executed. The stan-dard of care is defined as thatused by a “prudent person deal-ing with the property of anoth-er.2” The agent may not transferany property of the principal tohimself without specific autho-rization, hence new StatutoryMajor Gifts Rider and

“Important Information for the Agent”portions of the form which must be signedand notarized by the agent.

GOL §5-1509 provides for the princi-pal’s appointment of a “monitor” withauthority to request, receive from andcompel the agent to provide records of allreceipts, disbursements and transactionsundertaken as agent for the principal.Applying to all powers of attorney docu-ments whenever executed, if an agent failsto provide a record of all such receipts,etc. then a list of persons, including theprincipal, certain governmental agencies,court evaluator, guardian, guardian adlitem or fiduciary of the principal’s estate,can commence a special proceeding tocompel production of the records of theagent. A special proceeding may also becommenced for other purposes, such as todetermine if the principal had the capacityto execute the document and for variousother purposes stated in the statute.3

The new law also makes several impor-tant changes to the definitional and con-structional portions of the statute,4 mostnotably defining financial institutions tonow include securities brokers, dealers,firms and insurance companies. The pow-ers granted to the agent in the construc-tional sections are more limited in somecases than in the past law, so they must bewritten back into the document, if desired,such as the agent’s authority to “revoke,create or modify a trust.” 5 The power toadd, delete or change beneficiaries hasbeen removed from joint accounts andTotten trusts in “banking transactions” atGOL §5-1502D unless contained in theStatutory Major Gift Rider properly exe-cuted.

These and other substantive changeswill transform the landscape of this wide-ly used document. Despite many recom-mendations to the contrary, as of the dateof this writing, the new statute has not

Eileen CoenCacioppo


FOCUS ON


New York’s New Powerof Attorney Statute

Geriatric Care ManagementBudgeting and Funding Health Care

Bill Paying and Record KeepingConsolidation of Assets and Accounts

Home Care DecisionsReferrals for Domestic Assistance

Family Liaison for Out-of-State RelativesAssistance to GuardiansTransportation Referrals"Watchdog" Programs

Pre-Need Funeral PlanningGovernment Benefits

and Entitlement PlanningMedicaid

Social Security Retirement BenefitsSupplemental Security Income (SSI)

Social Security Disability Insurance (SSDI) Veteran's Benefits

Home Energy Assistance Program (HEAP)Elderly Pharmaceutical Insurance Cover (EPIC) Program

School Tax Relief Program (STAR) Community Services

Need assistance in your Elder Law practice? Call Us. 1-800-363-1944Email us at [email protected]

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_____________________By George R. Tilschner

As everyone should be awareby now, a new statute, in the formof amendments to General Obli-gations Law §5-1501, which gov-erns the Power of Attorney, tookeffect on September 1, 2009. Thenew statute indicates, however,that any power of attorney validlyexecuted in accordance with thelaws in effect prior to September 1, 2009,must be recognized by all third partiesunless reasonable cause exists not to recog-nize the power.

The amendment requires theuse of a new form, which, with afew exceptions that will be notedbelow, must be drawn exactly asset forth in the statute to be con-sidered a statutory form. Theform is longer, more detailed,and differs in several importantaspects from the form we haveused since the last revision.Further, the new form has

brought forth major changes in the way ourclients must execute the document.

The first important procedural change isthat in addition to the acknowledged signa-ture of the principal, the agent or agents(formerly known as the attorney in fact), asset forth in Section (b) of the new form,must also sign the document before anotary public. If multiple agents areappointed, and the principal wishes theagents to be able to act separately, the prin-

Seal of Honor Author at SCBAGary Williams, the author of Seal of Honor, the story

of Long Island’s own Lt. Michael Patrick Murphy, sonof SCBA member Daniel Murphy, will speak and signcopies of his book at the SCBA on May 26 from 6 to 9p.m. Lt. Michael Patrick Murphy, USN, a Navy SEAL,earned the Medal of Honor, the Silver Star and thePurple Heart for his heroic service in Afghanistan. Forfurther information, call (631) 234-5511.


_________________By George L. Roach

The question often asked byfamily members caring for lovedones who are no longer able tolive on their own in the commu-nity is: “What is available short ofplacing mom or dad in a nursinghome?” The two main resourceswhich immediately come to mindare Assisted Living Centers andMedical Model Adult Day Care Programs.Having watched the trends in Elder Lawdevelop over the past 30 years, there is nowa need for the type of care once provided topeople in what was called a health relatedfacility (HRF) setting. These facilities werefor people with activity of daily living skills(ADL’s) that did not require placement in askilled nursing facility (SNF) (what isthought of as traditional nursing homeplacement). The tremendous need for thisin-between type of care, short of a nursinghome, gave rise to the whole industry ofproviding assisted living care. There areseveral national chains providing assistedliving care service throughout the country,including here in Suffolk County.

As with any form of long term care, thequestion becomes what does it cost andhow do we pay for it? There are basicallyonly three ways to pay for long term care inour society:

• long term care insurance; • privately from your “nest egg”; • taxpayer funded medical care, com-

monly known as Medicaid.Unfortunately, when it comes toassisted living facilities, neitherMedicare nor Medicaid are avail-able to pay for the personal carecomponent the resident requires.Currently in Suffolk CountyMedicaid will pay for the assist-ed living care being provided intwo pilot programs. As these arepilot programs however, the goal

is to gauge the cost effectiveness of keepingpeople in assisted living settings versus tra-ditional nursing home placement. The bot-tom line has yet to be determined.

In explaining the assisted living option toclients, I often compare the personal carecomponent to a landlord-tenant relation-ship. For a specified sum of money permonth, i.e. your rent, you get room andboard, 24/ 7/365. In some places it’s not a

bad way to go…if you have the money.The ballpark figure for assisted living care,depending on how much you need, canrange anywhere from $2500 to $5000 permonth or more per individual resident. If

Where to Go After HomecareOther community resources for senior citizens

George L. Roach


The New Durable Power ofAttorney LawProcedural Changes to the Form

George R. Tilschner


FOCUS ON


FOCUS ON


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______________________By Ilene Sherwyn Cooper

Appellate Decision-SecondDepartment

Attorney Resignations / Grievance Com-mittee Investigation Pending: The fol-lowing attorney, who is currently the sub-ject of an investigation by the GrievanceCommittee, has voluntarily tendered hisresignation:

Adrien J. Woolley: Mr. Woolleyacknowledged that he was the subject of anongoing investigation by the GrievanceCommittee and that charges of his profes-sional misconduct would be prosecutedagainst him based upon allegations involv-ing fraud, conflict of interest, and mishan-dling of funds entrusted to him as a fiducia-ry. Mr. Woolley acknowledged that hewould be unable to successfully defend him-self on the merits against any disciplinarycharges which might be brought againsthim. In addition, he acknowledged that hisresignation was freely and voluntarily ten-dered and that he was fully aware of theimplications of submitting his resignation.Further, he acknowledged that his resigna-tion was subject to an order directing that hemake restitution and reimburse the Lawyers'

Fund for Client Protection. In viewof the foregoing, Mr. Woolley’sresignation was accepted and hewas disbarred from the practice oflaw in the State of New York.

Attorneys Disbarred

James T. Hytner (admitted asJames Thomas Hytner): Bydecision and order the respondentwas suspended from the practice of law,the Grievance Committee was authorizedto institute a disciplinary proceedingagainst him, and the matter was referred toa Special Referee. That decision and orderalso directed the respondent to serve andfile his answer within 20 days after serviceof the decision and order upon him.Although the decision and order was per-sonally served on the respondent, he failedto serve and file an answer or request anextension of time to do so. The GrievanceCommittee therefore moved to disbar therespondent. Inasmuch as the respondentfailed to file an answer, all allegations ofmisconduct against him were deemed to beestablished. Accordingly, based upon theallegations, the respondent was disbarredfrom the practice of law in the State ofNew York.

Decisions Of InterestSecond, Ninth AndEleventh Judicial DistrictsAttorneys Censured

Neal M. Pomper: Appli-cation by the GrievanceCommittee to impose reciprocaldiscipline based upon discipli-nary action taken against him bythe Supreme Court of New

Jersey. By order of the Supreme Court ofthe State of New Jersey, the respondent waspublicly censured for assisting a personwho is not a member of the Bar in the per-formance of an activity that constitutes theunauthorized practice of law. Althoughserved with notice of the charges againsthim, the respondent failed to assert anydefenses or request a hearing. Accordingly,the application by the GrievanceCommittee to impose reciprocal disciplinewas granted, and he was publicly censuredbased upon the discipline imposed uponhim in New Jersey.

Attorneys Disbarred

Edward Murray Fink: By order ofthe Supreme Court of the State of New

Jersey, the respondent was disbarred onconsent based upon allegations, which hedid not refute, that he misappropriatedclient funds. The respondent furtheracknowledged, inter alia, that his con-sent to disbarment was freely given andvoluntary, with a full awareness of theimplications. Thereafter, the respondentsubmitted a statement to the GrievanceCommittee contending that the imposi-tion of reciprocal discipline in New Yorkwould be unjust, based upon his age, fail-ing health, and claims that he was thevictim of a scam by his client. Neverthe-less, based upon unequivocal admissionsin the New Jersey proceeding, his state-ments in that hearing that he could notsuccessfully defend himself against thecharges alleged, and his failure todemand a hearing as required by law, therespondent was disbarred in New Yorkbased upon his disbarment in NewJersey.

Note: Ilene Sherwyn Cooper is a partnerwith the law firm of Farrell Fritz, P.C.where she concentrates in the field of trustsand estates. In addition, she is President ofthe Suffolk County Bar Association and amember of the Advisory Committee of theSuffolk Academy of Law.

Ilene S. Cooper

_______________________By Melissa Negrin-Wiener

Recent changes in the laws governingMedicaid have made it very clear that law-

makers are not looking to expandthe benefits of the Medicaid pro-gram. However, one change hasproven to help recipients ofCommunity Medicaid benefitspreserve their excess monthlyincome to leave funds availablefor non-medical expenses.

In order to qualify for MedicaidHome Care Benefits, an individualmay have no more than $13,800 oftotal assets in his or her name (the 2010Medicaid resource allow-ance). In addition,the same individual is only entitled to keep$767 of their income each month to pay fortheir day to day, non-medical expenses (the2010 Medicaid income allowance). Untilrecently, recipients of Medicaid Home CareBenefits were required to contribute theirexcess income (any amount over the $767

received each month) toward the cost oftheir care. For example, if an individualreceives $2,000 per month from socialsecurity and/or a pension, s/he would haveto spend $1,233 per month on the homehealth aide or other medical expensesbefore the Medicaid program wouldengage. The Medicaid beneficiary wouldthen be left with a mere $767 with which topay their monthly personal and householdexpenses.

However, as a result of the New YorkState fair hearing decision, In the Matter ofthe Appeal of M. O., a determination wasmade that qualified elderly and disabledindividuals in need of home care or com-munity services can use all of their excessincome to pay for their living expenses byparticipating in a pooled income trust (Fair

Hearing No. 3945750N). In thecase of M.O., a man, 67, wasreceiving Social Security dis-ability benefits and applied forthe Community Medicaid pro-gram. At the time of his applica-tion, he was receiving $1,078.70in income each month, whichwas in excess of the $642 allow-able income limit for that year.The applicant was approved for

Community Medicaid benefits with amonthly spend-down of $358, namely hisincome less a Medicare premium, the $20disregard and the allowable income limit.The Agency’s original determination wasthat the excess income subject to themonthly spend-down liability was availablefor payment of medical care and services ifthe incurred cost of care was neither equalto nor greater than the excess income. See18 NYCRR 360-4.1, 360-4.8. TheDepartment of Health in this decision, cit-ing the Federal revision made to theAdministrative Directive 96 ADM-8 onSeptember 23, 1997, determined thatpooled income trusts may be funded withan individual’s income without affectingtheir Medicaid eligibility. Further, theDepartment of Health found that suchdeposits of income are exempt from theapplicant’s resource calculation whetherthey are diverted directly into a PooledIncome Trust or placed into said trust uponbeing received by the applicant. Thus,Pooled Income Trust assets are available topay a Medicaid recipient’s monthly person-al and household expenses except forexpenses that would otherwise be coveredby Medicaid.

Pooled Income trusts are established byvarious not-for-profit organizations and arecodified pursuant to federal law (see 42 USC§1396p(d)(4)(c)) and state regulation (see 18NYCRR §360-4.5(b)(5)). All requests fordisbursements are individually reviewed bythe organization’s trustee. Disbursementsare not issued directly to the individual but

rather to the applicable third parties such aslandlords, mortgagors, retailers, vendors andso forth. Upon the death of the individual,any balance remaining in the account willremain with the trust to further its charitablepurposes. Although these trusts typicallycharge enrollment and monthly administra-tive fees, participating in a pooled incometrust is a means by which a qualified individ-ual can retain his or her excess income whileremaining eligible for Medicaid. For indi-viduals seeking to shelter lesser amounts ofexcess income, a Pooled Income Trust maynot be appropriate.

Returning to the example above, the indi-vidual enrolling in a pooled income trustwho receives $2,000 per month may con-tribute the $1,233 overage to the trust to beused for other living expenses, includingmortgage payments, rent, food, utilities,recreational activities, clothing, etc. Priorto this trust option, Medicaid recipientscould not use their excess income for any-thing other than their medical expensesthereby leaving many seniors seekinghome/community care without sufficientfunds to meet their daily living expenses.All individuals who qualify as disabled pur-suant to Social Security Law are eligible toestablish a pooled income trust. SocialSecurity Law 42 USC §1382c(a)(3),defines the term “disability” as an “inabili-ty to engage in any substantial gainful activ-ity by reason of any medically determinablephysical or mental impairment.” See USC§1382c(a)(3). In order to use a PooledIncome Trust to shelter excess income forMedicaid purposes, a Medical Report forDetermination of Disability, Form DSS-486T, must be completed by the Medicaidapplicant’s physician and submitted to theappropriate Social Services department forapproval.

Allowing the use of the Pooled IncomeTrust to shelter excess income has madestaying at home a much more viable optionfor many elderly and disabled. As the cost

Melissa Negrin-Wiener


COURT NOTES

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Serving the Trust & Estate Communityfor 28 Years


____________________By Eugene D. Berman

This month we discuss theUnited States Court of Appealsfor the Second Circuit’s decisionin Wagner & Wagner, LLP v.Atkinson, Haskins, Nellis,Brittingham, Gladd & Carwile,P.C., No. 08-4966-cv, (2d Cir.February 18, 2010), in which thecourt affirmed the reduction ofcontingency agreement attorney’s feesoccasioned by a fee splitting agreementthat violated DR 2-107 of the former Codeof Professional Responsibility.1 DR 2-107(A) provided:

A lawyer shall not divide a fee for legalservices with another lawyer who is not apartner in or associate of the lawyer's lawfirm, unless:

The client consents to employment ofthe other lawyer after a full disclosure thata division of fees will be made.

The division is in proportion to the ser-vices performed by each lawyer or, by awriting given the client; each lawyerassumes joint responsibility for the repre-sentation.

The total fee of the lawyers does notexceed reasonable compensation for alllegal services they rendered the client.

