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The Journal of The nassau CounTy Bar assoCiaTion

September 2017 www.nassaubar.org Vol. 67, No. 1

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ON ETHICS Does an Avvo Legal Services Marketing Fee Constitute an Improper Payment? 2NCBA COMMITTEE MEETING CALENDAR Page 20We are pleased to announce the formation of the LGBTQ and Mental Health Committees of the Nassau County Bar Association and invite you to participate. Please contact Stephanie Pagano at [email protected] if you would like to be a member of one of these committees in formation.

SAVE thE DAtESOKTOBERFEST @ the BarWednesday, September 27, 20175:30-9:00 p.m.$35 per personSee Insert and pg 6 for details

WE CARE An Evening of Fabulous Las Vegas EntertainmentSaturday, October 14, 2017Details see pg 19

JUDICIARY NIGHT“NEW DATE”Tuesday, October 17, 20175:30 p.m. at DomusDetails pg 6

OPEN HOUSEThursday, October 26, 20173-5 p.m. & 7-9 p.m.Volunteer lawyers needed to give consultationsContact Gale D. Berg (516)747-4070 or [email protected]

WhAt’S INSIDEReal Estate/Municipal Law A Park is a Park is a Park Page 3Zombie Properties and a New Legislative Remedy Page 5A Working Guide to Federal Register Notices Page 6Land Bank 101 Page 7A New Opinion on an Old Rule Page 8Defending Against a Notice of Pendency Page 9Best Presentation Practices for Gross Floor Area Variances Page 10Village Governments: The Inviolability of the Executive Session Page 11VIEW FROM THE BENCH The Court of Appeals on Photos from the Web and Post Note of Issue Discovery-When and Why Page 16

OF NOtE NCBA Member Benefit - I.D. Card PhotoObtain your photo for Secure Pass Court ID cards at NCBA Tech Center Only For New ApplicantsCost $10 ● October 11, 12 & 13, 20179 a.m.- 4 p.m.

UPCOMING PUBLICATIONS COMMITTEE MEETINGSThursday, Sept. 14, 2017 12:45 p.m. at Domus

Thursday, Oct. 12, 2017 12:45 p.m. at Domus

2017-2018 Elected NCBA BOARD OF DIRECTORS

Executive Committee

Martha KriselImmediate Past

President

Steven G. Leventhal President

Elena KarabatosPresident-Elect

Richard D. CollinsVice President

Newly Elected Directors

Adam D’Antonio‘18

Christie R. Jacobson

‘18

James P. Joseph‘18

Gregory S. LisiSecretary

Kevin P. McDonough

‘18

Sondra K. Pardes

‘18

Jennifer Rosenkrantz

‘18

Ross L. Schiller‘18

Peter B. Skelos‘18

Mary Ann Aiello‘20

Dorian R. GloverTreasurer

Kevin P. Mulry‘19

Andrea M. Brodie‘19

Lisa A. Cairo‘19

Christopher J. DelliCarpini

‘19

Maureen Dougherty

‘19

Mark E. Goidell‘19

Martha V. Haesloop

‘19

Mili Makhijani‘20

Thomas B. Wassel‘19

Samuel J. Ferrara‘20

Linda J. Mejias‘20

E. Christopher Murray

‘20

Mary P. Giordano‘20

Jennifer L. Koo‘20

Ira S. Slavit‘20

Continuing Term Elected Directors

Each fall, members look forward to receiving the annual Nassau County Bar Association Membership Directory. The Directory provides useful information in one desk reference book. The annual directory is a popular benefit of NCBA membership. Members are listed alphabetically with their contact information. Committees and their members are included as well. (Members can opt out of the listings.) The Directory also supplies information about the NCBA, the courts, legal organizations and other helpful resources. Hon. Thomas A. Adams, Administrative Judge in Nassau County said, “The Nassau County Bar Association Directory is an invaluable source of information for the legal community. It has been for many years, and continues to be the quintessential guide to easily access accurate and current Court and attorney reference information.”

NCBA MEMBERS ONLYAnnual Membership Directory

RENEW YOUR NCBA MEMBERSHIP TODAY!If you do not renew, you will miss out on:

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“The nation behaves well if it treats its natural resources as assets which it must turn over to the next generation increased, and not impaired, in value.” Theodore Roosevelt.

New York has long treated park prop-erty with a special reverence, and any attempt by a local government to use designated park property for any other purpose is fraught with peril. This princi-ple was recently illustrated by the Court of Appeals June 6, 2017 deci-sion in Matter of Avella v. City of New York et al.1

This case involved the re-development of the former Shea Stadium property which, believe it or not, is legally con-sidered parkland, and is subject to the Public Trust Doctrine.

The Public Trust DoctrineIn 2001, the New York Court of

Appeals took note that the ancient Public Trust Doctrine remains a vibrant legal principle in New York. The his-tory of this doctrine is examined in Friends of Van Cortlandt Park v. City of New York,2 where the Court reaffirmed that public property which has been designated as parkland is held in public trust, such that the property may not be used for any other purpose without authorization from the New York State Legislature.

Van Cortlandt Park examined prece-dents from the Court of Appeals, begin-ning with Williams v. Gallatin,3 in which the Court considered New York City’s proposed ten year lease of a building in Central Park to the Safety Institute of America. The proposed lease provided that the building would be improved by the tenant and used for safety education. At certain specified times, the building would be open to the public. In enjoining the lease, the Court concluded that Central Park is dedicated to public use for park and rec-reational purposes, for the promotion of public health, safety and welfare, and uses which are inconsistent with park purposes, no matter how worthy, are an impermissible deviation from the authorized purposes.

The Court of Appeals again had occa-sion to examine this principle in 755 Fifth Ave. v City of New York,4 where the Court allowed a café and restau-rant in Central Park. Based on the particular facts of that case, the Court concluded that the proposed restaurant was within the ambit of uses which the Park Commissioner was authorized to introduce to the park, and were consis-tent with and promoted the recreation-al use of the park property. However, this decision turned to a large extent on the particular language of the State legislation authorizing use of Central Park, so that it is not necessarily per-suasive with respect to similar uses of other park property.

In 1972, the Court again spoke with respect to permissible uses of park and recreation property, and rejected

a proposed five year lease of property to permit private operation of a dock and related facilities at Lake George. In Lake George S. B. Co. v. Blasio,5 the Court ruled that this constituted an unlawful diversion of public park property for a private use, which could be accomplished only with the consent of the State Legislature (which, in this case, was lacking).

The Court then had two occasions in 2014 to opine further upon these principles.

In Union Sq. Park Community Coalition v. New York City Dept. of Parks & Recreation,6 the Court per-mitted a restaurant in Union Square Park pursuant to a license agreement. (Assuming that a lease would be pro-hibited by court precedents, the City here proposed a revocable license agreement. Claiming that this was a distinction without a difference, the opponents argued that it was tanta-mount to a lease, and was an unlawful interference with park property). The Court reviewed its previous decision in 755 Fifth Ave.,7 and concluded that each case involving a use of public park property required an examination of several factors, including the conditions upon which the property was dedicated to park use, the terms and conditions for operation of the proposed use, and the degree to which the public would be excluded from use, in order to iden-tify the true nature of the underlying transaction. Concluding that this trans-action involved a license, which was authorized by statute, no other legisla-tive approval was required.

However, in Capruso v. Village of Kings Point,8 the Court reached the opposition conclusion with respect to a village’s proposed use of parkland for a public works facility. The Village had in fact been using the park property for non-park purposes for a number of years, but its new effort to construct the public works facility on the property aroused opposition by neighboring own-ers of private property. The State of New York also joined in the litigation. After resolving several procedural issues, the Nassau County Supreme Court enjoined the proposed use, and the Appellate Division, Second Department affirmed.9 Noting that the status of the property as

parkland was undisputed, and conclud-ing that the proposed use was a use of a substantially different scale, the Court of Appeals affirmed.

Matter of AvellaWith the foregoing history of the

Public Trust Doctrine in mind, Avella brought to the Court of Appeals a mixture of issues predicated upon the

established principles of that doctrine and the specific legislation for the re-development of Shea Stadium.