In Wagner, an injured child’s fathercontacted an attorney (“Baurkot”) con-cerning legal assistance. After their con-versation, Baurkot contacted the Wagner& Wagner, LLP law firm (“Wagner”).The child’s parents thereafter met withand retained Wagner on a one-third con-tingency-fee basis. Baurkot and Wagnerthen executed an agreement specifyingthat any recovered fee would be splitbetween them with Wagner receiving two-thirds and Baurkot receiving the balance.

Atkinson, Haskins, Nellis, Brittingham,Gladd & Carwile, P.C. (“Atkinson”), anOklahoma firm with experience concern-ing the same type of injuries, then contact-ed Wagner concerning the case. As aresult, Wagner retained Atkinson, afterfirst consulting with Baurkot and theplaintiffs. Under their agreement,Atkinson would receive 35 percent of anycontingency fee received and Wagnerwould receive the remaining 65 percentthat it would share pursuant to its agree-ment with Baurkot.

With these agreements in place, theaction was commenced in the EasternDistrict of New York with Wagner ascounsel of record and Atkinson as leadcounsel. The litigation resulted in a$975,000.00 settlement that, after the pay-ment of fees, would fund an annuity in theinfant plaintiff’s name. Since the litiga-tion concerned an infant, the settlementrequired the court’s approval underEDNY Local Civil Rule 83.2.

At the infant compromise hearing,Atkinson requested 35 percent of the totalone-third contingency fee as set forth in itsagreement with Wagner. Of the remain-ing 65 percent of the total fee, Wagnerrequested two-thirds and Baurkot soughtone-third. The magistrate judge suasponte questioned whether DR 2-107 per-mitted Wagner to share its fee with

Baurkot. Among other reasons,the magistrate judge was con-cerned because she had neverheard of Baurkot before hisshare of Wagner’s fee was dis-closed – the day before theinfant compromise hearing – ina supplemental petition.

Thereafter, in her Report andRecommendation, the magis-trate judge acknowledged that

the plaintiffs’ retainer agreement withWagner provided for a one-third contin-gency fee. She also found that Wagner’sand Atkinson’s fee requests were reason-able. But finding a violation of DR 2-107,she denied Baurkot any portion of theattorneys’ fees. The magistrate judgeadditionally determined that Wagnershould not be awarded Baurkot’s claimedportion of the fee. Instead, she viewedthat that sum should be awarded to theplaintiffs. After Wagner and Baurkot filedobjections, the district judge adopted theReport and Recommendation.

On appeal, Wagner and Baurkot urgedthat the district court erred (i) when itlooked beyond the plaintiffs’ contingencyagreement with Wagner to the fee splittingagreement; (ii) when it found the DR 2-107 violation; and (iii) when it alteredWagner’s and Atkinson’s 65%-35% pro-portional division by awarding Baurkot’sportion to the plaintiffs. The SecondCircuit rejected all three arguments.

The court reasoned that a district courthas broad authority in an infant compro-mise hearing and “is not excluded fromconsidering the division of … fees amongthe various attorneys.” Wagner, 2010 WL547526*4. Indeed, with respect to attor-ney’s fees concerning infant settlements,Local Civil Rule 83.2(a)(2) provides:

The court shall authorize payment tocounsel for the infant … of a reasonableattorney’s fee … from the amount recov-ered in such an action … and shall deter-mine the said fee … after due inquiry as toall charges against the fund.

The Second Circuit also distinguishedcases that have refused to alter attorneys’fee splitting agreements based on DR 2-107 violations. The court explained thatthe decisions that the appellants citedinvolved disputes between attorneysrather the court’s exercise of discretion indetermining appropriate fees in an infantcompromise hearing.

After finding that the district court cor-rectly determined that the Wagner-Baurkot arrangement violated DR 2-107because there was no informed client con-sent and Baurkot performed no services ofvalue on the case, the Second Circuitupheld the district court’s alteration of theWagner-Atkinson split since Wagner“engaged in an ethical violation by failingto get the proper consent from the plain-tiffs.” Wagner, 2010 WL 547526*6.

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

1 The Disciplinary Rules, previously codified at 22NYCRR §§ 1200.1-1200.46, were repealed when thecurrent Rules of Professional Conduct, 22 NYCRR§ 1200, became effective on April 1, 2009. TheSecond Circuit noted that the “revisions would notaffect the outcome in this matter [because t]he princi-ples embodied in former DR 2-107 are now containedin Rule 1.5(g)-(h).”

An Untoward Split

Eugene D. Berman

SECOND CIRCUIT BRIEFS

DEPINTO NORNES & ASSOCIATES, LLP

445 Broad Hollow Road, Suite 200, Melville, New York 11747

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APPEARANCES IN QUEENS COUNTY

E-mail: [email protected]

Diana C. GianturcoATTORNEY AT LAW


______________By Rhoda Selvin

The Suffolk County Bar Association’sPro Bono Project, which provides legal rep-resentation to the indigent, has been wellpublicized. Less well known is SCBA’sback-up program—the Modest MeansPanel, which serves prospective clients infamily law related matters whose incomeand assets are just above the stringent fed-eral poverty guidelines, the basic require-ment for Pro Bono Project representation.

Miriam Pismeny, managing attorney ofthe Pro Bono Project, explained the genesisof the Modest Means program saying, “Inthe first few years of the Pro Bono Project’sexistence we felt sorry for the financiallydistressed people who just missed the fed-eral cut-off. So thanks to the SCBA and

Suffolk County Bar Pro Bono Foundationboards working together, the ModestMeans Panel was born. It’s a great comfortto have a place to send clients with familylaw issues when the Pro Bono Project isunable to serve them.”

The route for clients to reach the Panelstarts with a phone call to the Pro BonoProject. Based on the information providedduring that conversation and recorded onthe “Modest Means Panel Application andReferral Form,” PBP suggests that the per-son, though too well off for pro bono repre-sentation, is probably eligible for SCBA’sModest Means Panel. The PBP staff thensends a copy of the completed form to thecaller for verification. When the signedform is verified and returned, PBP forwards

it to SCBA’s Lawyer Referral Service; thereferral service then refers the client to aModest Means Panel lawyer. Having gonethrough these preliminary steps, the clientmakes an appointment with that lawyer andbrings two copies of the form to the firstmeeting.

The MMP lawyer charges $25 for the ini-tial consultation and, if he or she accepts thecase, executes a special retainer agreement,which requires an additional payment of a$1,000 for defendants or $1,450 for plain-tiffs. The $1,000 is the retainer fee, whichentitles the client, defendant or plaintiff, toa minimum of five hours and a maximum of10 hours of legal services. The extra $450that plaintiffs pay at that time is for out-of-pocket costs and disbursements. Any legal

service beyond 10 hours is charged at therate of $100 per hour plus costs and dis-bursements.

Melissa McManaman, the LawyersReferral and Information Services adminis-trator receives an average of two calls a weekwith Modest Means Panel requests. Shereports that, although not all the clients fol-low through, a higher percentage of clientswho ask for a Modest Means Panel referralactually retain the attorney than do clientswho ask for a matrimonial attorney referral.

Attorneys interested in joining theModest Means Panel should get a LawyersReferral Service application from Ms.McManaman at (631) 234-55ll, ext. 227.Be sure to check off Modest Means Panelon the form.

Modest Means Panel

___________________By: Leo K. Barnes Jr.

A recent mid-winter decision fromCentral Islip Eastern District Judge SandraFeuerstein provides a stark reminder tocounsel for Plaintiffs to scrutinize docu-mentation annexed as exhibits to aComplaint as the same may later haunt thePlaintiff as a basis for dismissal.

In Levista Inc. v. RanbaxyPharmaceuticals Inc., 2010 WL 438393(E.D.N.Y. 2010), Plaintiff Levista, based inHuntington, filed an action againstRanbaxy premised upon Ranbaxy’s allegedbreach of an agreement to sell and deliver25,008 bottles of Cephalexin at $19 per bot-tle. Plaintiff acknowledged that Ranbaxysold and delivered 14,618 of the 25,008bottles purchased, but asserted that insteadof delivering the remainder, Defendant soldthe 10,390 outstanding bottles to Plaintiff’scompetitors at a higher price. On that basis,Plaintiff pursued a breach of contract claimand a tortious interference with businessrelations claim, claiming $1,000,000 indamages. Defendant filed a F.R.C.P.12(b)(6) motion to dismiss for failure tostate a claim.

In outlining the Standard of Review, thecourt noted that it is required to “liberallyconstrue the claims, accept all factual alle-gations in the complaint as true, and drawall reasonable inferences in favor of thePlaintiff.” But, citing the United States

Supreme Court decisions inTwombly (2007) and Iqbal(2009), Judge Feuerstein alsoobserved that a Complaint thatmerely offers “labels and conclu-sions” or a “formulaic recitationof the elements of a cause ofaction” is insufficient pursuant tothe Supreme Court’s recent direc-tives, and that corresponding fac-tual allegations “must be enoughto raise a right of relief above the specula-tive level”.

The court evaluated the documentationannexed as exhibits to the Complaint,including purchase orders from Plaintiff toDefendant between May 21 and May 27,2008, along with the related invoices thatDefendant sent to Plaintiff upon shipment.It was the court’s evaluation of the pur-chase orders annexed as exhibits to theComplaint which sounded the death knellfor the Plaintiff’s breach claim.Specifically, the court noted that the May21st purchase order for 3,668 bottles of theCephalexin, coupled with the Defendant’scorresponding invoice, confirmed that thatthe product was paid in advance by thePlaintiff and that the bottles were shippedby Defendant. Concluding that both par-ties fulfilled their obligations, Plaintiffcould not premise a breach claim on thattransaction. The court reached the sameconclusion on another series of transac-

tions, all premised upon the doc-umentation annexed to theComplaint, and universally con-cluded that all obligations to beperformed were indeed met.Thereafter, one transactionremained in dispute.

On the disputed transaction,purchase order 242, Plaintiffclaimed that it ordered an addi-tional 10,590 bottles of

Cephalexin and submitted the correspond-ing purchase order as an exhibit. However,unlike the previous transactions, Plaintifffailed to allege that it paid for this particu-lar shipment, and Plaintiff was unable todocument an invoice rendered by theDefendant, as it had been able to do on allprior transactions. In fact, Plaintiff did notallege that the Defendant had accepted theorder. The telling hole in Plaintiff’s claimfor this particular transaction is that it didnot allege that it performed its paymentobligation under the contract, which it haddone in each of the parties’ prior transac-tions. Rather, whereas the prior purchaseorders indicated that an advance paymenthad been made, the purchase order for thedisputed claim indicated that a 50 percentpayment was required “upfront” with theremaining 50 percent “on the receipt of thegoods.” The court specifically highlightedthis inconsistency and noted that all priortransactions required “advance payment”on its invoices, and rejected the Plaintiff’scontention that Plaintiff’s readiness to per-form its payment obligation for that partic-ular purchase order was sufficient to meetits obligations pursuant to the contract(which, on its face, required a 50% advancepayment). Accordingly, the court dis-missed the breach of contract claim.

Next, the court addressed Plaintiff’s sec-ond cause of action, which it characterizedas a claim for tortious interference withprospective business relations, premisedupon the allegation that the Defendant,instead of selling the product to thePlaintiff, circumvented the Plaintiff andsold that same product to the Plaintiff’scustomer.

An at-will relationship can support anaction premised upon tortious interference

with prospective business relations.Indeed, Judge Feuerstein, in analyzing thecause of action, cited Carvel Corp. v.Noonan, 3 N.Y.3d 182, 785 N.Y.S.2d 359(2004), which authority highlighted thedistinctions between the protection ofrights granted in a contract and the protec-tion of rights inferred from prospective,extra-contractual relationships such as anat-will employment agreement. Recoveryis permissible for tortious interference withprospective business relations premisedupon an at-will agreement, assumingPlaintiff can plead in accordance with itsTwombly and Iqbal burdens.

To establish a claim for tortious interfer-ence with a prospective business relation-ship, New York Pattern Jury Instruction3:57 provides that Plaintiff must satisfyfive elements: (1) that the Defendant knewof the proposed contract between thePlaintiff and [a third party]; (2) that theDefendant intentionally interfered with thatproposed contract; (3) that were it not forthe Defendant’s interference, the proposedcontract would have been entered into; (4)that the Defendant’s interference was doneby wrongful means; and (5) that thePlaintiff suffered damages as a result.

As Judge Feuerstein concluded, to estab-lish successfully element number four,wrongful means, Plaintiff bears the burdenof demonstrating “culpable conduct”which essentially amounts to a crime orindependent tort on the part of theDefendant. Premised upon the “wrongfulmeans” element, the death knell forPlaintiff’s tortious interference claim wastwo-fold: first, there was no pleading tocharacterize conduct which constituted“wrongful means;” second, Plaintiff admit-ted that the Defendant’s motive was simply“normal economic self interest … to makeitself more profitable.” On that two prongbasis, Judge Feuerstein ruled that thePlaintiff’s claim in Levista was insufficientas a matter of law and the court likewisedismissed the second cause of action asfailing to state a claim.

Note: Leo K. Barnes Jr., a member ofBARNES & BARNES, P.C., can be reached [email protected]

Death (or Dismissal) By Exhibits & Admissions

Leo K. Barnes Jr.

COMMERCIAL LITIGATION

PRO BONO

been amended further. Next month’scolumn will address the new proceduralaspects of the statute.

Note: Eileen Coen Cacioppo is a grad-uate of St. John’s Law School with 31years of experience in the practice oftrusts and estates, elder law, guardian-ship, and related areas. She is a past Co-Chair of the Elder Law Committee of the

Suffolk County Bar Association, a pastCourt Examiner, and currently is the Co-Chair of the Curriculum Committee of theSuffolk Academy of Law, having served asits treasurer and officer.

1 7 N.Y.3d 244, 852 N.E.2d 138, 2006 2 GOL §5-1505(1) 3 GOL §5-1510(2) 5 GOL §5-1502A, GOL §5-1502B, GOL §5-1502C

New York’s New Power ofAttorney Statute (Continued from page 8)


___________________By Robert M. Harper

Many practitioners are aware thatEstates, Powers and Trusts Law (“EPTL”)section 5-1.1-A codifies the right of elec-tion, which entitles a surviving spouse totake a portion of a decedent’s estate in cer-tain instances. What they may be sur-prised to learn is that even the posthumousannulment of a marriage or declaration ofa divorce does not extinguish a survivingspouse’s right of election. This article dis-cusses the impact of a posthumous annul-ment, revocation or declaration of divorceon a surviving spouse’s right of election.

The Statutory Right of Election

EPTL section 5-1.1-A bestows upon asurviving spouse the right to elect againsta share of a decedent’s estate in certain cir-cumstances.1 Under EPTL section 5-1.2,the right of election is exercisable, exceptto the extent that:(1) A final decree or judgment of divorce,

of annulment or declaring the nullity ofa marriage or dissolving such marriageon the ground of absence, recognized asvalid under the law of this state, was ineffect when the deceased spouse died.

(2) The marriage was void as incestuousunder . . . the domestic relations law,bigamous under [the domestic relationslaw], or a prohibited remarriage under[the domestic relations law].

(3) The spouse had procured outside ofthis state a final decree or judgment ofdivorce from the deceased spouse, ofannulment or declaring the nullity of themarriage with the deceased spouse or

dissolving such marriage on theground of absence, not recog-nized as valid under the law ofthis state.

(4) A final decree or judgment ofseparation, recognized as validunder the law of this state, wasrendered against the spouse,and such decree or judgmentwas in effect when the deceasedspouse died.

(5) The spouse abandoned the deceasedspouse, and such abandonment contin-ued until the time of death.

(6) A spouse who, having the duty to sup-port the other spouse, failed or refusedto provide for such spouse though he orshe had the means or ability to do so,unless such marital duty was resumedand continued until the death of thespouse having the need of support.2Notably, Section 5-1.2 does not address

the effect of a posthumous annulment ordeclaration of divorce on a survivingspouse’s right of election.3

Posthumous Annulment and theRight of Election

New York courts have consistently heldthat the posthumous annulment of a mar-riage has no bearing on a survivingspouse’s right of election.4 For example,in Matter of Berk, the decedent married hiscaregiver of ten years in June 2005.5 Afterthe decedent’s death, at the age of 100, inJune 2006, the decedent’s sons petitionedto have his Last Will and Testament admit-ted to probate. Subsequently, the dece-dent’s caregiver asserted her right to elect

against the decedent’s estate ashis surviving spouse.

Although the decedent’s sonscontested the validity of themarriage, the caregiver movedfor summary judgment andKings County Surrogate DianaJohnson ruled in her favor. Asthe Surrogate explained, “thegranting of a postdeath annul-ment herein would not defeat

[the caregiver’s] right of election as a sur-viving spouse as [her] right to elect againstthe estate became fixed and unalterableupon [the decedent’s] death.”Accordingly, since the caregiver’s right toelect against the decedent’s estate couldnot be disturbed by a posthumous annul-ment, she was entitled to summary judg-ment concerning her claim to an electiveshare of the decedent’s estate.

Surrogate Johnson reached a similarconclusion in Matter of Atiram, where thedecedent’s surviving spouse sought toelect against his estate.6 After the execu-tor of the decedent’s estate commenced aproceeding to determine the validity of thespouse’s election, the spouse moved forsummary judgment. In opposition to themotion, one of the devisees under thedecedent’s Last Will and Testamentargued that the decedent divorced the sur-viving spouse. The basis for the devisee’sassertion was the decedent’s Jewish reli-gious divorce or “Get” from the survivingspouse.

Surrogate Johnson granted the survivingspouse’s motion. In doing so, theSurrogate explained that a Get is notenforceable under New York law and

rejected the devisee’s reliance on an Israelicourt’s posthumous declaration that thedecedent and spouse divorced each other“as Jews”. As Surrogate Johnson noted,the Israeli court’s posthumous decisionwas immaterial, since the survivingspouse’s right of election “became fixedand unalterable upon” the decedent’sdeath. Accordingly, the Surrogate con-cluded that the surviving spouse was enti-tled to summary judgment concerning herright to elect against the decedent’s estate.

Conclusion

The import of the Berk and Atiram deci-sions is that the posthumous annulment ofa marriage or declaration of divorce isinsufficient to defeat a surviving spouse’sright of election. The surviving spouse’selective share rights are fixed and unalter-able upon the decedent’s death and, ingeneral, efforts to defeat them will provefruitless.

Note: Robert M. Harper is an associatein the Trusts and Estates department atFarrell Fritz, P.C. He also serves as co-chair of the Bar Association’s MembershipServices and Activities Committee.

1 N.Y. E.P.T.L. § 5-1.1-A(a).2 N.Y. E.P.T.L. § 5-1.2.3 In re Wang, 20 Misc.3d 691, 695, 864 N.Y.S.2d

710 (Sur. Ct., Kings County 2008). 4 Bennett v. Thomas, 38 A.D.2d 682 (4th Dep’t

1971); Matter of Dominguez, 2002 WL 31844696(Sur. Ct., Bronx County 2002); Parente v. Wenger,119 Misc.2d 758 (Sup. Ct., New York County 1983).

5 Matter of Berk, 20 Misc.3d 691 (Sur. Ct., KingsCounty 2008).

6 Matter of Atiram, 25 Misc.3d 1231(A) (Sur. Ct.,Kings County 2009).

Posthumous Annulment and the Right of Election

Robert M. Harper

_______________________By William E. McSweeney

"Neither party," wrote Lincoln, in hisSecond Inaugural Address, "expected forthe war, the magnitude, or the duration,which it has already attained." Indeed, atthe outset of our Civil War, each partyanticipated an expeditious, favorable, out-come. And each hoped for a great, singular,decisive clash of arms wherein the enemyarmy would be destroyed, in the manner ofNapoleon's victories at Austerlitz and Jena-Auerstadt. But, according to author RussellF. Weigley, in his compelling A Great CivilWar: A Military and Political History,

1861-1865, such hope, on the part of theSouth, was dashed by technology.

The bores of Union field guns and shoul-der arms were now being rifled; shells andbullets could consequently be fired fromlong range and with great accuracy, thus

nullifying the effectiveness of afrontal assault by great masses oftroops. The ineffectiveness of thefrontal assault against an entrench-ed position, with its defendersusing this modern weaponry, wasproven at Gettysburg with the out-come of Pickett's charge--its futil-ity underscored by its carnage.___________________________A Great Civil War: A Militaryand Political History, 1861-1865.

By Russell F. WeigleyWith maps, notes, bibliography and index. 612 pp. Indiana University Press. ISBN# 0-253-33738-0.__________________________________

Moreover, while the goal of war, thedestruction of the enemy army, remainedthe same, the North put into place a novel,dual strategy for affecting that goal. Theform it took, with respect to Grant, was ulti-mately one of attrition: the continuous bear-ing down upon the enemy, the decimatingof his troops, by means of superior num-bers--numbers which Congress, throughsuccessive Conscription Acts, kept steadyand predictable. Complementing Grant'sdirect means were those employed bySherman: indirect, largely non-confronta-tional, marked by the destruction of the

enemy's resources and the con-sequent erosion of the popularwill needed to support an army.

And at the top, asCommander-in-Chief, forcingthe issue for four years was theformer militia captain, thelawyer, the rhetorician, thepolitician nonpareil: Lincoln.He brilliantly conjoined themoral with the tactical. His

Gettysburg Address--"this nation ...shallhave a new birth of freedom"--redefinedAmerica; it supplanted the Declaration ofIndependence as the document definingour national purpose. The Address effect-ed a transmutation -- a war waged to pre-serve the Union ascended to a crusadeundertaken to end slavery; the Union sol-dier, after an initial uncertainty, ultimatelywore with pride this mantle of emancipa-tor. In short, the Union was, after 1863,after the Emancipation Proclamation andthe Address, clearly on the side of theAngels. Victory belonged to that side.

This isn't to say that in terms of couragethat both sides weren't met as equals. Butthe South was hampered by many factors,not the least being, paradoxically, overmobilization. They had too large an armywith too few civilians to act as support.The South's resources, moreover, were toomeager to sustain the long haul that a war

can be. Not even Lee (the equal of anyfield commander who possessed theunderstanding of the need to define andcling to a grand strategy of war) couldovercome these ingrained, overridinghandicaps.

As to Grant and Sherman, Lincoln foundin them what he had sought since Sumter,men who would, each in his own way, vig-orously prosecute the War to its conclu-sion. It was a fateful symbiosis. Their bat-tlefield successes assured Lincoln's reelec-tion, itself guaranteeing the President'sunbounded, continuing support of his war-riors. And victory came.

Russell F. Weigley has set forth in onevolume a clear, gripping account of thevarious battles that constituted the War;the warriors in blue and gray--rich, quirky,brilliant, and heroic--who fought thosebattles; and the statesmen and scoundrelswho occupied government positions onboth sides of the Mason-Dixon Line. AGreat Civil War: A Military and PoliticalHistory, 1861-1865 is an outstandingbook.

Note: William E. McSweeney is a mem-ber of the SCBA and practices Criminaland Family Law. His written work hasappeared in the Quinnipiac Law Review,The ABA Journal, The New York LawJournal, and The New York Times.

Lincoln and His Generals: A Fateful Symbiosis

William E. McSweeney

BOOK REVIEW

TRUSTS AND ESTATES

Russell F. Weigley has setforth in one volume aclear, gripping account ofthe various battles thatconstituted the War…

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Recognizing Supreme and County Court Judiciary The SCBA Executive

Committee hosted the firstof two dinner receptions atCafe Rustica in recognitionof the Supreme and CountyCourt Judiciary to thankthem for their commitmentto the SCBA and the prac-tice of law in SuffolkCounty. Next month’s din-ner reception will recognizeSuffolk County’s Familyand District Court Judges.

Justice Mark D. Cohen and SCBA President Ilene Cooper share a lightmoment.

SCBA director-elect Justice William Rebolini, Justice Hector D. LaSalleand Justice Joseph Pastoressa.

Justice Donald R. Blydenburg and Justice Elizabeth Emerson.

SCBA Director-Elect Justice William Rebolini, SCBA President Ilene Cooper,Justice Paul J. Baisley Jr., President Elect Sheryl Randazzo, and JusticeHector D. LaSalle.

Enjoying there evening were, from left, SCBA Secretary-Elect DonnaEngland, Jane LaCova, Justice Donald R. Blydenburgh and Justice ElizabethEmerson.

Suffolk County Administrative Judge H. Patrick Leis III, Justice Andrew A. Crecca, and Justice CarolMackenzie.

SCBA First Vice President Matthew Pachman, Justice Mark D. Cohen, Judge Barbara Kahn, Justice C.Randall Hinrichs and Justice Thomas F. Whalen.


Recognizing Supremeand County Court Judiciary

Judge Martin I. Esman, Justice Thomas F. Whelan, President-Elect Sheryl Randazzo, JusticeWilliam Rebolini, Justice Paul J. Baisley Jr., Justice Arthur G. Pitts and Justice John JJ Jones,Jr.

Judge Glenn A. Murphy, Judge Barbara R. Kahn, Judge Gigi A. Spelman, Judge W. GerardAsher, and SCBA Secretary William t. Ferris.

Justice Thomas F. Whelan, Justice Joseph Pastoressa and SCBA Secretary ElectDonna England.


_________________By Craig D. Robins

Last month I discussed the difficultiesthat Congress created by enacting a meanstest statute. In this month’s column I willhighlight some recent bankruptcy courtdecisions that shed light on interpretingwhat is “income” for means test purposeswhen a debtor receives a bonus, earns ateacher’s salary, or obtains unemploymentinsurance benefits.

The purpose of the means test is to createa projection of the debtor’s net income andexpenses for a period of three to five yearsafter the filing date to see if the debtor wouldhave sufficient surplus funds to make somekind of reasonable payment to creditors. Indoing so, the starting point is to ascertainwhat the debtor’s income was during thesix-full-month pre-petition calendar period.

When you only look at a six-month peri-od to project the next three to five years ofincome, you often get a lopsided result. Forexample, if the debtor received a bonus inthe prior half-year, his means test wouldeffectively double this income because themeans test would assume that the bonuswould be paid every six months.Conversely, if the debtor waited more than

six months after receiving thebonus to file the bankruptcy peti-tion, the debtor would not evenhave to count the bonus as incomein the means test.

Because of this uneven result,bankruptcy attorneys often engagein a strategy of timing the filing ofthe petition. However, it seemsthat some bankruptcy courts arebecoming more logical in theirapproach to analyzing the statuteto provide a more balanced result for allparties.

A recent case from Virginia looked at adebtor who received an annual bonus in thesix-month pre-petition means test period.The court held that the bonus should be pro-rated over a 12-month period to determinethe amount necessary to calculate thedebtor’s “current monthly income.” In reMeade, —— B.R. ——, 2009 WL4456211 (Bankr. W.D. Va., Nov. 13, 2009).

The court concluded that the language“average monthly income,” which is foundin Bankruptcy Code section 101(10A)(A) issusceptible to two interpretations. One ofthem is the mechanical example I gaveabove, which can result in either a harsh

result for the debtor or a windfall. However, the court adopted a

different, more realistic “com-mon sense” interpretation, whichthe court said was more in keep-ing with what appeared to be theoverarching purpose of theBankruptcy Abuse Preventionand Consumer Protection Act of2005, namely, to require debtorsto make meaningful payments totheir creditors if they have the

funds to do so.The court felt that Congress intended for

there to be some connection between thecompensation received and the period oftime in which the applicable services forsuch compensation were rendered.

With regard to the concept that under anydifferent interpretation, debtors’ attorneyswould want to time the filing of theirclients’ cases, the judge said, “It is difficultto believe that Congress intended such aresult or desired to encourage such tactics.”

The Meade case also addressed thewife’s income, who, as a public schoolteacher, received her annual salary over aten-month period.

Here the court took a totally different

approach by refusing to pro-rate the wife’sincome. The court said that this situationwas well within the framework provided byCongress of looking to the income actuallyreceived during the six month period priorto bankruptcy as the best measure of adebtor's ability to pay creditors.

This approach provides a lopsided result,but not as severe as the lump-sum bonuspayment. Based on this court’s holding, ateacher seeking bankruptcy relief would bebetter off reverting back to the strategy oftiming the filing so that the petition is filedjust a few months after the non-incomesummer months.

The means test enables a debtor toexclude from income unemployment bene-fits that are received under the SocialSecurity Act. A recent Illinois case heldthat unemployment benefits should not beincluded in this exception to income, andshould thus be treated as income for themeans test. In re Kucharz, 418 B.R. 635(Bankr. C.D. Ill., Oct. 28, 2009).

To complicate matters, the court, afterproviding a highly detailed history ofunemployment benefits in this country,cited two bankruptcy decisions from 2007

What is “Income” for Means Test Purposes?Some recent court decisions define “income”

Craig D. Robins


CONSUMER BANKRUPTCY

____________________By David A. Mansfield

Several problems frequently arise for adefense attorney handling an alleged viola-tion of Vehicle and Traffic Law $1192(3).The basic fact pattern for this discussionwill be a first offense for §1192(3)(4)(4a)unless otherwise mentioned.

A common issue that can have far reach-ing consequences for your client occurswhen the Chemical Test Refusal Hearing isheld pursuant to §1194. The minimum peri-od of revocation is one year for a firstoffense committed on or after November 1,2006. The problem arises when theChemical Test Refusal Hearing is resched-uled on the walk-in calendar or first datebecause the officer is not available. Thegood news is that your client’s license willbe restored by operation of law and the sus-pension terminated on the officialDepartment of Motor Vehicles recordswithin a few days.

Your client may then apply for a dupli-cate license, as it usually will take a mini-mum of six weeks for the Department ofMotor Vehicles to return a previously sur-rendered license by mail.

The rescheduling of the chemical testrefusal hearing gives the defense lawyersome flexibility in seeking to work out adisposition of the case. The advantage ofthe case being rescheduled at the request ofthe police officer is that it may be possible,depending upon the circumstances of theparticular case, for your client to maintaindriving privileges until sentencing.Additionally, the client may be eligibleupon sentencing for a conditional licenseeven if pleading guilty or found guilty ascharged of a violation of §1192(3).

The rescheduled date of the Chemical

Test Refusal Hearing can varyfrom 45 to 90 days, which seemsto be typical, to 12 to 18 months.The hearing may occur long afterthe underlying criminal charge hasreached a disposition or a trial.The rescheduling of the ChemicalTest Refusal Hearing is dependenton two factors: the availability ofthe administrative law judge andthe schedule of the arresting offi-cer. The Department of Motor Vehicles willgive your client about 30 days advancenotice of the hearing under 15 NYCRRPart§127.1.