It may not be commonly known, but Shea Stadium and its related facilities were located in Flushing Meadow Park, an area clearly subject to the Public Trust Doctrine. In an effort to recover

A Park is a Park is a Park

A. Thomas Levin

See PARK PARK, Page 23

DepositPhotos

Nassau Lawyer n September 2017 n 3

3

Real Estate/Municipal Law

Published by Long Island Business News (631) 737-1700; Fax: (631) 737-1890

Publisher DesignerScott Schoen Michael Duntz

Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright ©2015. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

The Official Publication of the Nassau County Bar Association15th & West Streets, Mineola, N.Y. 11501Phone (516) 747-4070 • Fax (516) 747-4147

www.nassaubar.orgE-mail: [email protected]

Nassau LawyerNassau Lawyer

NCBA OfficersPresidentSteven G. Leventhal, Esq.President-ElectElena Karabatos, Esq.Vice PresidentRichard D. Collins, Esq.TreasurerDorian R. Glover, Esq.SecretaryGregory S. Lisi, Esq.Executive DirectorKeith J. Soressi, Esq.

Editors-in-ChiefRhoda Y. Andors, Esq. Anthony J. Fasano, Esq.ProofreaderAllison C. Shields, Esq.Editor/Production ManagerSheryl Palley-EngelAssistant EditorValerie ZurblisPhotographerHector Herrera

September Editorial Staff Real Estate/ MunicipalThomas Mckevitt, Esq. Focus EditorRhoda Y. Andors, Esq.Wahida Bhuyan, EsqChristopher J. DelliCarpini, Esq.Anthony J. Fasano, Esq.Nancy E. Gianakos, Esq.Nicole Lubell, Esq.Jeff H. Morgenstern, Esq.

Upcoming Focus IssuesOctober 2017GeneralNovember 2017Criminal LawDecember 2017Commercial/Bankruptcy/Tax Law

Committee MembersRhoda Y. Andors, Esq., Co-ChairAnthony J. Fasano, Esq., Co-ChairCynthia A. Augello, Esq.Deborah S. Barcham, Esq.Gale D. Berg, Esq. Wahida Bhuyan, Esq.Sean E. Campbell, Esq.Deanne Marie Caputo, Esq.David Z. Carl, Esq.Ellin Regis Cowie, Esq.Christopher J. DelliCarpini, Esq.Nicole Donatich, Esq.Avrohom Gefen, Esq.Nancy E. Gianakos, Esq.Avigail Goldglancz, Esq.Robert S. Grossman, Esq.Adrienne Flipse Hausch, Esq.Charles E. Holster III, Esq.George M. Kaplan, Esq.Patricia Kessler, Esq.Krista L. Kulp, Esq.Kenneth J. Landau, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Nicole Lubell, Esq.Cheryl Y. Mallis, Esq.Angelica M. McKessy, Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.Sasha A. Navarrete, Esq.Alissa K. Piccione, Esq.Marian C. Rice, Esq.Daniel W. Russo, Esq.Michael A. H. Schoenberg, Esq.Allison C. Shields, Esq. David Torreblanca, Esq.James W. Versocki, Esq.Augusta J. Young, Esq.

Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.

THE CON-CON: PROS AND CONS“Shall there be a convention to

revise the constitution and amend the same?”

Once every twenty years, New York voters consider this question at a mandatory referendum,1 as they will on November 7, 2017. If the question is decided in the affirmative, delegates will be selected in 2018, and a Constitutional Convention will be con-vened in 2019. Any amend-ments to the Constitution would be subject to voter ratification. Historically, nine Constitutional Conventions have been approved by New York vot-ers, including three in the 20th Century—1915, 1938, and 1967. In 1997, the ref-erendum was defeated.

Last June, the New York State Bar Association House of Delegates endorsed a commit-tee report supporting a Constitutional Convention. The report, prepared by the NYSBA Committee on the New York Convention, is available at: www.nysba.org/nyconstitution/#Re-ports. This month, I will ask our Board of Directors to decide what position, if any, the Nassau County Bar Association should adopt on this important issue.

Past President Tom Levin served as a member of the State Bar Committee, and graciously summarized the argu-ments developed in support of, and in opposition to, a Constitutional Convention.2 With thanks to Tom, this article is largely based on his more complete summary.

A. Arguments in support of a Constitutional Convention

1. A Convention could streamline and modernize the Constitution

The current, 52,000-word Constitution was adopted in 1894, and has been amended over 200 times, including sub-stantial change incorporated after the Constitutional Convention of 1938. Many of its provisions are outdated or obsolete, unconstitutional based on decisions of the United States Supreme Court, or more appropriately subjects for legisla-

tion. A streamlined Constitution would be more widely read and understood.2. A Convention is needed to fix basic structural problems of State Government

Article VI (Judiciary) of the State Constitution establishes a court sys-tem that has been described as “byz-antine” and the most complex in the nation. The New York State Special

Commission on the Future of the New York State Courts concluded that these structural inefficiencies cost the State, local municipalities, and liti-gants approximately $502 million per year.3

The effects of growing calendar congestion make litigation ever more pro-tracted, expensive and less helpful as a means of resolving disputes. The Second Department has been described as the bus-iest intermediate appellate court in the nation. Its web-site4 states that:The Federal census of the United States in 2000 revealed that the 10 counties of the Second Department contained 51.75% of the State’s resi-dents, a population exceed-ing that served by the three other departments com-bined. The court now has

37% of the Justices assigned to the Appellate Division state-wide and in 2001 it produced 42% of all Appellate Division dispositions of argued or sub-mitted cases.

Suffolk County Bar Association President Patricia Meisenheimer and I have appointed a joint task force to explore the feasibility of creating a fifth judicial department to hear and decide appeals from the Long Island trial courts. A Constitutional Convention could more efficiently dis-tribute the appellate caseload among the departments of a restructured Appellate Division.

Article IX (Local Government) does not effectively give local governments autonomy over matters of purely local concern. Significantly, it offers no pro-tection against unfunded mandates.3. A Convention would provide an opportunity to establish new positive rights.

The State Constitution does not rec-ognize the right to marriage for same-sex couples, or reproductive rights. These rights, recognized by the United States Supreme Court, and other new rights such as modernized voter reg-istration procedures could be incorpo-rated in a newly adopted Constitution.

4. There is no other practical means of enacting needed reforms.

Absent a Constitutional Convention, an amendment to the State Constitution may be enacted only upon adoption by two consecutively elected legislatures and ratification by a majority of voters. In the past 20 years, the Legislature has not used this method to fix the Constitution’s many deficiencies.

B. Arguments in opposition to a Constitutional Convention

1. Cherished Constitutional Rights would be placed at risk

In many significant ways, the State Constitution affords more lib-eral protection of individual liberty, social welfare and the environment than is afforded by the United States Constitution, including the right to a free education,5 a vigorous right to free speech,6 protection for the Adirondack and Catskill Parks,7 mandated “aid, care and support” for the needy,8 pension rights for public employees, and the rights to workers’ compensa-tion, union membership, and collec-tive bargaining.9 At a Constitutional Convention, all provisions, good and bad, would be on the table.2. Harmful new provisions could be added

In this era of political polarization, a Constitutional Convention could lead to controversial and divisive changes.3. Political interests will undermine a Constitutional Convention

Delegate selection will be based on the same State and Federal elec-tion laws that produce candidates for other elective offices, likely with simi-lar results, including disproportionate influence by well financed special inter-est groups favoring the status quo.4. Legislators and judges who serve as delegates will receive double salaries

The Constitution does not bar legis-lators and judges from simultaneous-ly serving as Convention delegates. Delegates are compensated at the same rate payable annually to mem-bers of the Assembly, regardless of how long the Convention lasts.10 The salaries paid to legislators and judges may not be reduced by statute during their terms.11 Such “double-dipping” by legislators and judges would not only have the effect of providing them with second annual salaries, it may also have the effect of enhancing their pensions.

Delegates to the 1967 Constitutional Convention included 24 judges and 13 legislators, comprising approximately 20% of the total number.5. A Convention is unnecessary

Because the Constitution may be amended through legislation adopted by two consecutively elected legisla-tures and ratified by the voters, a Constitutional Convention is unneces-sary and the associated risks and costs cannot be justified.6. A Convention will be expensive

The 1967 Constitutional Convention cost taxpayers nearly $15 million, or approximately $108 million adjusted for inflation. It is estimated that the cost of a 2019 Convention, including the cost of salaries for delegates and staff, would be significantly higher.

From the President

Steven G. Leventhal

See PRESIDENT’S COLUMN, Page 24

A Constitutional Convention could result in significant changes to the operation of State and local government, the structure of the court system, and the rights of individuals.