Your client may have had full licenseprivileges restored or be eligible for restora-tion of full license privileges in the short-term. The Notice of Hearing sets in motiona process that can lead to the extension ofthe conditional license for a year from thedate of the hearing or the revocation of alicense with a waiting period for theDepartment of Motor Vehicles to generate afinding sheet and order of revocation withadvice about eligibility for a conditionallicense.

Please note: whether or not your clientwill get a post-conviction conditionallicense will depend upon the actual sen-tence imposed and dictated by theConditions of Adult Probation. A condi-tional discharge normally means the clientwill be granted a conditional license.

The defense lawyer must -- upon reach-ing a disposition of the underlying criminalcharge by plea, bench trial, or jury verdict -- have the client sign an original chemicaltest refusal hearing waiver.

The waivers are available from the SafetyHearing Bureau in Albany and the localSafety Hearing Office in Hauppauge. The

waiver must be sent in originalform to the Department of MotorVehicles Division of Safety andBusiness Hearings (518) 474-1509. It is important to obtain acase number to attach to thewaiver to ensure proper credit.

The original waiver should besent to the Department of MotorVehicles at the time of sentenc-ing if your client was not grant-

ed a 20 day stay, or 20 days after your clientwas sentenced if granted the stay. This willallow the chemical test revocation to runconcurrent as much as possible with theunderlying sanction imposed in court.

Should there be an underlying issue yourclient wants to contest at the hearing thatbecomes a separate consideration. Thedefense counsel will want to wait with theconsent and cooperation of the court for thehearing before proceeding to a trial on thecriminal case.

Please note that it will the responsibilityof the defense lawyer to subpoena thepolice officer to appear on the subsequentrescheduled date of hearing to have theopportunity to cross-examine the officer.The administrative law judge can enter afinding of a refusal to submit to a chemicaltest based upon the Report of Refusal andother paperwork on file. Gray v. Adduci 73N.Y.2d 741, 536 N.Y.S.2d 40 (1988)

When the defense lawyer and the clientwant to take the criminal case to trial and thelicense is revoked after a Chemical TestRefusal Hearing at the beginning of theprocess, the defense lawyer should put in aregular and computer generated diary areminder approximately 10 months from thedate of the hearing to send the client a letterto make application for driver’s license rein-

statement by filing of an MV-44 or DriverLicense Application along with the appropri-ate civil penalty and reapplication fee. Yourclient should file 11 months from the effec-tive date of revocation.

The same correspondence should be sentto your client if the license was revoked fora minimum of one-year for a zero tolerancerefusal, which is an administrative only pro-ceeding, under §1194-a.

Experience has shown it may take longerthan the minimum one-year period to bringa matter to trial. The reapplication withinthat period of time will allow you to giveyour client the maximum opportunity toobtain reinstatement of driving privilegesand the application made within one yearmay allow the Department of MotorVehicles to waive the all relevant writtenand road tests. This would speed up theprocess of relicensing by several months.Should the criminal case still be pendingyour client should be advised to pay themandatory driver responsibility assessmentin the amount of $750 if financially able todo so in full prior or minimum amountrequired prior to submitting the application.

Please note that a driver who has a prioralcohol related incident within l0 years ofthe date of the application will be requiredto submit satisfactory evidence of alcoholevaluation and rehabilitation in accordancewith 15 NYCRR Part §136.1 (b) (3) (4) inorder to clear the revocation.

The defense attorney must plan defensestrategy based upon a sequence of eventstriggered by the Chemical Test RefusalHearing.

Note: David Mansfield practices inIslandia and is a frequent contributor tothis publication.

Recurring Practice Issues With Chemical Test Refusals

David A. Mansfield

DMV

____________________By Justin A. Giordano

The United States Supreme Court in theCitizens Unites v Federal ElectionCommission (FEC),130 S. Ct. 876 (2010)by a 5 to 4 decision, rejected limits on cor-porate and unions’ spending on political(and issue driven) campaigns on January21. This decision essentially reverses androlls back some limitations imposed oncorporate and organized labor’s spendingsince the post Watergate era of the mid-nineteen seventies. It also touches upon,but does not outright reject, the constraintsagainst direct contributions to individualcandidates from said corporate and laborentities imposed by the 2002 McCain-Feingold legislation.

The critics, primarily Democrats, andtheir allies, as well as the President of theUnited States, lamented this decision andwarned of dire consequences to our elec-tion process. The most common chargelevied is that corporations in particular willovertake the process through the infusionof vast amounts of money to get politiciansfavoring and outright endorsing their self-serving interests.

The five authors of the majority opinion(Justices Scalia, Thomas, Alito, Roberts,and Kennedy, who wrote the majorityopinion) have made clear that their deci-sion is strictly based on the “FirstAmendment” and “free speech” and thedoctrines that they embody. JusticeKennedy wrote in his decision that “Thecensorship we now confront is vast in itsreach.” He further added the following:“By suppressing the speech of manifoldcorporations, both for profit and non-prof-it, the government prevents their voicesand viewpoints from reaching the publicand adding voters on which persons orentities are hostile to their interests.” Hewent on to point out that “rapid changes intechnology, including blogs and social net-working websites, that now provide peoplewith information on candidates.” JusticeKennedy thus underscored that the FirstAmendment does not permit Congress tomake any distinction between the contextsof this type of political speech or distin-guish between the corporate or non-corpo-rate identity of the speaker.

The four dissenting Justices, Breyer,Sotomayor, Ginsburg, and Stevens, whowrote the dissenting opinion, based theirargument on deferring to Congress in situ-ations such as these.

Chief Justice Roberts took particularissue with the dissenting opinion and othercritics and in a separate and accompanyingopinion responded by pointing out that the1990 case, Austin v Michigan Chamber ofCommerce, 494 U.S. 652 (1990), and itsholding was flawed and thus the currentcourt was not lightly dispensing withprecedent. More specifically he wrote“There is a difference between judicialrestraint and judicial abdication.”

The case behind the holding

The case that gave rise to this importantdecision was first heard by the United

States District Court for theDistrict of Columbia and subse-quently wound its way to theUnited States Supreme Court viaa narrow challenge to the CitizensUnited video-on-demand offer-ing, which presented a scathingportrayal of Hillary RodhamClinton during the course of herunsuccessful 2008 campaign forthe nomination of the Democratparty for President of the United States.Federal regulators had originally main-tained that this constituted an electioncommunication and not just a documen-tary, thus making it subject to restrictionunder the campaign finance law that pro-hibited and barred ads funded by corpora-tions, which were aired close to an elec-tion. Citizens United appealed this rulingand ultimately the case made its way to theUnited States Supreme Court which firstheard it last March 2009. The Justices tookthis opportunity to hold a second hearingthat June where they opted to re-examinepast rulings regarding political electionsand corporate spending.

What the law was and this rulingchanges

The impact of the Citizens United vFederal Election Commission rulingshould be felt at the national level, namelyat the mid-term congressional elections of2010 and later in the 2012 presidential andcongressional elections. However there isalso another area where this impacts aswell, namely there are 24 states that havesimilar laws on the books and which willhave to face the reality that the SupremeCourt ruling invalidates all of these statelaws. This will be done either by theselaws being struck down as unconstitution-al in court or repealed by the legislaturesof those respective states.

A look at what the law was and what ityielded in comparison to what changes areexpected as a consequence of the January2010 High Court ruling shows the follow-ing:

In terms of campaign ads and advertis-ing, prior to this ruling, Federal lawbanned corporations and unions from dip-ping into their funds in order to pay for adsand/or other campaign oriented messages;for example, direct mail that directly sup-ports or opposes candidates running forpolitical offices. On the other hand, thelaw did prohibit these same corporationsand unions from advertising that didexpressly and directly support the electionor defeat of a given candidate.

This ruling by the Supreme Court nowoverturns that ban. Corporations andunions can now directly and openly sup-port individual candidates and there are nolimitations on spending with the only pro-viso being that these ads run completelyindependent of the candidate(s) that saidcorporation or union is supporting. Inother words, there cannot be any direct orsemblance of coordination between thetwo camps.

Campaign contributions: prior to thenew ruling, Federal law banned corpora-

tions and unions from utilizingcorporate and union funds tomake contributions to candi-dates running for federaloffices. The Supreme Court rul-ing did not speak to this issue atall and thus left the ban in place.

PACs (political action com-mittees): prior to the ruling, cor-porations and unions were per-

mitted to form said PACs for the purposeof raising money that could support thefull range of political activities includingdirectly supporting individual candidatesfor office. Said funds could be raised fromtheir own funds and those of their corpo-rate employees and union members.

The decision in Citizens United vFederal Election Commission did notaddress PACs, related issues and the appli-cation to the political realm. Therefore therules that were in place prior to this hold-ing remain intact.

In terms of its actual projected impact,surprisingly there seems to be an emergingconsensus arising. Conservatives, Repub-licans and their allies generally welcomedthis decision as a tool that could help levelthe playing field given that their opponentshave substantially outspent them in cam-paign cycles for over a decade. However,even among the Liberal ranks there seemsto be a growing realization that this deci-sion need not be interpreted to have a neg-ative impact to their side. In fact, KarenAckerman, political director of the AFL-CIO, did not seem particularly concerned

about the potentially negative impact ofthis decision on organized labor. SimilarlyJoseph Sandler, a lawyer specializing incampaign-finance, surmised that this rul-ing does not create or provide any partisanadvantage to one side or the other of thepolitical spectrum. More specifically, as itpertains to the Democrat side of the politi-cal aisle, it essentially frees their alliessuch as unions to tap into their substantialtreasuries to support them.

The governing principle vis-à-vis theFirst Amendment’s Free Speech Clause isthat the more free speech we have the bet-ter this serves to inform the public as wellas the individual, resulting in a robustdebate that ultimately results in a betterthought out decision. True, a robust dis-cussion does not necessarily lead to con-sensus, in fact history has shown that itusually does not, however the full airing ofstrongly held positions has been a longheld American tradition, which has been atthe core of maintaining and growing avibrant and highly successful representa-tive republic. Therefore, as the old adagegoes, “why mess with a good thing?”

Note: Justin A. Giordano is an attorneyand a Professor of Business & Law atSUNY-Empire State College. He teaches avariety of law, economic policy, and busi-ness courses.

For the curious and to view and hear acompletely different aspect of the writer’sactivities, please check his Justinag.comwebsite that features his original musiccompositions and accompanying story.

Surrogate’s CourtMary K. Kaneand Kurt P. Widmaier, Co-Chairs

The committee met on Feb. 24, a jointmeeting with the Tax Committee. Therewas a discussion on estate tax issues. Themeeting and speaker were well receivedby all members

Health & Hospital LawThomas J. ForceAnd James G. Fouassier, Co-Chairs

The committee met on Feb. 24 with thepurpose of discussing the agenda for theupcoming year.

It was agreed that the committee wouldoffer another CLE this summer and it wasagreed that the proposed topic would be"Medical Debt Issues for the GeneralPractitioner- The Consumers and ProvidersPerspective."

Topics to be discussed are proposed as:

* Anatomy of a Medical Bill (how to

read a medical and hospital bill)* Medical Coding Issues* Spousal Responsibility* Deceased Patients* Bankruptcy Issues* HIPAA Privacy Issues* Coordination of Benefits and Cobra

issues* Managed Care Appeals; New Managed

Care Law

A general discussion ensued about theNew Managed Care Law in New York andGovernor Corzine's New Jersey State Lawprohibiting providers from refusing toaccept assignment of benefits (compellingpayment directly to the provider).Information concerning these laws will bedistributed.

It was decided that a call in number willbe provided for those who can not attendthe next meeting. There will be adiscussion on the proposed CLE topic andany and all suggestions. The possibility ofwriting an article for The Suffolk Lawyerwill also be discussed.

COMMITTEE CORNER

News & Notes FromSCBA Committees


Campaign Spending Supreme Court Ruling End of an era or the beginning of a new one?

Justin A. Giordano

AMERICAN PERSPECTIVES


Across

1 Lat. among other things4 Freedom or exemption from penalty,

burden, or duty6 Against the law7 The individual who forms a legal enti-

ty for business purposes9 Access, entrance11 A person under 18 years old16 Lack of ability, knowledge, legal qual-

ification or fitness17 The grand jury's written accusation of a

crime18 To obstruct, hinder20 Imprisonment, confinement21 Needy, poor23 Not essential or necessary27 A court order prohibiting or requiring a

specified act28 Contrary to law30 What evidence is when it cannot be

admitted under established rules of law33 "That is"34 Lat. below, underneath35 Want of legal, physical, or intellectual

ability36 Contrary to standards of society;

obscene37 In evidence, a conclusion sought to be

established as a consequence of otherfacts

38 Incapable of being placed out or hired39 Evidence tending to establish guilt

Down2 Prohibited; unlawful3 Seized and taken into custody of law or

court4 Absence of knowledge5 Mutually contradictory, contrary to

one another6 A third-party action8 A possible sign10 A state of mind seeking a given result

through certain action

11 Used to indicate a previous reference12 To accuse; charge13 Imperfect, partial, unfinished14 When the court clerk makes list of

jurors selected for trial15 Written agreement issuing bonds

and/or debentures19 Disinterested, favors neither party

21 to disregard willfully22 One who leaves a country to perma-

nently settle in another23 Disproved or rebutted evidence24 To hold harmless, secure against loss

or damage25 To surround, fence, or hem in on all

sides

26 Near at hand28 Dying without a will29 To obtain delay for adjustment30 To weaken, make worse, lessen in

power31 In chambers, in private32 To arouse, urge, provoke37 Invitation For Bids

PUZZLE

Note: J. DavidEldridge, a member ofthe Law Office ofEdward M. Taylor inSmithtown, is an attor-ney experienced incivil, commercial andreal property law, liti-gation and appeals. A

past-Director of the Bar, he wasAssociate Dean of the Academy ofLaw and chaired its LegislativeReview Committee.

J. DavidEldridge

present evidence of the plaintiff during asimilar time when the plaintiff was notexperiencing or portraying extreme pain.

A parallel argument to the above chal-lenge to a day-in-the-life video is to attackthe video based on inaccuracy and self-serving behavior. Generally speaking, day-in-the-life videos are at their most admissi-ble when they depict the plaintiff perform-ing everyday activities, for example, mov-ing around the house, preparing meals, get-ting dressed, etc. Conversely, a day-in-the-life video that presents the plaintiff inunlikely scenarios and performing improb-able tasks should not be aptly entitled a“day-in-the-life” of the plaintiff and conse-quently barred from evidence.4 This beingsaid, a frequent objection to the day-in-the-life video is to argue that the video is sim-ply inaccurate as to the activities the plain-

tiff is performing in the video. Defensecounsel must be fully aware of the plain-tiff’s profile, including his living arrange-ments, profession, his hobbies before theaccident, and be on guard for the plaintiffpurposely representing himself in a situa-tion that does not reflect the true nature ofany damages sustained from the accident.

Furthermore, defense counsel must becognizant of the plaintiff engaging in self-serving behavior, which is better defined asthe plaintiff exaggerating the hardshipincurred from his injuries when performingactivities in the video. This is different fromthe above argument because here the plain-tiff is performing a routine activity, such asgetting dressed, but he is pretending orexaggerating the difficulty of this routinetask in order to garner sympathy from thejury. In order to combat self-serving behav-

ior, defense counsel must be acutely awareof the exact physical and mental limitationsthe accident has caused the plaintiff, andlook for behavior that is quite obviouslybelow the plaintiff’s capabilities.

Finally, there are several other challengesdefense counsel can make to a day-in-the-life video that, coupled with the above argu-ments, may be just enough to get the video,or at least portions thereof, barred from evi-dence. These include arguing the day-in-the-life video is cumulative evidence ofexpected testimony from the plaintiff, hisfamily and physicians regarding the injury.Other challenges include a family mem-ber’s presence in the video when such per-son is not typically part of the plaintiff’sdaily routine.

Defense counsel must be aware of thepotential of a day-in-the-life video to appeal

to a juror’s sympathy and therefore createfar larger judgments. By utilizing the afore-mentioned arguments in challenging thevideo, and at the very least insisting on alimiting instruction to the jury as to the rel-evance of the video, the defendant will havereduced the potential damage of the day-in-the-life video.

Note: Brian S. Condon is an associate atDevitt, Spellman, Barrett LLP. He is an2008 graduate of Hofstra University Schoolof Law.

1 Capara v. Chrysler Corporation, 71 A.D.2d 515,423 N.Y.S.2d 694 (3rd Dep’t 1979).

2 Grimes v. Employers Mutual Liability InsuranceCompany of Wisconsin, 73 F.R.D. 607 (D. Alaska1977).

3 Thomas v. C.G. Tate Construction Co., 465 F.Supp.566 (D.S.C. 1979).

4 Bannister v. Town of Noble, 812 F.2d 1265 (10th Cir.1987).

Evidentiary Challenges to the Day-in-the-Life Video (Continued from page 1)


THE SUFFOLK COUNTY BAR ASSOCIATION DIVERSITY COMMITTEE

proudly presents

ROXANA SABERIAuthor, Journalist

Discussing her experiences as related in her memoir:

“BETWEEN TWO WORLDS: MY LIFE AND CAPTIVITY IN IRAN”

Hers is the story of an American journalist who was abducted by four men while inIran.

Falsely accused of espionage and imprisoned, Ms. Saberi will discuss her individualbattle for freedom as well as the plight of many political prisoners in Iran held captive

for merely seeking such basic rights, as Freedom of Speech and Religion.

Introductory Remarks by Joye Brown, Journalist, Newsday

TUESDAY, MAY 11, 2010 - 6:00 PMGREAT HALL, SCBA BAR CENTER560 Wheeler Road, Hauppauge, N.Y.

$20/personDinner will be served.

Question and Answer period and Book Signing.Seating is limited: Reservations required. Contact the Bar Center at 234-5511 Ext

230 on or before Monday, May 3, 2010.

With Appreciation to our Principal Sponsor

With gratitude for the support of: * SIGN-A-RAMA-HUNTINGTON, NY * FARRELL FRITZ P.C

* ENRIGHT COURT REPORTING, INC

* GREGORY A. BLACK, ESQ.

* POSH PALATE CATERERS & EVENTS

Program Coordinator: Ilene S. Cooper, Esq., SCBA President Co-Chairs: Bronwyn M. Black, Esq. and Luis A. Pagan, Esq.

the appointment and substitution of a per-sonal representative

In Eleanor Gates v. Easy Living Homes,Inc., Elliot A. Baker, David Martin, JodiMartin, New York State Commission ofTaxation and Finance, Richard Olsend/b/a Richard Olsen Construction Co.,Vincent Faraci and Roseann Faraci, IndexNo. 25472/03, decided on May 12, 2009,the court granted defendants’/third partyplaintiffs’ motion for an order directing theSuffolk County Treasurer to release thesum of $10,000.00 previously paid into thecourt by them. In opposition to the motion,plaintiff contended that the motion shouldbe denied or held in abeyance pendingsubstitution of a duly appointed personalrepresentative for the defendant RichardOlsen who died. The court noted that as ageneral rule, if a cause of action survivedthe death of a party, such death divestedthe court of jurisdiction until a dulyappointed general personal representativewas substituted for the deceased party.Nevertheless, when a party’s demise does

not affect the merits of a case, there is noneed for strict adherence to the require-ment that the proceedings be stayed pend-ing substitution. As such, Mr. Olsen’smechanic’s lien was extinguished by oper-ation of law one year after its extension,and under these circumstances Mr. Olsen’sdemise did not affect the merits of thecase. Thus, there was no need to stay theaction pending the appointment and sub-stitution of a personal representative.

Motion for an order dismissing the com-plaint based upon failure to state a cause ofaction, and Statute of Limitations denied;Appellate Division decision found com-plaint as neither palpably improper norpatently devoid of merit; cross-motion toamend the complaint tolled the running ofthe Statute of Limitations until the date ofentry of the order granting plaintiff per-mission to add him as a defendant

In WMC Mortgage Corp. v. HendrikaVandermulen, 234 South Magee, Co., Inc.,Donald MacPherson, Carrie MacPherson,John Eugene Sheehan and Homecomings

Financial Network, Inc., Index No.371/05, decided on December 16, 2009,the court denied motion by defendantGuldi for an order dismissing the thirdamended complaint insofar as it is againsthim. The court noted that by order datedMay 29, 2007, the court granted the cross-motion by plaintiff for leave to serve a sec-ond amended complaint insofar as itsought to add Homecoming Financial as aparty defendant and to clarify the factualallegations in the amended complaint. Thecourt denied that portion of plaintiff’scross-motion which sought to add Guldiand McVann as defendants and to add aclaim for punitive damages. After plaintiffserved and filed its second amended com-plaint in accordance with this court’sorder, the Appellate Division, SecondJudicial Department, by order dated June23, 2009, reversed this court and foundthat plaintiff’s proposed second amendedcomplaint was neither palpably insuffi-cient nor patently devoid of merit insofaras it sought to add Guldi and McVann asparty defendants. Plaintiff served a thirdamended complaint against said defen-dants, and Guldi now moved to dismisssame. As such, the portion to dismiss thecomplaint based upon a failure to state acause of action was denied, as the decisionof the Appellate Division was binding onthis court. The portion of the motion whichsought to dismiss the complaint on thebasis that it was barred by the Statute ofLimitations was also denied, as plaintiff’scross-motion to amend the complainttolled the running of the Statute ofLimitations until the date of entry of theorder granting plaintiff permission to addhim as a defendant. Further, plaintiff’sclaims against Guldi related back to theclaims asserted against defendants in the

original complaint.

Honorable Peter H. MayerMotion for a default judgment pursuant

to CPLR §3215 denied; absence of either aproper affidavit by the party or a complaintverified by the party

In Juliette Earl v. Riverhead Auto Mall,Ltd., Barbara Fonte, Linda R. Fonte andMiguel Ortega, Index No. 40038/08,decided on December 28, 2009, the courtdenied plaintiff’s motion for a defaultjudgment pursuant to CPLR §3215. In ren-dering its decision, the court noted that themovant submitted an attorney affirmationand an unverified complaint. The courtfound that the movant failed to submit therequired affidavit, setting forth the factsconstituting the claim, the default, and theamount due. In absence of either a properaffidavit by the party or a complaint veri-fied by the party, not merely by an attor-ney with no personal knowledge, the entryof a default judgment would be erroneous.

Please send future decisions to appear in“Bench Briefs” column to Elaine M.Colavito at [email protected]. Thereis no guarantee that decisions received willbe published. Submissions are limited todecisions from Suffolk County trial courts.To be considered for inclusion in the May2010 issue, submission must be received onor before April 1, 2010. Submissions areaccepted on a continual basis.

Note: Elaine Colavito is an Associate atHeidell Pittoni Murphy & Bach, LLP con-centrating in litigation defense. She grad-uated from Touro Law Center in 2007 inthe top 6% of her class and is a co-chair ofthe New Members Committee of theSuffolk County Bar Association. She canbe contacted at (516) 408-1600.


Bench Briefs (Continued from page 4)

NY Budget Bill ProposalsImpacting Medicaid (Continued from page 4)

Pooled Income Trusts (Continued from page 10)

General Laws to restore estate recoveryonly against the probate estate.

12-Hour Cap on Personal CareThe 2010-11 Executive Budget would

require persons receiving Medicaid homecare and those who need more than 12hours of Medicaid personal care servicesper day to switch to other programs includ-ing Long Term Home Health Care Program(LTHHCP, also known as Lombardi),Managed Long Term Care plans (MLTC),Nursing Home Transition and Diversionwaiver (NHTD), Consumer-DirectedPersonal Assistance Program (CDPAP). Itis not clear if “live-in” care is barred by thecap. The problem is that most of these pro-grams are very limited (NHTD only has 23people enrolled in New York City), or arecapitated programs that have traditionallyresisted providing more than 12 hours perday of care. (CDPAP) is a vital option,especially in rural areas with an aide short-age, but not everyone can perform or has afamily member who can perform all thecomplex functions of managing a care plan.

The Long Term Care FinancingDemonstration Program.

On the positive side, the budget bill con-tains a demonstration program very similarto the New York State Bar Association’s

proposal for a Compact for Long Term Care.Similar to Long Term Care PartnershipInsurance policies there would be one pro-gram allowing access to Medicaid whileprotecting all assets and a second dollar fordollar program. The difference from thePartnership would be that the Long TermCare Financing Demonstration Programallows persons who are otherwise uninsur-able and those who could not afford the nec-essary coverage to contribute and obtain thebenefits. The Demonstration Program lacksdetail which would have to be fleshed outand would require a federal waiver.

Note: David Goldfarb David Goldfarb isa partner at Goldfarb Abrandt Salzman &Kutzin LLP, a firm concentrating in elderlaw, trusts and estates and the rights of theelderly and disabled. He is co-author of aNew York Elder Law (formerly New YorkGuide to Tax Estate and FinancialPlanning for the Elderly (Lexis-MatthewBender 1999 – 2009). He has writtennumerous articles including articles for theNew York Times, New York State BarJournal, the National Academy of ElderLaw Attorneys' NAELA News and the NewYork Law Journal. Mr. Goldfarb formerlyworked for the Civil Division of The LegalAid Society (New York City). His e-mailaddress is [email protected] andhis home page is http//www.seniorlaw.com.

of living continues to increase, the use of aPooled Income Trust will allow individualsto remain at home and avoid a nursinghome before it is truly necessary.

Note: Melissa Negrin-Wiener, Esq. is apartner with the Elder Law firm of GenserDubow Genser & Cona, LLP, located inMelville. Ms. Negrin-Wiener practices

exclusively in the field of Elder Law,including asset protection planning,Medicaid planning, representation in FairHearings and Article 78 proceedings,estate planning, trust and estate adminis-tration, guardianships and estate litigation.For further information call (631) 390-5000 or visit www.genserlaw.com.

1022(e)(2)(A) to a qualified revocable trust (as defined in section

645(b)(1)), or1022(e)(2)(B)

to any other trust with respect to which the decedent reserved the right to make any change in the enjoyment thereof through the exercise of a power to alter, amend, or terminate the trust.

1022(e)(3) Any other property passing from

the decedent by reason of death tothe extent that such property passed without consideration.”

The application of this section is actuallybroader then the application of the increaseprovision under IRC §1022. In order toapply a basis increase under IRC §1022 theproperty must have been “acquired” from adecedent and “owned” by a decedent. Bothof these terms are defined by IRC §1022with the term “owned” having a narrowerdefinition then acquired, see IRC§1022(d)(1)(B). It is clear that the typicaltrust which we categorized as a full grantortrust prior to repeal, meaning it is a grantortrust under income tax provisions, IRC§671-678, as well as an incomplete gift forgift tax purposes due to a limited power of

appointment would fit within the definitionof “acquired” but may not fit within the def-inition of owned for purposes of IRC§1022.

In addition several other items should benoted about IRC §121(d)(11) and the capi-tal gain exclusion. First, it does not apply tothe estates of decedents dying afterDecember 31, 2010. Second, it is limited to$250,000 of Capital Gain. Third, it musthave been the decedent’s principal resi-dence and used as such for two or more ofthe five-year period prior to sale. Fourth, anheir who occupies it as a principal residencecan track the decedents use and ownershipin meeting the exclusion tests.

In application of the section there are twocomments. First use it quickly. If the resi-dence continues to be owned by an heirwho does not use it as a personal residence,after the holding period has lapsed, theexclusion cannot be used. This is a signifi-cant limitation when compared to the possi-bility of a step up in basis or an increase inbasis which is permanent.

On the positive side, the repeal may actu-ally help some due to this extension of thecapital gain exclusion. Under the law of2009, IRC §1014, commonly referred to asthe “step up in basis” section, that sectionwas really (will be again? maybe?) a fair

market value provision. In fact IRC §1022is a “step down in basis” with a specialincrease adjustment provisions. Meaning,the basis of the assets to the heirs under IRC§1014 was the fair market value of the asseton the date of the decedents death and nowunder IRC §1022 is the lower of its adjust-ed basis or its fair market value, again withspecial provisions for basis increases.Under both provisions if the fair marketvalue as of the date of death of an asset islower then the purchase price the lowervalue could become the basis. If the asset issold for more than that later there would bea capital gain. Now, under this new section,if that asset was the decedents principal res-idence the capital gain is now potentiallyexcludable. For example, let’s assume thatan individual purchases a home in 2005 for$800,000 and dies on January 1, 2010 leav-ing only this asset with a current fair marketvalue of $600,000. Under both the priorand current law the heirs would take thestepped down basis of $600,000. If thisproperty was later sold at a higher price, say$800,000, there is a $200,000 capital gain.Under the prior law this gain was taxable,however, under current law it is not.

Estate Planning must take into accountmany issues, none of which is necessarilymore important than another. Tax basis of

an inherited asset has played a major part ofour planning process over years past and willcontinue to do so. As we now sit and digestthese new provisions and the application ofthem, Congress sits and thinks of ways tochange them again. The saga will continue.

Note: David R. Okrent, Esq., CPA is theManaging Attorney of The Law Offices ofDavid R. Okrent and has been handlingelder law, special needs, and estate plan-ning and administration matters for over 24years. Mr. Okrent was designated one ofLong Island Alzheimer’s Foundation’s“Angels of Spirit.” He currently serves asthe Elder Law Section of the New YorkState Bar Association as it’s Co-ChiefEditor of the Elder Law Attorney, it’s quar-terly publication , Vice Chairman of itsEstate & Planning Committee and tenthdistrict (Long Island) delegate. He alsoserves as the Co-Chair of the SuffolkCounty Bar Association Legislation ReviewCommittee and as an advisory member toits Academy of Law. His firm has officescentrally located in Huntington, PortJefferson, Setauket, Delmar, andRiverhead. For more information, visithttp://www.davidrokrentlaw.com or call(631)427-4600.

1 P.L. 107-16.

area dates back many years. The SupremeCourt of United States has stated that a spe-cial education student is not entitled to a“Cadillac Education” but is entitled to a“Chevy Education.” This analogy comesfrom a late 1970’s case and it may be a bitoutdated but the point is that a school dis-trict need only supply an education that hasa meaningful benefit to the student and notone that maximizes their potential. Anotherlaw that governs this area is the "No ChildLeft Behind Act" (NCLB). The NCLB’spurpose is "to ensure that all children havea fair, equal and significant opportunity toobtain a high quality education and reach, ata minimum, proficiency on challengingacademic achievement standards."However, it fails to make any distinctionbetween the academic standards of all chil-dren and those children with disabilities.

The standards applied by a New YorkCourt to determine if a student is placed ina LRE are:

Steps the school district has taken toaccommodate the child in the regular class-room. This includes attempts to providesupplemental services in conjunction withregular services, for example, resourceroom, speech and language therapy, specialeducation, teacher training, and behaviormodification.