4 n September 2017 n Nassau Lawyer

4

Zombie properties, or properties encumbered with unforeclosed-upon delinquent mortgages, which the owner has abandoned, are found in astound-ing numbers across New York State. Approximately one in three homes in the foreclosure process is abandoned prior to completion of the foreclosure.1

Zombie properties take blame for city and county blight, diminished surround-ing home and neighborhood values, scenes of criminal activity and as refuge for squatters. They serve as a stark reminder of the fragility of what is argu-ably a cornerstone piece of the proverbi-al “American Dream,” homeownership.

In June 2016, with an eye toward preventing foreclosures, curbing zom-bie property community threats and helping people stay in their homes despite financial challenges, Governor

Andrew M. Cuomo signed into law Chapter 73 of the New York Code, New York’s 2016 Zombie Property and Foreclosure Prevention Act (the “Act”). This sweeping legis-lation sets forth guidelines to aid in the inspec-tion, securing and maintenance of vacant and aban-doned residential

real property;2 provides for an expedited application for judgment of foreclosure and sale for such vacant and abandoned property;3 and creates a municipally-ac-cessible statewide electronic registry, whereby municipalities can most eas-ily determine who is responsible for a property and whether the property is in foreclosure.4

This article concentrates on the Act’s abandoned property inspection and maintenance prong, with a specific focus on municipal enforcement author-ity, restrictions and liability risk.

Is It an Abandoned Property?Pursuant to the Act, a servicer,5 who

after conducting inspections pursuant to the Act,6 has a reasonable basis to believe that a property is vacant and abandoned, has to secure and maintain the property.7

In addition to the Act’s stringent requirements for maintenance, the ser-vicer must perform such maintenance in a manner consistent with the stan-dards set forth in the New York prop-erty maintenance code.8 Rendering a property eligible for an “abandoned property” label depends on the suc-cessful completion of the Act’s highly specific notice practices and occupan-cy-property monitoring.9 Should these requirements be met, the servicer then faces a rigorous maintenance deluge, ranging from changing locks and secur-ing, replacing or boarding up broken doors and windows, to addressing plumbing and heating systems, provid-ing for basic utilities, and removing and remediating any significant health and safety issues and code violations. All the while, the servicer must respond to government inquiries about the prop-erty condition and ensure the requisite notice remains in place and visible.10

These servicer obligations continue unless and until someone claims occu-

pancy, a borrower bankruptcy case is filed, the court orders no further proper-ty maintenance, the servicer can’t access the property, the property has been sold or transferred to a new owner, the ser-vicer has released the property lien, or the mortgage note has been assigned, transferred or sold to another servicer.11

Enforcement Rights: Share the Wealth

It is no wonder that given all the abandoned property “maintenance minutia” brought about by the Act and the New York Property Maintenance Code, servicer maintenance violations abound. Arguably no different than a standard code enforcement violation, abandoned property maintenance viola-tions may be enforced by a hearing offi-cer or court.12 And when civil penalties reach as much as five hundred dollars per day per property,13 no one can deny the substantial income source to the enforcing authority.

The Act authorizes two maintenance enforcement players: first, the New York State Department of Financial Services (“DFS”) and second, the munic-ipality in which the subject abandoned property lies.

In this vein, the Act authorizes the DFS to adopt rules and regulations “for the effective implementation, adminis-tration, operation and enforcement of the Act.”14 Arguably, this rule-promul-gating authority gives the State, via the DFS, the upper “enforcement hand,” because it controls the very rules by which it must abide. While its rules are meant to facilitate enforcement efforts,15 the absence of definitions con-cerning its own “pursuit of violations”16 is noteworthy and may leave a munici-pality on uneven “enforcement ground” with its state counterpart.

The DFS itself lends support for this very argument. In response to a DFS pro-posed regulations comment alleging an “unduly narrow” enforcement scope, the DFS responded that, “authority granted to the municipality is ‘in addition’ to the authority given to the Superintendent.” As applicability of the Act takes shape over time, the DFS may be able to better define what it means to pursue violations and incorporate that definition into its rules and regulations. This would create a clearer understanding of the role of the DFS in relation to the municipality and would set a baseline for enforcement expectations.

Furthermore, the Act obligates the municipality to provide to the DFS ten days’ enforcement notice to the DFS Superintendent, who is primarily responsible for the efficient and non-du-plicative enforcement of the statute.”17 However, the DFS is not required to supply similar enforcement notice to the municipality where the property is locat-ed, but rather only seven days’ notice to the servicer. This “one-way” notice requirement leaves the municipality at risk of expending resources for mistaken duplicative enforcement. Moreover, the state’s arguably advantageous enforce-ment position is cemented by the munic-ipality’s equally restrictive rule-making power. A municipality cannot impose duties, penalties or monetary obliga-tions in a manner that is inconsistent with the Act, including against lenders who are not covered by it.18 It also may not impose a local law, ordinance or resolution to maintain vacant and aban-

doned property for which the provisions of the Act do not apply.19

While the Act precludes a munici-pality from imposing more stringent enforcement procedures than its State counterpart, both entities would benefit from receipt of the ten days’ enforce-ment notice requirement. Dual notice, to include municipality to DFS and vice versa, would drastically reduce the chance of duplicative enforcement,

thereby saving personnel and mone-tary resources. The future expansion of the Act’s newly-created Section 1310, which currently provides for a munic-ipally-accessible statewide electronic registry aimed at correcting the prior lack of information concerning the exis-tence of vacant and abandoned prop-erties,20 may conceivably also include

Nicole Lubell

Zombie Properties and a New Legislative Remedy

See ZOMBIE PROPERTIES, Page 24

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5


The Federal Register Notices (FRNs) cover every federal agency, truly from A to Z,1 and are crucial interpretations of federal law and of the powers and limitations of federal agencies. During

my two-year stint (2014-2016) con-sulting with the New York State Governor’s Office of Storm Recovery (GOSR) on its post-Superstorm Sandy infrastruc-ture rebuild, I worked for the very first time in my many decades of practice with the Federal Register Notices that issue each

weekday. Although daunting at first, I quickly learned to appreciate the value of this tool and the density and depth of the content. With diligence and modern technology, any practitioner can read-ily determine the impact of the latest Notices on their clients.

Daily Updates to Your InboxThe Federal Register allows anyone

to subscribe to daily e-mail updates on Notices in areas of interest. To sub-scribe to this invaluable resource, log on and select the agencies relevant to your clients.2

When registering to receive emails, a subscriber should narrowly tailor the daily content to a particular agency through advanced search functions. For example, in researching and writing this article, I selected June 28, 2017 as a “typical” FRN issuance, and deter-mined that 37 agencies issued 89 docu-ments, which included seventy notices, nine proposed rules, and ten rules. Three “Significant Notices” also issued.

I continue to subscribe to the daily emails and spend approximately five minutes each morning scanning the Federal Register Table of Contents3 for any regulation or interpretation rele-vant to the numerous Nassau County agencies, in my role as a Deputy County Attorney in the Office of the Nassau County Attorney. I then distribute the PDF of the FRN to Nassau County’s agencies and departments potentially impacted by the regulation to be sure that each agency has ample time to:

• evaluate any funding opportunities

• weigh in on any proposed changes through comment periods

• take advantage of a new waiver or interpretation, or

• understand resources resulting from grants and awards.

When an FRN is relevant to a par-ticular issue, it requires a fine-tooth reading; each FRN is detailed and cum-bersome and replete with deadlines and nuances. Hidden in the very tiny print, however, is a multitude of municipal opportunities and obligations. Because of the range of services provided by Nassau County to its residents, I sub-scribe to and skim the entire FRN

index; however, an email recipient can tailor the daily content received to e.g., a particular agency through advanced search functions when registering to receive emails.

Interpretive vs. Procedural NoticesInterpretive FRNs issued subse-

quent to PL 113-2 addressed the inter-play of federal agencies and—in lim-ited instances—carved out exceptions. Again, analysis is painstaking and par-ticularly important, because violations of the requirements, including dupli-cation of benefits, can result in claw backs of funding. The PL 113-2 funding in particular was specifically allocated toward projects approved in New York State’s Action Plans and Action Plan Amendments and this was clarified and regimented through the FRNs. The FRNs also mandated that procurement of professional services as well as con-struction services had to be spent in accordance with federal, state and local procurement policies and procedures.

Some FRNs that issue are proce-dural; for example, federal agencies frequently seek comments on proposed regulations and announce comment periods and procedures.4 Other (more exciting) notices announce Notices of Funding Availability (NOFA), which provide new and repeat funding streams for myriad municipal and — in some cases — not for profit initiatives. Still others provide waivers or alterna-tive regulations that amend, expand or in some cases replace earlier FRN provisions.5 On any given day, a repre-sentative set of notices runs the gamut from Presidential Proclamations (e.g., Special Observances: Flag Day and National Flag Week) to regulatory and procedural notices from the Centers for Disease Control and Prevention on Permit Applications on Import Dogs Inadequately Immunized Against Rabies.6

Example: Parsing the Notices on Sandy Relief

To understand the role of an FRN, I offer the following example. In 2013,7 the federal government enacted Public Law 113-2,8 known as the Disaster Relief Appropriations Act, responsive to the devastation of Superstorm Sandy in New York and New Jersey.9 One com-ponent of the federal law broadly autho-rized funding for resilient repairs and restoration of housing and infrastruc-ture; the United States Department of Housing and Urban Development (HUD) was selected to distribute the funds through its 40+ year old Community Development Block Grant (CDBG) program. Specifically, the $3,850,000,000 in funding was to be distributed through HUD’s CDBG-DR program; the “DR” stands for “Disaster Recovery.”

The enactment of PL 113-2, however, was just the very first step. Through a series of FRNs, the funding was allo-cated in three phases, with extremely detailed requirements, followed by more

A Working Guide to Federal Register

Notices

See GUIDE TO FEDERAL REGISTER, Page 24

Martha Krisel

Wednesday, September 27, 20175:30 - 9:00 p.m.$35 per person

NCBA Members and Guests

Back by popular demand...Live Music by

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TO REGISTER SEE INSERT IN THIS ISSUE or ON-LINE @ NassauBar.org Calendar/Special Events

Questions? Contact Special Events (516)747-4070 or email [email protected]

Oktoberfest Event Sponsors:LexisNexis ● PrintingHouse Press SmartAdvocate●

Join the Officers, Directors and Members

of the Association as we salute the Judges of our County

Judiciary Night

Tuesday, October 17, 2017 5:30 p.m. at Domus

$75 per person NCBA members$135 per person non-members

Watch the mail for your invitation!Questions? Contact Special Events

(516)747-4070 or [email protected]

Due to a conflict with the Diwali holiday, Judiciary Night has been rescheduled for

NEW DATE!


6


Hearing the term “land bank” may harken one back to middle school American History textbooks, to an era in America which predates the United States itself. Originating during the colonial period, land banks operated principally as public institutions orga-nized by local colonial governments

to solve a public issue: the mar-ket needed trust-worthy, liquid, fungible resourc-es for local trade. Thus, land banks offered fiat money secured by real property to pro-mote business and trade.1

Of course, fun-gibility is no longer a modern issue. With the wide

range of modern transactional options from paper or plastic to the oft-misun-derstood cryptocurrencies, land banks exist today for a very different purpose. Throughout the nation, land banks have been created by state legislation as a device to promote property reinvestment and combat blight.

Modern Land BanksThe proliferation of modern land

banks began in the 1970s in Michigan, Ohio and Missouri in response to the exodus of heritage industry in those regions and resulting struggle with unproductive properties sitting idle. After the financial mortgage crisis of the mid-2000s and corresponding surge in dilapidated property, especially housing, the land bank model was adopted else-where, including in New York.

The organizational framework var-ies to include governmental units, pub-lic authorities or not-for-profit orga-nizations with a special “land bank” public purpose. In some states, where the land bank is a governmental unit, it acts as steward of tax delinquent or foreclosed properties by operation of law. In New York State, the enabling legislation authorizes sponsoring local municipalities to found land banks organized as not-for-profit corpora-tions.2 These non-profits may target vacant, abandoned and tax delinquent or tax foreclosed real property for revi-talization efforts, and are granted wide discretionary powers to acquire, hold, manage, repurpose and/or develop such property. In addition, a special “trump bid” provides a strategic link to the tax foreclosure process.3

New York Land BanksHowever, New York legislation sets

responsible limits. New York Land banks lack powers of eminent domain,4 are regulated public authorities subject to audit by the State Comptroller,5 and must provide the municipality and public with current information about its policies and activities.6 While many land bank programs might not be taxpayer financed, these institutions’ activities, often coordinated with local government, demand public account-ability and transparency. Indeed, land banks hold public board meetings and must conduct public hearings before engaging in major activities.7

A touted advantage of the New York-style legislation is more flexible activi-

ties and goals.8 While local municipali-ties are permitted to undertake devel-opment efforts on specific geographic areas,9 land banks can engage problems systemically; for example, approaching “scatter site” properties. Furthermore, land banks may promulgate programs tailored to local issues, such as historic preservation, affordable and veteran’s housing, wildlife conservation, open space development, and a myriad of other localized development interests.10

BenefitsThe resulting benefits can be mul-

tifaceted. Successful land banking activities are linked to increased prop-erty values, new and long-term tax revenues, reduction of crime, fire and other hazards, as well as improvement to a subject neighborhood’s physical condition and morale.11 Land banks have been successful not only in land assemblage and redevelopment, but can be an effective tax enforcement mechanism.12 Even in communities like Nassau County, where property tax enforcement is strong, a successful tax lien sale does not necessarily equate to best results for property development or long-term use. Thus, land banking can provide a critical role in furthering community-driven goals for property redevelopment. For example, a cur-rent development is how communities leverage land banking for brownfield development.13

Too often, substantial and uncertain remediation costs, coupled with the inability of a municipality to resolve the same due to legal, policy or budgetary impediments, often hinder marketing or obtaining any development proposal for a brownfield property. Land banks can assist in restoring brownfield prop-erties to productive use. By providing initial environmental site assessments and leveraging not-for-profit corpo-ration status for more versatile deal structuring, land banks mitigate uncer-tainty and provide a clear arrangement for repurposing brownfield assets via public-private partnership.

Here in New York, the Suffolk County Landbank took a managerial approach. Rather than taking title to an environ-mentally challenged property, the land bank took assignment of tax liens to coordinate development for the munici-pality. Such method can be expected to reduce municipal burden by removing the County from the chain of title and transferring the interest, along with calculated remediation liability, to the voluntary project owner.

Recent LegislationFurthermore, recent 2016 legisla-

tion permits New York land banks a new power: establishing subsidiaries to “limit the potential liability impact” of a project or set of projects.14 These waters have yet to be tested, and our communi-ties may garner support for incorporat-ing this tool in revitalizing unproduc-tive brownfield assets. Other programs encourage the intersection between land banks’ mission to reduce blight and the state-wide push for affordable hous-ing. Thus, most New York land banks have programs connecting “zombie” properties with developing affordable housing.15 Land banks received funding stemming from mortgage-backed secu-rity lawsuit settlements, obtained and directed by New York State Attorney

General Eric Schneiderman.16 These programs have resulted in thousands of properties acquired, remediated and sold, and millions in new tax revenues.17

Despite the promise of land bank resurgence, given the broad mandate to address particularly troublesome prop-erties, it is not surprising that funding is a main concern. Since the essence of land banking is targeting properties

that the market has essentially ignored, public support will be necessary for the best outcome. For some projects, this means expunging tax liens for the benefit of the land bank. For others, tax increment financing (TIF) may be a critical component coordinated with the municipality. Ultimately, however,

David A. Ragonetti

Land Bank 101

See LAND BANK, Page 21

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On April 4, 2017, the New York State Bar Association Committee on Professional Ethics issued Opinion 1117,1 wherein the Committee provided addi-tional guidance to attorneys that may, from time to time, also serve their cli-

ents as real estate brokers. Although the Committee on Professional Ethics has issued numerous opinions relating to attor-neys acting as real estate brokers, Opinion 1117 spe-cifically addresses whether a lawyer serving as a bro-ker earning a com-mission in a real estate transaction

may still provide legal services to the purchasers in that same transaction if the legal services provided are rendered pro bono and free of charge.

The Attorney and BrokerThe inquiring attorney (the “Inquirer”)

in Opinion 1117 presented the following facts to the Committee:

• The Inquirer is both an attorney and a licensed real estate broker.2

• Long time clients and personal friends (“the Purchasers”) of the Inquirer are looking to purchase property and have requested that the Inquirer serve as their real estate broker and attorney.3

• The Inquirer, as the Purchasers’ real estate broker, would receive a brokerage commission from the seller (assumed to be a percentage of the sale price of the real estate for the purposes of the Opinion).4

• In consideration of the Purchasers’ limited financial resources, the Inquirer has agreed to render its legal services pro bono.5

• Generally, a lawyer receiving a broker’s commission in a real estate transaction may not also serve as a lawyer in the same transaction.6 The Committee on Profession Ethics has opined on numerous occasions that “a lawyer should not have a personal stake in the advice rendered, and a broker who is paid only if the transaction closes cannot be fully independent in advising the client as a lawyer.”7 Such dual representation gives rise to a personal conflict of interest under Rule 1.7 of the New York Rules of Professional Conduct (the “Rules”).