The child’s ability to receive an educa-tional benefit in a general education class-room. The typical children and teacherserve as language and behavior role modelsfor special needs children; moreover, whentypical children see special needs childrenclose up, the stereotypes that typical chil-dren have are broken down.

Effect of special needs child on typicalpeers. Is there a significant disruption?Does the disruption outweigh the educa-tional benefit to the child? Is the teacherforced to place a disproportionate amountof attention to one child?

FAPE must provide “special educationand related services tailored to meet theunique needs of a particular child, and be‘reasonably calculated to enable the child toreceive educational benefits.’ These ser-

vices are administered through a writtenindividualized education program (“IEP”),which must be updated at least annually. InNew York, local Committees on SpecialEducation (“CSE”) are responsible fordeveloping appropriate IEPs. In develop-ing a particular child's IEP, a CSE isrequired to consider four factors: (1) acade-mic achievement and learning characteris-tics, (2) social development, (3) physicaldevelopment, and (4) managerial or behav-ioral needs. Such IEP must contain:

A description of the child’s present levelsof educational performance and how thedisability impacts the child’s academic andnon-academic performance;

A list of annual goals that the child willbe expected to accomplish in the upcoming12 month special education period;

A statement of the specific special educa-tion and related services which will be pro-vided to the child;

Any accommodations which will be pro-vided to the child such as testing modifica-tions or assistive technology devices;

The projected start dates for all services;and If the child is age 16 or older, a list oftransition goals and services.

When parents disagree with the programrecommendation of the school district, theymay reject it. A meeting will then be heldbetween the CSE and the parents in anattempt to resolve the issues. If no agree-ment is reached, an Impartial Hearing orDue Process Hearing will take place beforean Impartial Hearing Officer (IHO) who isnot employed by the School District andthis is the procedure by which the familycan formally challenge the school district’sIEP in whole or in part. Parents must bewell-prepared to present their case at thishearing and should at least consult an attor-ney who concentrates in education law.

At these hearings parents are required topresent evidence which supports their posi-tion that the school district’s recommendedprogram is inappropriate for their child.This often includes the presentation of testi-mony from expert witnesses and writtenreports. Parents themselves may also testi-

fy. It is very difficult for families to winthese hearings without expert opinions stat-ing that what the district proposes is inap-propriate and what the family is requestingis appropriate. The only way to have theseexperts ready to testify for your grandchildis to have your grandchild seen by them ona regular basis. The IHO will then issue adecision. If the school district or parentsdisagree with the decision, either mayappeal to an Administrative Review Boardor State Review Officer (SRO), after whichtime additional appeals to Federal or StateCourt in New York may be pursued.

Raising any child in New York State canbe an expensive and time consumingprocess but is defiantly a labor of love. Thisis ever more so in the raising of a specialneeds child. It is vitally important to boththe special needs child and their parents thatthe grandparents are involved in thisprocess. One should never underestimatehow important it is to a parent to be able toleave the typical siblings at home with

Grandma and Grandpa while they attendthe doctor’s appointment, the CSE Meeting,or make their fourth trip to the school thisweek for their special needs child. Thusgrandparents can provide vital guidance,assistance and support to assist in securingthe necessary and appropriate services fortheir grandchildren. Hillary Clinton told usit “takes a village,” but at the very least ittakes an involved set of grandparents tohelp raise the special needs child.

Note: Brad Rosken, Esq. is of Counsel tothe Law Offices of David R. Okrent wherehe concentrates in the area of special edu-cation. He is a former Assistant DistrictAttorney in Bronx County in the NarcoticsBureau. He is currently a member of theABA, American Association for Justice(formerly known as ATLA), the SuffolkCounty Bar Association, Trial LawyersCare, NYSTLA, COPAA (Council ofParents Attorneys and Advocates), andCEC (Council for Exceptional Children).


Education Law and the Role of the Grandparents (Continued from page 5)

Repeal Gives Heirs Capital Gain Exclusion on Home (Continued from page 5)

that held to the contrary. However, thecourt concluded that unemployment bene-fits are designed to replace wages, andsince wages must be reported on the meanstest, then so, too, must unemployment ben-efits be reported as income. The court alsohighlighted the aim of the means test,which is to include income from all possi-ble sources.

What can be learned from cases likethis? When you have an unusual issue, itoften pays to do some research prior to fil-ing to see where the various courts stand,especially if the issue has not yet beenaddressed in our jurisdiction.

Keep in mind that our judges can just aseasily adopt the minority view or themajority view; however, becomingacquainted with the written decisions of

our Long Island Bankruptcy Court judgeswill help you ascertain how a particularjudge is likely to rule, something I com-mented on in last month’s column.

At any rate, if you know what the casesare, and which cases support your position,at least you’ll have a better chance of per-suading the trustee, U.S. Trustee or Judgeto adopt your position.

Editor’s Note: Craig D. Robins, Esq., aregular columnist, is a Long Island bank-ruptcy lawyer who has represented thou-sands of consumer and business clientsduring the past twenty years. He hasoffices in Patchogue, Commack, Woodburyand Valley Stream. (516) 496-0800. Hecan be reached at [email protected].

What is “Income” for Means TestPurposes? (Continued from page 16)


SUFFOLK ACADEMY OF LAW5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

The Suffolk Academy of Law, the educational arm of theSuffolk County Bar Association, provides a comprehensivecurriculum of continuing legal education courses. Listedhere are courses scheduled for late March and early April.Watch for additional program announcements.

ACCREDITATION FOR MCLE:The Suffolk Academy of Law has been certified by the NewYork State Continuing Legal Education Board as an accred-ited provider of continuing legal education in the State ofNew York. Thus, Academy courses are presumptivelyapproved as meeting the OCA's MCLE requirements.

NOTES:Program Locations: Most, but not all, programs are held at theSCBA Center; be sure to check listings for locations andtimes.

Tuition & Registration: Tuition prices listed in the registrationform are for discounted pre-registration. At-door registrationsentail higher fees. You may pre-register for classes byreturning the registration coupon with your payment.

Refunds: Refund requests must be received 48 hours inadvance.

Non SCBA Member Attorneys: Tuition prices are discounted forSCBA members. If you attend a course at non-memberrates and join the Suffolk County Bar Association within 30days, you may apply the tuition differential you paid to yourSCBA membership dues.

Americans with Disabilities Act: If you plan to attend a programand need assistance related to a disability provided forunder the ADA,, please let us know.

Disclaimer: Speakers and topics are subject to change with-out notice. The Suffolk Academy of Law is not liable forerrors or omissions in this publicity information.

Tax-Deductible Support for CLE: Tuition does not fully supportthe Academy's educational program. As a 501©)(3) organi-zation, the Academy can accept your tax deductible dona-tion. Please take a moment, when registering, to add a con-tribution to your tuition payment.

Financial Aid: For information on needs-based scholarships,payment plans, or volunteer service in lieu of tuition, pleasecall the Academy at 631-233-5588.

INQUIRIES: 631-234-5588.

EARLY SPRING CLE

SERIES & SEMINARS

Lunch ‘n LearnEFFECTIVE USE OF A ROTH IRA

Tuesday, March 23, 2010This seminar will demystify the world of individual retirementaccounts. An expert panel will cover: the benefits of a Roth IRAand when it is better than a traditional IRA; converting traditionalIRAs to Roth IRAS; income planning flexibility and wealth plan-ning advantages of a Roth; stages of retirement planning, andhow to use the tax code to provide for children and grandchil-dren.Faculty: Valerie Manzo, Esq; Lisa Signorelli, CPA; Karen E.Hubbard (VP–Morgan Stanley)Coordinator: Eileen Coen Cacioppo, Academy Curriculum Co-ChairTime: 12:30 – 2:10 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice OR skills)[Non-Transitional and Transitional]

Lunch WorkshopTHE ART OF NEGOTIATING

Wednesday, March 24, 2010This workshop, designed as a follow-up to the Bridge the GapSeries, is open to all practitioners, new and experienced. Gaintips for strategic skills that will make you a better negotiator invirtually any setting.Faculty: Neil Block, Esq. (Ingerman Smith)Time: 12:30 – 2:10 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (skills) [Non-Transitional and Transitional]

East End SeminarMARKETING FOR LAWYERS

Thursday, March 25, 2010This extended luncheon seminar will tell you what you need toknow to promote your practice without violating the rules of ethi-cal conduct. The presenter, an attorney and public relations pro-fessional, will review the distinctions among various forms ofmarketing – advertising (print, TV and radio spots), public rela-tions, practice development activities, websites and SEO, blogsand other social media – and discuss the advantages and dis-advantages, plus the relative costs, of each. The presentationwill include a review of the rules governing lawyer advertising,including changes in the newly adopted ethics rules.Faculty: John C. Zaher, Esq. (President–The Public Relationsand Marketing Group, LLC)Location: Four Seasons Caterer (Southampton – 15 ProspectStreet)Time: 12:30 – 3:00 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: Lunch from NoonMCLE: 2 Hours (ethics) [Non-Transitional and Transitional]

Fifth Annual Animal Law SeminarREPRESENTING THE

NOT-FOR-PROFIT ANIMAL

RELATED ORGANIZATIONWednesday, April 7, 2010

There are more animal related non-profits (companion animalrescue, equine rescue, wildlife sanctuaries, bird rescue, etc.)than ever before, and more lawyers than ever before will becalled upon to represent these organizations. This program,developed and presented by the SCBA’s Animal LawCommittee, will help lawyers to gain an understanding of thekey legal issues facing animal-related groups. Topics include:organizing a not-for-profit; contract drafting and contact issuesinvolving adoption, surrender, foster placement, etc.; duties andliabilities of directors and officers; the difference between 501c3and 501c4 organizations; lobbying issues and limitations; andthe effects of Workers’ Compensation Law on animal-relatedorganizations.Faculty: Pamela Mann, Esq.; Elinor Molbegott, Esq;Thomas J. Killeen, Esq. (Farrell Fritz, PC); Dennis Chase,Esq. (The Chase Sensale Law Group)Committee Chairs: Amy Chaitoff, Esq. and Karen Strom, Esq.Time: 6:00–9:00 p.m. (Sign-in from 5:30)Location: SCBA Center Refreshments: Vegan-VegetarianSupperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

Lunch ‘n LearnUNDERSTANDING & UTILIZING

FIVE KINDS OF ANNUITIES Thursday, April 8, 2010

Immediate, deferred, fixed, fixed index, variable, etc., etc....Theadjectives describing annuities seem as varied as the ways inwhich astute planners can find to use them to the advantage oftheir clients. This program, featuring two always popular presen-ters, will discuss the proper utilization of annuities in estateplanning and elder law settings. You will learn, among manyother things, how to fund a long term care insurance policy withannuities (1035 exchange) and how to guide your clients ininvesting “four kinds of money” (money needed immediately,needed in one to three years, needed in four to eight years, andnever needed). Finally, a myriad of complex topics – penaltyperiods, income guarantees, sub-accounts, linked annuities,etc., etc. – will be simplified and rendered comprehensible.Faculty: Vincent Russo, Esq and Henry Montag, CFP, CLTCCoordinator: Eileen Coen Cacioppo, Academy Curriculum Co-ChairTime: 12:30 – 2:10 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice OR skills)[Non-Transitional and Transitional]

CIVIL ENFORCEMENT OF MONEY JUDGMENTS THROUGH

THE SHERIFF’S OFFICEThursday, April 8, 2010

In this comprehensive program, attorneys with vast experiencein the area will join forces with representatives of the SuffolkCounty Sheriff’s Office to enlighten attorneys on what can be afrustrating aspect of practicing law: enforcing a money judge-ment. You will gain insight into case law, statutory provisions,and practical issues. Presenters will cover Article 52(Enforcement of Money Judgments as Related to the Sheriff’sOffice); Article 80 (fees, proper execution, mileage, etc); thesale of real property by the sheriff’s office; which forms to use

and how to process them so they aren’t returned, and much,much more. Bring your questions!!Faculty: Lester P. Taroff, Esq. and Elliott M. Portman, Esq.of Roe, Taroff, Taitz & Portman, LLP (Patchogue);Ltd. Jan Meyerriecks, Sgt. David Sheehan, and RoseCoveney (Principal Clerk, Real Property Section) from theSheriff’s Office.Coordinator: Steven Taitz, Academy Advisory CommitteeTime: 6:00–9:00 p.m. (Sign-in from 5:30)Location: SCBA Center Refreshments: Light SupperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

REPRESENTING VETERANS & ACTIVE SERVICE PERSONNEL

Monday, April 12, 2010Thousands of Suffolk County residents either have served orare currently serving our country in the armed forces. Thesemen, women, and their families are often in need of legal assis-tance, many of the matters arising directly from their time in ser-vice. The goal of this program is to make legal counsel and rep-resentation readily available to them. Toward this end, theAcademy will waive its tuition fee for attorneys who agreeto handle at least one matter involving a veteran or activeserviceman or woman on a pro bono basis. The presenta-tion will include an overview of specific statutes that providelegal rights for service men and women and will help you to ren-der competent representation. Topics include: the Soldiers &Sailors Relief Act and USERRA; employee benefits and employ-ers’ duties for returning service personnel; default judgments;services available for veterans; mortgages and real propertyissues.Faculty: Hon. Allan Mathers; Jeffrey N. Naness, Esq.; Hon.Andrew Engel; Thomas Ronayne (Suffolk Veterans ServiceAgency); Professor John Gresham (Touro Law Center)Moderators: Hon. Peter Mayer and Ted Rosenberg, Esq.Time: 6:00–9:00 p.m. (Sign-in from 5:30)Location: SCBA Center Refreshments: Light SupperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

Lunch ‘n LearnETHICS IN TRANSACTIONAL

PRACTICETuesday, April 13, 2010

Especially in today’s economy, where clients seeking to close adeal may be pressured and anxious, the attorney must pay spe-cial attention to the requirements of the “Attorney Rules ofProfessional Conduct,” newly revised a year ago. In thislunchtime seminar, two experienced practitioners will discussethics requirements as they apply to commercial transactionsand real property transactions. Faculty: John R. Calcagni, Esq. (Haley Weinblatt & Calcagni)and Robin S. Abramowitz, Esq. (Lazer Aptheker Rosella &Yedid)Time: 12:30 – 2:10 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (ethics) [Non-Transitional and Transitional]

“Tea Time” WorkshopPRACTICE MANAGEMENT: Scheduling

& Time ManagementTuesday, April 13

This last session in the 2009-2010 Practice Management Series

O F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

N.B. - As per NYS CLE Board regulation, you must attend a CLE pro-gram or a specific section of a longer program in its entirety toreceive credit.


SUFFOLK ACADEMY OF LAWO F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

will focus on an issue that is of prime importance to practicing lawyers: making the workday asproductive as possible. As we all know, the hours in which to complete tasks are finite, while whatneeds to be done can seem infinite. Gain practical pointers for scheduling, improving efficiency,making hard choices, etc., etc. at this roundtable discussion. [NOTE: The two canceled sessions in this series will be re-scheduled. Please watch for announce-ments.]Discussion Leaders: Sheryl Randazzo (SCBA President Elect) and Allison Shields (AssociateAcademy Dean)Time: 4:30–5:45 p.m. (Sign-in from 4:15 p.m.)Location: SCBA Center Refreshments: Snacks MCLE: 1 ½ Hours (practice management)[Non-Transitional and Transitional]

VIEWS FROM THE BENCH: FAMILY PRACTICEThursday, April 15, 2010

In this final segment of the Academy’s well received series on judicial perspectives, 4 Family Courtjudges will provide insights into custody and visitation, neglect and abuse, orders of protection,and PINS and JDs. Family Court practitioners will gain insights into discovery practice, tryingcases, using forensic psychologists, rules of the court, and significant case law.