Rule 1.7According to Rule 1.7, “a lawyer

shall not represent a client if a rea-sonable lawyer would conclude that… there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.”8 Restated simply, a lawyer shall not represent a client where the attorney’s personal interest may con-flict with the best interest of the cli-

ent—an issue that can arise when an attorney serves as both attorney and commissioned real estate broker, and the attorney’s personal stake in the matter (i.e., the real estate commis-sion) may potentially adversely affect the attorney’s professional judgement.

Non-Consentable ConflictRule 1.7, however, further provides

that a conflicted attorney may still rep-resent a client if, inter alia, the affected client gives informed consent in writ-ing.9 Although an affected client may be willing to waive the conflict and provide informed consent on the basis of trust or belief that the attorney can competent-ly and diligently represent the client notwithstanding the personal conflict, such conflicts cannot be consented away. In particular, the Committee acknowl-edged that because a broker’s fee is typ-ically “substantially greater”10 than that of a lawyer, there is heightened risk that a practitioner’s professional judgment could be adversely affected. Therefore, the Committee ruled that such a con-flict is “nonconsentable” (non-waivable), meaning that the prohibition cannot be overcome through disclosure and client consent.”11

An Exception to the Rule Despite the non-waivable nature of

an attorney’s personal conflict when representing a client as both attorney and real estate agent, the Committee on Professional Ethics has carved out a particular exception in prior Ethics Opinions that can allow an attorney to ethically serve as a client’s legal counsel and commissioned real estate broker. For example, in Opinion 1015, the Committee considered a situation in which an attorney, who was also a licensed real estate broker, proposed serving as both attorney and real estate broker for a seller of real property, sub-ject to the condition that the commis-

sion for the broker services rendered would be a fixed, non-refundable fee that was not contingent on the sale of the client’s property.12 Under these con-ditions, the Committee opined that so long as the attorney’s clients provided informed consent to any other poten-tial conflict arising under the Rules, the inquirer could serve in both roles without conflict because the non-con-tingent nature of the broker’s commis-sion reasonably rendered the risk of the attorney’s professional judgment being adversely affected by its person-al interest in the broker’s commission non-existent.13

The facts presented by the Inquirer in Opinion 1117 are easily distinguish-able from those present in Opinion 1015. Unlike Opinion 1015, in which the Committee found “no reason to believe that the lawyer’s professional judgment would be adversely affected by the law-yer’s interest in that [non-contingent] broker’s fee,”14 the Inquirer’s potential real estate commission is still contin-gent on the closing of title for the real property and thereby creates a non-consentable conflict. To wit, under the facts provided, the Inquirer’s potential real estate commission becomes all the more important as the potential real estate commission is the Inquirer’s sole stream of revenue in the transaction because the Inquirer proposes to ren-der its legal services pro bono to the Purchasers. This greatly increases the risk that the Inquirer’s professional legal judgment may be adversely affect-ed, as a reasonably attorney would conclude that the Purchasers’ interest in the transaction could be subject to the Inquirer’s own financial interest in making sure the transaction closes to ensure compensation.15

The TestThe other facts presented by the

Inquirer were otherwise unmoving to the Committee. The fact that the

Purchasers requested the Inquirer act as both attorney and real estate bro-ker for the transaction does nothing to mitigate the risk that Inquirer’s profes-sional legal judgement may be adverse-ly affected by the Inquirer’s potential real estate commission.16 Moreover, this is precisely why such a conflict is non-waivable.

Similarly, even though the real estate commission to be earned by the Inquirer would be paid by the sell-er, at no cost to the Purchasers, the risk of the Inquirer’s personal conflict would not be mitigated, because the risk that the Inquirer’s legal judgment could still be adversely affected by the contingent nature of the commis-sion would be present, regardless of which party pays the commission.17 Although the Committee acknowledged that the Inquirer’s existing longtime relationship with the Purchasers as both friends and clients could serve as “an adequate counterweight to the lawyer’s interest in the commission,” the Committee noted that to consider whether an attorney’s existing rela-tionship with a client is an “adequate counterweight” is simply too subjective to render the conflict waivable upon the purchasers’ consent.

Ultimately, the test in the Rules is based upon the objective standards of whether: (i) “a ‘reasonable lawyer’ would find a significant risk that per-sonal interest would compromise pro-fessional judgment;” and (ii) “whether the actual lawyer ‘reasonably’ believes there will be competent and diligent representation.”18 When reviewed under these objective standards, the Committee’s distinctions of the sce-narios presented in Opinion 1015 and Opinion 1117 are clear. Unlike Opinion 1015, in which the attorney removed the threat to professional judgment by agreeing to a fixed non-contingent commission, the Inquirer’s professional judgment may still be compromised by the Inquirer’s financial interest in mak-ing sure the transaction closes so that the Inquirer may collect its real estate commission.

Accordingly, a lawyer receiving a broker’s commission in a real estate transaction, contingent upon the clos-ing of said transaction, may not also serve as a lawyer, even in a pro bono capacity, as this creates a personal interest conflict under Rule 1.7 that a client cannot waive by consent.

Michael Barone, Jr. is an Associate at Sahn Ward Coschignano, PLLC.

1 New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1117 (2017).2 Id. at ¶ 1.3 Id.4 Id. at ¶ 2. 5 Id. 6 See New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1117 (2017) at ¶ 5.7 Id. (citing New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1015 (2014) (quoting New York State Bar Ass’n Comm. on Prof’l Ethics Op. 753 (2002) and citing later opinions)).8 Rule 1.7(a)(2).9 See Rule 1.7(b).10 New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1015 (2014) at ¶ 7.11 Id. at ¶ 7 (citing New York State Bar Ass’n Comm. on Prof’l Ethics Op. 919 (2012) at ¶ 3).12 Id. at ¶¶ 1-3.13 Id. at ¶ 8.14 Id.15 New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1117 (2017) at ¶ 8. 16 See id. at ¶ 10. 17 See id.18 Id. at ¶ 12.

A New Opinion on an Old Rule

Michael Barone, Jr.

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A notice of pendency (“NOP”) is a powerful, widely-used tool to help pre-serve a litigant’s claimed interest in real property. It is only effective if the litigant strictly complies with the numerous statutes governing the NOP. A litigant’s failure to do so may provide an aggrieved property owner or encum-

brancer with valid grounds to chal-lenge the NOP.

To defend against a NOP, a party needs to be proactive in discovering it and should move quickly to defeat it. Below is a brief review of the histo-ry of the NOP and an introduction to the many pos-sible grounds that a property owner

or encumbrancer may use to protect its property interest against a filed NOP.

HistoryThe NOP arose from the codification of

the common law doctrine of lis pendens. A lis pendens preserved the court’s power over the real property, and attached immediately upon service of process. Because a litigant was not required to index against the property any record of its action, the lis pendens doctrine placed the burden on non-parties to conduct onerous record searches to discover the litigant’s alleged interest.1

The terms lis pendens and NOP are now often used interchangeably to refer to the statutory-authorized document that a litigant is permitted to index against real property in the county clerk’s office where the property is located. A NOP may be used in a proper action without any prior judicial review to protect the filer’s property interest by binding to the proceedings of the action: (1) parties to the action and (2) any non-party to the action whose interest accrued after the NOP’s filing, or accrued before, but was not recorded until after, the filing.2

The filing of a NOP does not create any lien or right not in existence at the time of filing. It does, however, place the following on constructive notice of the filer’s alleged interest in the property and the relief requested in the action would “affect the title to, or the possession, use, or enjoyment of, real property:” (1) parties to the filer’s action; (2) parties whose interests in the property are recorded after the filing of the NOP; and (3) parties who were born between the NOP’s filing and the entry of judgment who would have been bound by the proceedings if born after the judgment.3 The filed NOP, therefore, impedes the alienability of the property,4 making it difficult for a party to effectively convey, encumber, or otherwise transfer its interest. The strict statutory requirements govern-ing NOPs help to check the privileges afforded filers and to protect interested parties from abuse.

Grounds for CancellationThere are many ways to attack the

NOP and to defend its property inter-est. Every case is fact-specific and the grounds discussed below are not exhaustive.