Faculty: Hon. John Kelly; Hon. Marlene Budd; Hon. Richard Hoffman; Hon. James Quinn.Coordinator: Lynn Poster-Zimmerman (Academy Officer)Time: 6:00–9:00 p.m. (Sign-in from 5:30) Location: SCBA Center Refreshments: Light Supper MCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

East End SeminarBANKRUPTCY BASICS

Thursday, April 22, 2010In today’s economy, virtually any attorney needs some knowledge of bankruptcy law. This programwill cover the basics of consumer bankruptcy, including determining when bankruptcy is the bestoption, filling out a bankruptcy petition, mandated conversions from Chapter 7 to Chapter 13, sort-ing out the creditors, the relationship of bankruptcy to foreclosure, and much more.Faculty: Richard Stern, Esq. (Macco & Stern–Melville; Academy Dean)Location: Four Seasons Caterer (Southampton – 15 Prospect Street) Time: 5:00–8:00:00 p.m. (Sign-in from 4:30) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

________________________By Dorothy Paine Ceparano

Gardeners think of flowers. Sports fansawait the return of baseball. Everyoneanticipates longer days and shorter nights.The onset of spring brings thoughts ofgrowth, renewal, possibility, and hope.

When it lives up to its mission, CLE canbe a little bit like spring. Many lawyerslooking to continuing education for waysto grow a practice, to renew skills, to opendoors to new knowledge, and to find hopefor a better professional life. In this vein,the Academy’s curriculum for Aprilthrough June seems exceedingly spring-like, not only in its timing, but in its con-tent. Like a pre-bloom garden, our springsyllabus is still a work in progress, one thatpromises to burst forth with variegatedoptions that respond to the needs and aspi-rations of our constituents. Seeds are plant-ed for offerings in animal law, auto liabili-ty, business and corporate law, elder lawand estates practice, employment law,ethics, evidence, family and matrimonialpractice, litigation, real estate, surrogate’scourt practice, plus a few “hybrids” thatcross disciplinary lines.

The skilled “gardeners” for all of theprograms are volunteers – i.e., Academyofficers and advisors and SCBA committeechairs – who have generously devoted timeand energy to developing important CLEconcepts and to gathering knowledgeableand giving presenters to serve on the facul-ties.

AprilWith a curriculum that is pretty much set,

April comprises an assortment of ambitiousprograms, starting with an annual seminarfrom the SCBA’s Animal Law Committeechaired by Amy L. Chaitoff. The topic thisyear is “Representing the Not-for-ProfitAnimal Related Organization”; the date isthe evening of April 7; the faculty representsan eclectic and impressive mix of legalexpertise. Presenters include Pamela Mann(former chief of the New York CharitiesBureau), Thomas Killeen, Elinor Molbegott,Dennis Chase, and Herbert S. Kellner.

At lunchtime on the following day, April8, the always popular duo, elder law attor-ney Vincent Russo and financial plannerHenry Montag, will discuss “Five Kinds of

Annuities” attorneys might want to discusswith clients. Later that day, another dynam-ic duo, Les Taroff and Elliott Portman, willexamine “Enforcement of MoneyJudgments” in an evening seminar.

A program all SCBA members shouldconsider attending will be held on theevening of April 12. Chaired by diligentsupporters of the cause, Supreme CourtJustice Peter Mayer and Ted Rosenberg,the program will deal with “Legal IssuesAffecting U.S. Veterans and ActiveService Personnel.” The program willcover the legal rights of service personnelcovered by statute, the remedies availableto then when confronted with legal issues,and some specific kinds of issues (realestate, employment law, among others)veterans and service personnel are facingin large numbers. The prestigious facultyincludes Judge Advocate Allan Mathers,Hon. Andrew Engel, employment lawyerJeffrey Naness, Thomas Ronayne, thedirector of Suffolk County’s VeteransService Agency, and Touro law professorJohn Gresham. Because the issues are soimportant and the need so great, thetuition fee will be waived for those whosign up to handle at least one pro bonoconsultation case for a veteran or activeservice member.

During the same week, a lunchtime sem-inar on “Ethics in Transactional Law”(April 13) will be presented by JohnCalcagni and Robin Abramowitz; a practicemanagement roundtable on Schedulingand Time Management (April 13, 4:30p.m.) will be led by Sheryl Randazzo andAllison Shields; and the final segment ofthe Views from the Bench Series, focus-ing on Family Court (April 15), will bepresented by Hon. Marlene Budd, Hon.John Kelly, Hon. James Quinn, Hon.Theresa Whelan, and other representativesof the bench, with Lynn Poster-Zimmermanas moderator.

Also in April are an East End presenta-tion on Basic Bankruptcy (April 22, 5p.m.) by Academy Dean Richard Stern; anevening seminar on “High ConflictDivorce” (April 28) organized by Hon.John Kelly, Hon. Isabel Buse, and Hon.John Raimondi; a seminar on “Medicinein the Courtroom” (evening, April 14)featuring Joseph Hanshe, an ER doctor, andother guest presenters; and a full-day Elder

Law Boot Camp (Friday, April 23) devel-oped by George Tilschner and Lynne PosterZimmerman.

MayFollowing the program-packed month of

April, May, to continue the spring gardenmetaphor, is no shrinking violet either.The month includes a seminar on Trying aCustody Case (May 5, evening) organizedby Hon. John Kelly, Hon. Isabel Buse, andHon. John Raimondi; an evening seminaron Miscellaneous Surrogate’s CourtProceedings (May 6) presented by ScottMcBride; and an extended lunch programon Lawyer Marketing (May 7) by JohnZaher. And that’s just week one.

Week two comprises Summary JuryTrials (May 12, evening) developed by theSCBA Supreme Court Committee (ThomasStock and Hon. Denise Molia, chairs); theAnnual Evidence Update by ProfessorRichard Farrell (evening, May 13); and ahalf-day program on Commercial RealEstate (Friday, May 14), chaired by CherylMintz and featuring a faculty of attorneyshighly skilled in the area. The latter pro-gram will cover not only the art of the com-mercial deal, but such current economyissues as the purchase or sale of “under-water” properties.

Finally, May includes the rescheduledMental Health & the Courts seminar(May 19, evening) chaired by Hon. StephenUkeiley, plus an evening program on ElderLaw Litigation (May 18) chaired byGeorge Tilschner and an evening program

on Estate Litigation (May 25) chaired byWilliam Bernstein.

JuneJune concludes the Academy’s spring

semester and will include the rescheduledLocal Green Laws seminar (June 1) fromthe SCBA Environmental Law Committee;a lunchtime seminar on IndependentContractors (June 8) by William Bernstein;an evening seminar on the MatrimonialTrial (June 9) organized by Lynn Poster-Zimmerman; a lunchtime seminar onPiercing the Corporate Veil (June 14)organized by Gail Blasie and Marilyn Lord-James; a morning seminar by Sy Goldbergon New York Trusts & Estates Law (June16); and a lunch ‘n learn seminar on Ethicsin Personal Injury Practice (June 23) pre-sented by Patricia Meisenheimer andMichael Glass.

Spring will also bring the Annual AutoLiability Update by Jonathan Dachs andProfessor Michael Hutter, a full-day pro-gram on Depositions organized by WendeDoniger and A. Craig Purcell, and anArticle 81 Guardianship training programchaired by Bronwyn Black. Dates for theseprograms, as well as for other budding CLEideas, will be announced.

Additional information on any upcomingprograms is available through theAcademy’s administrative offices at 631-234-5588.

Note: Dorothy Paine Ceparano is theexecutive director of the Academy of Law.

Of Gardens, Spring Skies, and CLE

you have good income, sufficient liquidassets, or a good long term care insurancepolicy to pay the freight, this is certainly aworthwhile long-term care option.

Two problems arise with assisted livingfacilities. The first is when a resident’s con-dition deteriorates to the point where place-ment in a traditional nursing home settingbecomes necessary. The second is whathappens when the resident runs out ofmoney. Addressing the second issue first, aperson can be evicted from an assisted liv-ing facility for non-payment of rent.Seniors may find themselves in this situa-tion when placed by their children, who,with the best of intentions, used their par-ents’ money until it was gone. When suchseniors are not candidates for a nursinghome, the result is a rude awakening.Sadly, the situation can be characterized asa race between poverty and death to seewho gets to the door first. If the patient’scondition deteriorates, in all likelihood, heor she will be hospitalized and nursinghome placement will occur from the hospi-tal setting. If an application for Medicaid isgoing to be submitted on the resident’sbehalf for the nursing home, the cost of theassisted living facility is a legitimate spenddown of the resident’s funds.

Medical Model Adult Day Care(MMADC) is another way to keep a seniorin the community. It is also known as theLombardy program or the Nursing HomeWithout Walls program. All three namesare interchangeable for the same program.Unlike assisted living facilities, Medicaiddoes pay for MMADC and the beauty is thatits eligibility requirements come under the

Community Medicaid umbrella. That is,there are no transfer rules or penalties tobecome eligible for this program. Assetsand resources can be freely transferred outof the applicant’s name without penalty.Incomes (i.e. social security and pension)are subject to the community Medicaidincome cap of $787 per month, but with theuse of the NYSARC trust applicants can getback virtually all of their Medicaid overagemoney to live on. Furthermore, if a spouseis involved and one spouse is in need ofMMADC, the rules provide for the samespousal budgeting amounts as if the otherwere in a nursing home. If the income isthere, the “community spouse” may be ableto keep up to $2739 per month, the commu-nity spouse income allowance for chroniccare Medicaid. It is the best of both worlds.

Elder Law attorneys with knowledge ofthe Medicaid law, and a vast array of com-munity resources available, should makethe best of the bad situation clients mayfind themselves in through no fault of theirown. I often begin my advice and consulta-tion after hearing such tales of woe with,“…the silver lining in the dark cloud is asfollows….” I find it helpful to the client tobe able to minimize what they perceive tobe the cruel twist of fate which no oneplanned. I rely on the old Irish proverb,“Live every day as if it were your last…andsomeday you’ll be right.”

Note: George L. Roach is the formerChief Attorney for the Legal Aid Society’sSenior Citizen Division and is now a mem-ber of the firm of Grabie & Grabie, LLP, inSmithtown.

Where to Go After Homecare(Continued from page 9)


Wednesday nights, 5:30p.m.-6:30p.m.,790 Park Avenue, Huntington. Contact(631) 427-3700.

Suffolk County's Helen Keller Servicesseeks volunteers to visit, socialize and aidhomebound blind individuals. (631) 424-0022.

Huntington Historical Society seeksvolunteers to work in the newly restoredMuseum Shop and serve as MuseumGuides giving tours of historic property.Training will be provided, no experiencenecessary. (631) 427-7045.

Huntington Hospital Auxiliary's TheCommunity Thrift Shop needs volunte-ers for merchandise pricing and floor workon Monday afternoons, and Tuesday andThursday mornings. (631) 271-3143.

Family and Children’s Associationseeks volunteers for its long-standingOmbudservice Program, part of a state-wide network of certified volunteers whovisit nursing homes, adult homes, andassisted living facilities in NassauCounty. Ombudspersons serve as advoca-tes for residents and their families.Family & Children’s is planning a trai-ning class for April/May. Training invol-ves 36 hours of instruction over a 6 dayperiod at Family & Children’s offices inHempstead. For more information call516.466.9718 or [email protected].

For more on the community outreachcommittee and the community outreachcalendar, visit the community outreachcalendar online at www.scba.org/outre-ach. To request that your event be addedto the calendar, please email the commit-tee at [email protected].

Community Outreach Calendar (Continued from page 6)

cipal must initial in the designated area of Section (b). ThePower will not be effective until the principal and the agenthave executed it. If there are multiple agents, the power isnot effective until it is executed and acknowledged by thelast agent. § Section 5-1501(B)(c) holds that the principaland the agent do not have to execute contemporaneously,stating that the power is not invalid “solely because therehas been a lapse of time between the date of acknowledg-ment of the signature of the principal and the date ofacknowledgment of the signature of the agent.” The lawdoes not set forth a specific time frame in which the princi-pal and the agent must sign.

In Section (c) of the form, the principal may designate asuccessor agent or agents. Once again, if multiple agentsare appointed, the appropriate box must be initialed by theprincipal if the agents are to have the ability to act sepa-rately. Unlike the requirement that the primary agent(s)must execute before the form will take effect, there is nosuch requirement under the statute as to the successoragent(s).

Pursuant to §5-1513, modifications to the form can onlybe made in Section (g), “Modifications.” Any changes oradditions to other Sections of the form may invalidate thePower. The modifications section should be used to addprovisions that are not adequately set forth in§5-1502, “A”through “O.” As an example, Section (e) of the form statesthat the new Power “revokes any and all prior Powers ofAttorney executed by me unless I have stated otherwisebelow, under Modifications.” The attorney may want toadd a provision in the Modifications section stating that thepower of attorney specifically does not revoke any previouspower(s) of attorney executed by me (the principal) unlessotherwise specified.

The Modifications section, however, cannot be used togrant gifting authority. In order for the agent(s) to have giftgiving power, the principal must execute a new instrument,the Statutory Major Gifts Rider (SMGR). In order for theSMGR to be valid, the principal must initial Section (h) ofthe form, which along with the SMGR, grant the agent theauthority to make “major gifts and other transfers of myproperty.” The statute is not clear as to whether the inclu-sion of “making major gifts,” or a “change in the interest inproperty” in the Modification section will invalidate theform or whether the inclusion of such a provision wouldmake the form non-statutory in nature. The statute does per-mit the addition of powers in the Modification section, aslong as the modifications are not inconsistent with the statu-tory short form. Therefore, an expanded power of attorneyshould still receive the benefit of statutorily mandatedacceptance, as long as the modifications meet the statutoryrequirements of §5-1503.

The next major change in the Power of Attorney form isSection (i), “Designation of a Monitor” (§5-1513(1)(i)). Inthis section, the principal may nominate a person to moni-tor the agent’s actions on behalf of the principal, and givesthe monitor the authority to request that the agent providethe monitor with documentation recording the transactionsthe agent has made on behalf of the principal. However, 5-513(1)(i) does not provide for the principal to initial themonitor provision, which is inconsistent with the other pro-visions of the form. This could potentially lead to namesbeing inappropriately filled in at a later time.

Section 5-513(1)(j) provides for the optional authorityfor “reasonable compensation” to the agent for servicesrendered by initialing in the appropriate area. If additionalcompensation beyond reimbursement for “reasonable”

expenses incurred is requested, that authority to compen-sate must be found in the SMGR.

Beyond the signature and acknowledgment of the prin-cipal (Section (m)), is another new addition, “ImportantInformation For The Agent,” 5-1513(1)(n). This sectionspecifies in great detail the standard of fiduciary responsi-bility. The warnings outline the duties and responsibilitiesof the agent, including a caution to the agent concerningthe use of the principal’s assets for himself or herself, or tomake gifts to himself or herself without the specific autho-rization of the principal.