Under CPLR 6501, any litigant asserting a claim affecting the title to, or the possession, use, or enjoyment of, real property, may file a NOP.5 A NOP, however, may not be filed in a summary proceeding seeking to recover possession of real property, or in cases asserting an ownership interest in an entity that allegedly has an interest in real property.6 The pleading must state a claim on its face that justifies the NOP’s filing.7

If the filer fails to comply with CPLR 6501’s pleading requirements, an aggrieved party may move to vacate the NOP. On such a motion, the court’s analysis is limited to the pleading’s face; it cannot assess the filer’s likeli-hood of success on the merits.8 Where a court cancels a NOP under CPLR 6501, it may also award sanctions.9

A Subsequent NOPWhere the filer took advantage of

a different provisional remedy before filing the NOP, an aggrieved party may move to cancel the NOP under CPLR 6001, which may require a litigant to elect only one provisional remedy.10 An aggrieved party may move to vacate a defective NOP under CPLR 6511 and, if applicable, Real Prop. Acts. 1331, both of which set forth additional requirements for the filing and content of a NOP.

Under CPLR 6511(a), a litigant may file a NOP before or after service of the summons, but in no event later than judgment. CPLR 6512 provides that if the NOP is filed prior to service, then, in order for it to be effective, the summons must be served upon at least one owner of the property within 30 days of the NOP’s filing. CPLR 6512 also sets forth service requirements in the event of a publication order or the defendant’s death.

Where the filer fails to comply with CPLR 6512, an aggrieved party may move under CPLR 6514(a), which requires cancellation of the NOP under such circumstances. CPLR 6514(c) also permits the court in its discretion to award the moving party costs and expenses, including legal fees. A court, however, may overlook non-compliance with CPLR 6512 where the service could not be completed due to the mov-ing party’s evasive conduct.11

If the NOP is no longer justified, an aggrieved party may move under CPLR 6514(a), which requires cancellation of the NOP if the action has been settled, discontinued, or abated, or if the filer’s time to appeal from a final judgment has expired, or if the filer failed to obtain a stay under CPLR 5519.

An aggrieved party may also move under CPLR 6514(b), which permits a court in its discretion to cancel a NOP if the filer “has not commenced or pros-ecuted the action in good faith.” A lack of good faith exists where the filer has used the NOP for an ulterior purpose or engaged in dilatory tactics.12 A party moving under CPLR 6514 may also be able to obtain costs and expenses under CPLR 6514(c).

Time LimitsA NOP is only valid for three years

from the date of filing, but may be extended for additional three-year peri-ods for good cause shown. Under CPLR 6513, the filer must move to extend the NOP and have the order “filed, recorded and indexed” before the NOP expires. Except for certain exceptions

detailed below, a filer is not permitted to file subsequent NOPs affecting the same property. A NOP that has not been extended expires by operation of law and, unless an exception applies, is lost forever.13

A motion to cancel an expired NOP is therefore not required, but an aggrieved party may move under CPLR 6513 to remove it from record. A party may also oppose the filer’s motion to extend the NOP where the filer has not demon-strated good cause for the extension, such as where the filer failed to dili-gently prosecute its claims or otherwise caused the delay.14

CPLR 6516(c) prohibits a litigant from filing a subsequent NOP affecting the same property where the prior NOP “has been cancelled or vacated or had expired or become ineffective.” There are, however, limited exceptions. A lit-igant may file a successive NOP in a foreclosure action, or if it is supported by a new claim affecting the title to (or the possession, use, or enjoyment of) the property that did not form the basis for the prior NOP.15 Unless an exception applies, a litigant that lost its prior NOP cannot simply re-file, or use a subsequently commenced action or an amended pleading seeking the same relief to justify the filing of a subse-quent NOP.16 A party aggrieved by an improperly filed subsequent NOP may therefore move under CPLR 6516(c) to remove it. Where a litigant fails to file a required successive NOP, an aggrieved

party may move to vacate the final judgment.17

In an action other than for foreclo-sure, partition, or dower, a party may move under CPLR 6515 to cancel a NOP, even if it was properly filed. The moving party must show that the filer would be adequately secured by the moving party’s posting of an under-taking or that the filer failed to post a court-ordered undertaking intended to indemnify the moving party for the damages it may incur if the NOP is con-tinued. An aggrieved party seeking to vacate or cancel a NOP on other grounds may consider moving in the alternative under CPLR 6515.

A party with an interest in real prop-erty subject to a NOP may be able to demonstrate that its interest is not affected by the NOP. For example, if a NOP has been incorrectly indexed, it cannot provide constructive notice.18 If a NOP has expired (including where an appeal is pending or where a suc-cessive NOP was filed after the initial one expired), the interest of a bona fide encumbrancer or purchaser for value will not be affected, even if it had knowl-edge of the expired or cancelled NOP.19

Any non-party with an interest in property subject to a NOP that is consid-ering moving to intervene in the action, including for the purpose of challenging the NOP, should do so quickly after the NOP’s filing. Delay could preclude

Defending Against a Notice of Pendency

Amy Abbandondelo

See NOTICE OF PENDENCY, Page 20

Wednesday, October 4, 20175:30 - 6:30 p.m.

A community-based presentation that covers the general scope of suicide, the research on prevention and what people can do

to fight suicide.Attendees will learn the risk and warning signs of suicide and

how together we can help prevent it.Also discussed will be other programs that are available to take

to further develop these types of skills.

TALK SAVES LIVESAn Introduction to Suicide Prevention

To register for this event or for more information contact:Beth Eckhardt (516)747-4070 x218 or [email protected]

Sponsored by:American Foundation for Suicide Prevention Ÿ NCBA LAP


9


State law authorizes municipalities to enact zoning laws to protect and preserve public health, welfare, and safety.1 Not every parcel of property conforms in all respects to the zoning laws as enacted. Therefore, state law also authorizes zoning boards to grant variances from the application of zon-ing laws on a case by case basis. Courts long ago recognized that zoning boards are the “safety valve” of zoning code enforcement.2 Zoning variances are characterized as use or area variances. This article focuses on certain types of area variances.

Balancing Test for Area VariancesWhen deciding applications for area

variances, zoning boards are required by statute to apply a five-factor balanc-ing test that weighs the benefit to the applicant if the variance is granted, against the detriment to the health, safety and welfare of the communi-ty.3 This test applies uniformly to all area variances. The statutory test for area variances does not make any dis-tinctions between dimensional vari-ances, such as property line setback requirements, and bulk variances, such as gross floor area or lot coverage. Although the five-factor test remains constant regardless of the type of vari-ance sought, in practice, bulk variances often receive a heightened level scruti-ny from boards.

Zoning boards tend to give more scrutiny to bulk variances, like gross floor area, than other area variances. Knowing this will help practitioners appropriately prepare for bulk vari-ance cases.

Gross floor area is a measurement of the square footage of a dwelling, garage, shed, and any other structure or improvement included under a particu-lar section of a municipal code. Nearly every municipality on Long Island has adopted restrictions on the amount of gross floor area that an owner can build on a lot of a particular size. Often, GFA limitations are codified in the form of a floor-area-ratio restriction, or “FAR.” By way of example, given a 10,000 square foot parcel and a zoning code with a 30% FAR restriction, an owner is permitted to construct a dwelling containing 3,000 square feet of gross floor area as of right. What constitutes or is defined as “gross floor area” varies by municipality. Moreover, each municipality usually has several residential zoning districts, each with a different FAR.

McMansionsThe reason local zoning boards give

more scrutiny of GFA variances likely stems from the first prong of the five-fac-tor balancing test under N.Y. Town Law § 267-b(3)(b), “whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.”4 Zoning regulations exist to preserve and protect the integrity and character of neighbor-hoods. Zoning boards want to protect neighborhood character by denying vari-ances perceived as undermining that central goal. In practice, zoning boards are sensitive to GFA variances given the general perception that such variances

result in “McMansions.” “McMansion” has become a pejorative term that refers to large, over-built residences that often lack desirable architectural features and frequently replace the much more mod-est homes that preceded them.

The perceived proliferation of McMansions has prompted munici-palities to enact legislative changes designed to combat against a perceived threat to the open, suburban communi-ty character. FAR restrictions have a similar effect in curtailing McMansions by adjusting the gross floor area of a home in proportion to the size of a lot.

Some municipalities have taken further steps to address the rise of McMansions. Take, for example, the Town of Oyster Bay. In 2005, Oyster Bay adopted a six-month moratorium on issuing any variances for new resi-dences within the Oyster Bay Hamlet Moratorium Study Area.5 Oyster Bay was concerned with the “potential impact of new development and/or redevelopment of residential proper-ties in the Oyster Bay Hamlet on the environment and on the character and intensity of new development in exist-ing residential neighborhoods.”6 Like other towns and villages, Oyster Bay was concerned with teardowns and the construction of McMansions in their place. After a lengthy study period, the Town enacted the “Oyster Bay Hamlet Residence Design District Overlay,” in 2007, which regulates GFA on a sliding scale based on lot size; the maximum permitted GFA incrementally increases as lot sizes increase.

Greater Scrutiny for GFA VariancesCourts have, in some respects,

acknowledged a zoning board’s right to apply greater scrutiny to GFA varianc-es.7 Preliminarily, courts have eluci-dated three rules a zoning board must abide by when handling GFA vari-ance applications: (1) a zoning board has broad discretion in considering an application for a GFA variance;8 (2) a zoning board cannot make an illegal, arbitrary or capricious decision;9 and (3) if the zoning board’s decision has a rational basis, then the court will affirm the board’s decision, even if a contrary determination is supported by the record.10

Applying these rules, the courts have held that if a zoning board had any objective, factual basis to believe that an “undesirable change” to the neigh-borhood would result from granting a GFA variance, then the zoning board had a rational basis in the record for denying it.11 In other words, when a zoning board rationally concludes that a GFA variance will disrupt the “har-

mony” or “status quo” of the neighbor-hood’s character, the courts will not overrule the zoning board’s decision.12 In this way, courts show deference to a board’s determination. The courts have justified taking this position by ruling that a “critical aspect” of the zoning board’s responsibility is to preserve the neighborhood and community when balancing the interests of the munici-pality and the property owner.13

With the above in mind, a zoning attorney needs to take special care in preparing a presentation for a GFA variance case. First, the zoning attor-ney should review the plans to be pre-sented to the zoning board and work with the client and the architect to try and reduce the GFA variance to the smallest amount of relief necessary to accomplish the client’s goal for the project. Boards will often look for appli-cants to make concessions on the size of their new home or extension and may even question the purpose or need for specific rooms or amenities in the design plans.

Second, the attorney should work with the architect to ensure that there are sufficient architectural design fea-tures included in the plans to soften the curb appearance of the proposed dwelling and provide a richer architec-tural façade.

Third, the attorney should review the building department’s records on other, similarly situated homes in the surrounding neighborhood. It is import-ant to know and show the board, on the record, whether other homes in the neighborhood have received a similar GFA variance, or, in the alternative, have applied for, and were denied a GFA variance. Overall, it is essential that your client’s plan comports with the prevailing character of the sur-rounding neighborhood and that your presentation to the board addresses community character (often through testimony of a land use planner).

Advice for PractitionersIt is clear that Long Island zoning

boards will continue to scrutinize GFA

variances. It therefore falls to zoning practitioners to understand the nuanc-es of how to approach obtaining a GFA variance for their clients. That being said, zoning boards usually have a deep understanding of their commu-nity. Supreme Court Justice William Douglas said it best when he remarked, “I’ve often thought that if our zoning boards could be put in charge of bota-nists, of zoologists and geologists, and people who know about the earth, we would have much more wisdom in such planning than we have when we leave it to the engineers.”14

Michael H. Sahn is the managing partner and Nicholas J. Cappadora is an associate at Sahn Ward Coschignano, PLLC. The authors acknowledge Joseph Brees, Legal Intern, for his research and contributions to this article.

1 Shepard v. Village of Skaneateles, 300 N.Y. 115, 118 (1949). 2 In re Cobb, 128 Misc. 67, 67 (Sup Ct. 1926); New York City Housing Authority v. Foley, 32 Misc. 2d 41, 47 (Sup. Ct. 1961).3 Town Law §267-b (3)(b).4 Id. Town Law §267-b (3)(b)(1).5 Fredrick P. Clark Associates, Inc., Oyster Bay Hamlet Moratorium Study, October 2006 at 1. The Oyster Bay Hamlet Moratorium Study Area was approximately 405 acres. Id. 6 Id. at 12.7 See Matter of Davydov v. Mammina, No. 010314/10, 2010 WL 4567831 (N.Y.Sup.), aff’d 97 A.D.3d 678 (2d Dep’t 2012); Chou v. Board of Zoning Appeals of the Town of North Hempstead, No. 16300/09, 2010 WL 620644 (N.Y.Sup.). 8 Zaniewski v. Zoning Board of Appeals of Town of Riverhead, 64 A.D.3d 720, 722 (2d Dep’t 2009). 9 Aliano v. Oliva, 72 A.D.3d 944, 947 (2d Dep’t 2010). 10 Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 196 (2002). 11 See Kaiser v. Town of Islip Zoning Board of Appeals, 74 A.D.3d 1203, 1204 (2d Dep’t 2010); Kessler v. Town of Shelter Island Planning Board, 40 A.D.2d 1005, 1005 (2d Dep’t 1972); Halperin v. City of New Rochelle, 24 A.D.3d 768, 772 (2d Dep’t 2005). 12 See, e.g., Matter of Davydov v. Mammina, No. 010314/10, 2010 WL 4567831 (N.Y.Sup.), aff’d 97 A.D.3d 678 (2d Dep’t 2012); Chou v. Board of Zoning Appeals of the Town of North Hempstead, No. 16300/09, 2010 WL 620644 (N.Y.Sup. Ct. ).13 See, e.g., Matter of Davydov v. Mammina, No. 010314/10, 2010 WL 4567831 (N.Y.Sup.), aff’d 97 A.D.3d 678 (2d Dep’t 2012); Chou v. Board of Zoning Appeals of the Town of North Hempstead, No. 16300/09, 2010 WL 620644 (N.Y.Sup.).14 Justice William Douglas, Remarks at a con-ference sponsored by the American Histadrut Cultural Exchange Institute, Harriman, NY, (Feb. 17 – 19, 1967).

Best Presentation Practices for Gross Floor Area Variances

Michael H. Sahn Nicholas J. Cappadora

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For some time, and continuing today, there has been much debate about the confidentiality of the executive ses-sion—its reaches, its limitations, and

the consequences that may result for a board mem-ber who breaches that sacred trust. Many a municipal lawyer believes that the executive session is purely another function of village govern-ment susceptible to the sunshine laws1 of transpar-ency, with specifi-cally enumerated

exceptions, but violation of that trust has no enforceable remedy on the indi-vidual who breaches that trust, i.e., the member of the board who talks or leaks what was discussed to a third party or member of the press. The thesis of this brief article propounds that an elected trustee to a village board who violates the special veil of confidentiality of the executive session may be removed or impeached2 from the board. The execu-tive session is an indispensable arm of village government; without it a village board would be at a legal disadvantage,

an employer/employee disadvantage, and could not efficiently function.

The Executive Session DefinedThe law provides for closed or “exec-

utive” session(s) under certain circum-stances, as enumerated in the Public Officers Law § 105(1). Most notably, issues of litigation or employee matters trigger an executive session. As the law states, “executive session is not recognized as separate from an open meeting, but rather is a portion of an open meeting during which the public may be excluded.”3

To enter an executive session, there are several steps that must be taken. First, a motion must be made during an open meeting to enter into execu-tive session; second, the motion must identify the general area or areas of the subject to be discussed; and the motion to enter into executive session “must be passed by a majority vote of a total membership of the board, not just a majority of those members present.”4 Once the motion is passed, the board may ask the public to leave or retire to an ante room. Once the executive session is concluded, the board must return to the public meet-ing room or allow the public back into the meeting hall, and make a motion

to come out of executive session and resume the public portion of the open meeting.

From first-hand knowledge, the top-ics discussed in executive session are often the most sensitive (and conse-quential) of personal or legal issues: decisions are made to terminate an individual’s employment, to investigate alleged unlawful conduct, or to settle a legal dispute. These issues necessarily cannot be discussed in public and cer-tainly cannot be discussed with unin-vited third parties. But what happens when a member of the village board, an elected trustee with fiduciary respon-sibilities and obligations to the village, breaches that confidence and speaks to the press or said third party? What are the consequences that should flow to that member? Is that breach grounds for removal from the board?