The agent who seeks to utilize the power of attorneymust now sign the form in Section (o), in the presence of anotary public before the power of attorney is valid. As stat-ed above, the power need not be signed simultaneously bythe principal and the agent, and, again, the statute does notset forth a period of time in which the agent must sign afterthe principal for the form to be valid.

The new statute also introduces the Statutory MajorGifts Rider, §5-1514. The SMGR authorizes the agent tomake gifts and transfers of the principal’s property. Itmust be executed by the principal simultaneously with thepower of attorney. Although the agent must sign the powerof attorney to be effective, the agent does not sign theSMGR. Section (a) of the SMGR provides the agent withthe power to make gifts to a class of individuals in anamount up to the federal gift tax exclusion. To grant theagent the power to make the gift tax exclusion gifts, theprincipal must initial this section. Section (a) is actually theonly gifting provision that is expressly set forth in theSMGR. Any other gifting powers must be added in section(b), the Modifications section. GOL §5-1514(3)(a)(b)(c)states the types of gifts, transactions and transfers, as wellas the limitations of the powers, that may be granted to theagent in the SMGR. Once again, the principal must initialin the appropriate area of section (b) for the modificationsto be effective.

Section (c) of the SMGR is extremely important andmust not be overlooked. This section grants the agent spe-cific authorization to make gifts to himself or herself. Theprincipal may list each gift giving provision separately inthis section. Whether the principal wishes to grant theagent the same powers authorized in the modifications sec-tion, or more limited powers, is a matter for individual dis-cussion with the client. Section (c) must be initialed in theappropriate area in order for the agent to have the self gift-ing powers. The principal must sign the SMGR (onceagain simultaneously with the power of attorney) before anotary public and two witnesses “not named in the instru-ment as recipients of other gifts or other transfers, in themanner described at paragraph two of subdivision (a) ofsection 3-2.1 of the estates, powers and trusts law.” GOL§5-1514(9) continues that the signature of the principalmust be duly acknowledged in the manner prescribed of aconveyance of real property must be as set forth in EPTL3-2.1(a)(2). The statute does not make clear whether thenotary public for the principal may also act as one of thewitnesses on the SMGR.

The new power of attorney statute sets forth many chal-lenges to both our clients in understanding the entirety ofthe new document, and to us, the attorneys, in drafting adocument that will meet our client’s needs. The intricaciesof the law raise as many questions as it attempts to answer.Instead of one form which incorporates gifting provisions,there are now two forms with different signing require-ments and with different modifications allowed in eachform. The new dual form basically prevents most peoplefrom availing themselves of a simple, statutory form. TheSMGR itself is confusing as to where in the form it isappropriate to add specific modifications. It is obvious thatthe statute will need revision to answer those questions andtailor the document to better meet the needs of those itseeks to protect.

Note: George R. Tilschner, Esq., has offices inHuntington and Smithtown, New York. He is a member ofthe Board of Directors, an Officer of the Suffolk Academyof Law and past Co-Chair of the Elder Law Committee ofthe Suffolk County Bar Association. He is an active mem-ber of the Elder Law, and Trusts and Estates Committeesof the New York State Bar Association. Mr. Tilschner isalso past President of the Suffolk County Estate PlanningCouncil, and is a member of the National Academy ofElder Law Attorneys as well as the American BarAssociation.


The New Durable Power of Attorney Law (Continued from page 9)


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battling the Detroit Red Wings (organizedby the committee) was such great fun, asecond game, in which the Islanders willface-off against the Rangers has beenscheduled for March 30. Finally, thanks tothe efforts and perseverance of CommitteeCo-Chair Rob Harper and Committeemember Suzanne Burke, the Associationnow has its own Facebook page, with over100 fans in just one month. We are antici-pating that this development will prove asuccessful means of highlighting ourevents and programs, as well as attractingnew members.

At the beginning of November, thePresident’s Council had its first of two din-ner meetings with over 25 of theAssociation’s past presidents. The eveningwas both socially engaging and informa-tive, as our leaders shared their experi-ences and suggestions for theAssociation’s development and future. Weappreciate their wisdom and look forwardto our second dinner with the presidents atwhich honored guests ChiefAdministrative Judge Pfau, PresidingJustice of the Appellate Division, SecondJudicial Department, A. Gail Prudenti,Judge Fischer, Director, New York State

Courts Access to Justice Program, DistrictAdministrative Judge Leis, and DeanRaful will be in attendance.

In an effort to continue to promote therapport between Bench and Bar, dinnershave been arranged for our BarAssociation Officers to exchange pleas-antries with our judges and justices inMarch and April at Café Rustica, and H20Restaurants, respectively.

The website continues to be a work inprogress, and we hope to have our newhome page up by the end of the month.Our first Webcast has taken place thanksto the tremendous efforts of BarrySmolowitz. We look to the continued suc-cess of this technology and the CLE bene-fits it provides our attorneys.

Our Community Outreach Committee iscontinuing with its web postings andmonthly calendars regarding networkingand charitable opportunities for our mem-bers. Our weekly e-mail blasts via streamsend continue to also be a source of infor-mation for Bar happenings. I hope that youare taking advantage of these offerings.

Finally, we hope that you will join usthis spring for two wonderful programs.The first, scheduled for April 20, is a sym-

posium on Women’s Health, sponsored bythe Suffolk County Bar Association,North-Shore Long Island Jewish Women’sHealth System/ Katz Women’s Hospital,and the Suffolk County Women’s BarAssociation. Topics covered will includeParkinson’s disease, Lupus, depression,and eating disorders.

The second program is a book signing,scheduled for the evening of May 26,2010, and will highlight Gary Williams’

work, "Seal of Honor," the story of Lt.Michael Patrick Murphy, USN, a NavySeal who earned the Medal of Honor, theSilver Star and the Purple Heart for hisheroic service in Afghanistan.

We invite all of you to attend these veryspecial presentations.

So, this has been my tenure, thus far. Abusy year, and hopefully viewed by you,as a productive year. I trust you will con-tinue to reap the benefits!

CorrectionsThere was an error in the article “Eighty Year Journey From Pariah to Elder

Statesman” which ran in our January issue. The sentence listing those in attendanceat a Oheka Castle fund-raising event should have read as follows: The guestsincluded Republican Party county leader Buzz Schwenk, who has since died,Smithtown G.O.P. leader Nicholas (Nicky) Barbato, and former United StatesSenator Alphonse D’Amato. The Suffolk Lawyer regrets the error.

There was an error in the obituary section of Among Us in the February issue.The listing should have read as follows: The Officers and Directors of the SCBAsend their heartfelt sympathy to the family of longtime SCBA member NormanPaul Weiss who passed away on Feb. 12 after only 16 days hospitalization for backpain which unfortunately was from an extremely virulent lung cancer. The SuffolkLawyer regrets the error.

The State of the Bar (Continued from page 1)

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This spring, the Academy will presenttwo CLE programs that attorneys mayattend at absolutely no cost if they agreeto represent a client in need on a pro bonobasis. Both programs respond to seriousproblems troubling our neighbors and fel-low citizens: the first deals with the mazeof legal problems confronting veteransand returning military personnel; the sec-ond, with the legal quagmire facingdefendants in Suffolk County mortgageforeclosure actions.

“Representing Veterans and ActiveService Personnel” will be held onMonday, April 12, from 6:00 to 9:00

p.m., with sign-in and supper from 5:30p.m. The program was developed bySupreme Court Justice Peter Mayer andattorney Ted Rosenberg, both of whomare known for their dedication to raisingawareness of the law-related problemsthat can over-burden the men and womenreturning from service and for theirrecruitment efforts to find colleagueswilling to provide assistance.

“Thousands of Suffolk County resi-dents either have served or are currentlyserving our country in the armed forces,”Mr. Rosenberg states. “We have an oblig-ation to make legal services available tothose who serve and their families.”

Similarly, Justice Mayer points out thata great many Long Island residents sentoverseas were reservists; these men andwomen were not prepared – financially,emotionally, practically – for the toll theirservice would take on their families or forthe difficulties they would face uponreturning home.

The April 12 CLE program has as oneof its goals educating lawyers on issuesand entitlements so that they can provideveterans and active service personnelwith the help they need. “Many lawyersare unaware,” Mr. Rosenberg notes, “thatthere are a myriad of specific statutes thatprovide legal rights for servicemen andwomen. This CLE program is designed toprovide an overview of the rights andremedies available to those currently inservice as well as veterans.”

The knowledgeable faculty that willprovide this overview includes Hon.Allan Mathers, who will speak on theSoldiers & Sailors Relief Act and USER-RA; Hon. Andrew Engel, who will coverdefault judgments; attorney Jeffrey N.Naness, who will deal with employeebenefits and employers’ duties for return-ing service personnel; Thomas Ronayne,Director of the Suffolk Veterans ServiceAgency, who will describe available ser-vices; and Touro Professor JohnGresham, who will address mortgagesand other property issues.

The Academy will waive the $65tuition for this three-credit seminar for allwho sign up to provide pro bono repre-sentation for at least one veteran or activeserviceman or woman.

“Representing Defendants inForeclosure Settlement Conferences”will take place on Tuesday, May 4, from4:00 to 8:00 p.m., with sign-in from 3:30p.m. Developed by a team chaired by PastSCBA President Barry Smolowitz andcomprising representatives of the courtsystem, Touro Law School, Nassau-Suffolk Law Services, and the SuffolkCounty Bar Association, the program isintended to recruit new attorney-volun-teers and to address some of the questionstroubling current volunteers.

An initial planning meeting for thisprogram was called in early Marchbecause it had become apparent that withthe ever-growing numbers of residentsfacing potential foreclosure in SuffolkCounty, the courts would soon be over-whelmed and the numbers of volunteersavailable to represent qualified defen-dants in settlement conferences wouldsoon be insufficient. The meeting wasattended by Thomas Draycott and Coleen

Foundulis of the Suffolk County SupremeCourt; Michael Wigutow of Nassau-Suffolk Law Services; Leif Rubinstein,director of Touro’s Foreclosure &Bankruptcy Clinic; Academy Dean andbankruptcy attorney Richard Stern; expe-rienced real estate lawyer Eric Sackstein’Melissa McManaman who administratesthe SCBA’s lawyer-referral system andits foreclosure settlement conference pro-gram; Academy Executive DirectorDorothy Paine Ceparano; SCBAExecutive Director Jane LaCova, and Mr.Smolowitz.

The group drew up plans for a four-credit seminar that would cover the basicsof foreclosure law; settlement confer-ences, including background, new legis-lation, and practical guidelines; thecourts’ “triage approach” to foreclosureconferences; the implications of HAMP(Housing Affordable ModificationProgram); the various programs availablethrough Touro, Law Services, and theSCBA; the lender’s perspective on settle-ment conferences and loan modifications;income issues and bankruptcy (including“cram downs”); and more. The facultywill include Supreme Court JusticeJeffrey Spinner, Mr. Draycott, Ms.Fondulis, Mr. Wigutow, Mr. Rubinstein,Director of Touro’s Real PropertySociety Thomas Maligno, Ms.McManaman, Pro Bono recruiter LindaRaphan, Mr. Sackstein, Mr. Stern, Mr.Smolowitz, and others.

The Academy will waive the $75tuition for this four-credit seminar for allwho sign up to provide pro bono repre-sentation for at least one defendant in aforeclosure settlement/loan modificationconference. Both volunteers for theselimited representation assignments andattorneys who handle real estate and fore-closure matters on a broader scale willgain information on and insights into thenuances of the system, the ever-changingstatus of relevant laws, and the kinds offoreclosure defenses that prove effective.

Both the seminar on representing veter-ans and the foreclosure settlement confer-ence training represent opportunities forattorneys to gain new skills and expandtheir areas of expertise. Perhaps moreimportant, both programs provide a wayto return to the reasons many lawyersentered the law in the first place: to pro-vide help and guidance for those in need.

To register for either program, see theCLE advertisement in this publication orcall the Academy of Law at 631-234-5588.

– Dorothy Paine Ceparano (Academy Executive Director)

ACADEMY OF LAW NEWS

ACADEMY

Calendarof Meetings & Seminars

Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because ofconditions beyond our control CLE programs involve tuition fees; see the CLE Centerfoldfor course descriptions and registration details. For information, call 631-234-5588.

March22 Monday Matrimonial Update (Stephen Gassman). 6:00–9:00 p.m.

Sign-in and light supper from 5:30 p.m.23 Tuesday Roth IRAs. Lunch ‘n Learn. 12:30–2:10 p.m.

Sign-in and lunch from noon.24 Wednesday The Art of Negotiating. Lunch ‘n Learn. 12:30–2:10 p.m.

Sign-in and lunch from noon.25 Thursday East End: Marketing for Lawyers. Lunch Program at the Four

Seasons Caterers (15 Prospect Street, Southampton). 12:30–3:00 p.m. Lunch and sign-in from noon.

April7 Wednesday Annual Animal Law Seminar: Representing Not-for-Profit

Animal Related Organizations. 6:00–9:00 p.m. Sign-in and vegan-vegetarian supper from 5:30 p.m.

8 Thursday Five Kinds of Annuities. Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

8 Thursday Civil Enforcement of Money Judgments through the Sheriff’s Office. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

12 Monday Representing Veterans & Active Service Personnel. Free to those who take a pro-bono case. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

13 Tuesday Ethics in Transactional Practice (Commercial-Corporate // Real Estate). Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.

13 Tuesday Practice Management Roundtable: Scheduling & Time Management. 4:30–5:45 p.m. Sign-in and snacks from 4:15 p.m.

15 Thursday Views from the Bench: Family Court. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

16 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Breakfast buffet. All SCBA members welcome. NOTE change of date to the third Friday of the month.

22 Thursday East End: Bankruptcy Basics. The Four Seasons Caterers (15 Prospect Street, Southampton). 5:00–8:00 p.m. Light supper from 4:30 p.m.

23 Friday Elder Law Boot Camp. Full Day. 9:00 a.m.–4:00 p.m. Sign-in and continental breakfast from 8:30 a.m.

27 Tuesday Foreclosure Settlement Conferences: Changes in the Law & Practice Tips. 4:00–8:00 p.m. Sign-in from 3:30 p.m. Boxed supper at break. Free to those who take a pro-bono case.

28 Wednesday High Conflict Divorce. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

29 Thursday Medicine in the Courtroom. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

Check On-Line Calendar (www.scba.org) for additions, deletions and changes.

The Pro Bono PathwayFree Tuition . . . New Skills . . . Rewarding Service!

More Academy Newson pages 25;

CLE Course Listings on pages 22-23

ACADEMY OF LAW OFFICERS

Gail BlasieMichael S. BradyD. Daniel Engstrand, Jr.Richard V. RappaportWayne J. SchaeferRobert G. WilkNancy E. Ellis

Diane K. FarrellRichard L. FilibertoAllison C. ShieldsJohn C. ZaherHerbert (Skip) KellnerMarilyn Lord-James

Lynn Poster-ZimmermanGeorge R. TilschnerHon. Stephen UkeileyRobin S. AbramowitzBrian DugganGerard J. McCreightDaniel J. Tambasco

DeanRichard L. Stern

Executive DirectorDorothy Paine Ceparano

LI Life Calendar - SCBA · “Between Two Worlds: My Life And Captivity In Iran” Introductory Remarks by Joye Brown, Journalist, Newsday Tuesday, May 11, at 6:00 p.m. Bar center

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