RemediesSections 96-a, 97, and 107 of the

Public Officers Law provide remedies, civil and otherwise, for an “aggrieved person … to enforce provisions of this article pursuant to article seventy-eight of the civil practice laws and rules”5 and an action for declaratory judgment. However, these remedies will generally provide for the government as a whole

to act, or not act, and do not provide adequate protection to the village board as a legislative and corporate unit when one member goes rogue. At most, the courts will declare an action taken by the government to be void.6

The only protection for the board against a rogue member is removal, which can only be accomplished after an administrative hearing, and a finding of “cause,” followed by a hearing before a judge of the Appellate Division.7 There may be some civil remedies a board may employ, such as seeking to hold a board member personally liable for the financial exposure a village may face for the intentional breach of the confidentiality veil of the executive ses-sion, but civil liability, while punitive, does not cure the more far reaching problem: a disloyal and adverse func-tioning board member. Extricating that disloyal member is the only real way to protect the integrity of the board. A board member who is disloyal once, will be disloyal a second and third time; be under no false illusions.

The only statutory method by which a public officer, elected or appointed, may be removed from office is set forth in Public Officers Law § 36, which mandates that a village officer may

Village Governments: The Inviolability of the Executive Session

Charles J. Casolaro

See VILLAGE GOVERNMENTS, Page 25

Upcoming CLE Seminars In The Spotlight

Exploring Recent Bankruptcy Cases & Their Implications

October 3


11


By Kevin Kearon

FactsAvvo, Inc. is a corporation that pro-

vides at least three types of services to lawyers, including what are widely known as Avvo ratings (1 to 10); tradi-tional advertising/marketing; and the service in question here, known as Avvo Legal Services.

Avvo ratings purport to be a bona fide professional rating service which rates attorneys based on what it claims are objective criteria regarding an attorney’s experience. Avvo’s advertis-ing services allow potential clients to search for attorneys by geographic area and type of legal matter. Attorneys’ Avvo ratings appear in the search results and attorneys can pay fees to Avvo to elevate their prominence in such search results. These two services are not at issue and have been widely determined not to violate the Rules of Professional Conduct.1

The controversial Avvo service is its Legal Services program, which is similar to Avvo’s advertising services in that it attempts to match potential clients with attorneys. It differs in that Avvo acts as a broker in facilitating the relationship and collecting a “mar-keting” fee from the attorney upon a

successful engagement. Avvo offers fixed/flat fee legal ser-

vices for a spectrum of legal issues and collects the advertised fee (set by Avvo) directly from the client. The system requires that the initial phone contact between the client and the attorney be through a telephone number main-tained by Avvo, so it can confirm the call and duration of the initial tele-phone contact.

If the client confirms a desire to engage a particular attorney, the client makes a credit card payment for the full amount to Avvo, which then credits the attorney’s Avvo account with the full amount of the fee received from the client. Avvo then debits the attorney’s account for a so-called “marketing fee;” the amount and percentage of the fee varies based on a number of factors.

Avvo gives a 100% satisfaction guar-antee and has established protocols to resolve complaints of dissatisfaction and requests for refunds or other complaints.

On August 8, 2017, the New York State Bar Association Committee on Professional Ethics issued NYSBA Opinion 1132 (“the Opinion”) address-ing the payment of fees by attorneys to Avvo for participation in the Avvo Legal Services program.

QuestionDo the NY Rules of Professional

Conduct permit the payment of Avvo’s “marketing fee” in exchange for an attorney’s participation in Avvo’s Legal Services Program?

Rules of Professional Conduct Implicated

Rules 1.0(a); 5.4(a); 7.1(a); 7.1(b) and 7.1(f).

DiscussionRule 1.0(a) defines attorney adver-

tising. Rule 5.4(a) prohibits the compro-mise of an attorney’s independent judg-

ment. Rule 7.1 itemizes a wide variety of permissible and impermissible forms of advertising. Rule 7.2 prohibits an attorney from paying a non-attorney for a referral or recommendation.

The Opinion concludes that even if Avvo’s rating system is a bona fide pro-fessional rating service, participating in Avvo Legal Services is a violation of Rule 7.2 as an impermissible payment to a non-lawyer for a referral or recom-mendation.

Among the reasons cited in the Opinion are: the fee paid by the attorney to Avvo for a successful engagement, which it had facilitated; the nature of Avvo’s marketing of its own services, including its “satisfaction guaranteed” promise; and Avvo’s statements that: only “highly qualified” attorneys are allowed to participate in the program; that attorneys of a sufficiently high rating were deemed to be “superb;” and that “we stand behind our services.”

The Opinion identified additional problems with the Legal Services pro-gram, including its dispute resolution protocols, which implicate confidenti-ality and independent judgment issues for attorneys.

Avvo disputes the Opinion.2 It alleges

ON ETHICS

The NCBA Ethics Committee welcomes ethics inquiries. It responds to the majority received informally. The Committee does not provide legal advice or answer questions of law or establish attorney-client relationships. The facts may have been modified to respect the sensitivity of inquiries. The Committee’s hotline number rotates and can be learned by calling (516) 747-4070. The Committee’s chair, Kevin Kearon, can be reached at [email protected] or at (516)745-1500.

Avvo’s Legal Marketing Fee: an Improper Payment for a Referral/Recommendation?

See ON ETHICS, Page 21

It is with great pleasure that Nassau Suffolk Law Services Volunteer Lawyers Project (VLP) and the Nassau County Bar Association (NCBA) honor Barton R. Resnicoff as our most recent Pro Bono Attorney of the Month. Mr. Resnicoff, a solo practi-tioner in Lake Success, NY, specializes predominant-ly in matrimonial and family law. We recognize him this month for his steadfast dedication to indigent Nassau County residents, whom he has provided with pro bono legal representation through the VLP for over 20 years. In fact, he has committed to assist-ing at least one needy client at all times throughout most of his career.

Most recently, Mr. Resnicoff completed a multifac-eted matter in which he provided over 138 hours of free legal representation to a matrimonial defendant with minor children. This client was extremely grate-ful for Mr. Resnicoff’s diligence and expertise, and was able to secure a satisfactory settlement, child support and custody arrangements. Due to his assis-tance, she now has access to sufficient resources to be able to move forward in her life, rebuild her career, and care for her children.

As a veteran VLP attorney, Mr. Resnicoff was also honored as the Pro Bono Attorney of the Month in 2008. He was awarded the Pro Bono Service Award in 2005 by the Queens Volunteer Lawyers Project, where he also donates his services. He is active in the American Bar Association Family Law Section, where he has served on several commit-

tees over the course of his career. Mr. Resnicoff is a frequent contributor to the New York State Bar Reporter, analyzing interesting cases he encounters over the course of his practice.

Mr. Resnicoff graduated from City College of New York in 1970, and St. John’s School of Law in 1974. He is admitted in New York, the Southern and Eastern Districts of the US Federal Court, the Second Circuit Court of Appeals, and the US Supreme Court.

Upon graduation, after law school, Mr. Resnicoff served in the Army Reserves before he took his first job at the New York City Housing Authority. This experience sensitized him to the plight of less fortunate individuals, and motivated him to strive for a “fair solution.” It was then that he realized an obligation to give back to his community. He entered private practice in 1979, and found himself well suit-ed to family law, enjoying cases involving interesting people and novel legal issues. While he honed his skills in the substantive practice of matrimonial law, he also learned the art of gauging and successfully dealing with both opponents and clients. He realized the importance of telling clients what they need to hear and focusing on realistic goals.

He started his solo practice in 1991, and has been assisting pro bono clients ever since. “My commit-ment to assisting at least one pro bono client at all times allows me to know that I am doing something to increase access to justice for our low income

Nassau County residents,” states Resnicoff. “If every attorney adopted this practice, we would be a lot closer to closing the justice gap.”

According to Susan Biller, Pro Bono Coordinator of the VLP, “Mr. Resnicoff is one of our most consis-tent and reliable volunteers who will assist expertly with any type of matrimonial matter, regardless of the issues involved. He believes strongly in empow-ering his clients, encouraging their feedback at every juncture.”

Mr. Resnicoff has long been an avid runner, and completed approximately 10 marathons between the years 1980 and 1996. He also enjoys paddleball, swimming, and spending quality time with his wife, three children, and five grandchildren.

For his continuous dedication to helping needy Long Island residents obtain access to legal services and for his outstanding professionalism we are proud to honor Barton R. Resnicoff as our latest Pro Bono Attorney of the Month.

The Volunteer Lawyers Project is a joint effort of Nassau Suffolk Law Services and the Nassau County Bar Association, who, for many years, have joined resources toward the goal of providing free legal assistance to Nassau County residents who are dealing with economic hardship. Nassau Suffolk Law Services is a non-profit civil legal ser-vices agency, receiving federal ,state and local funding to provide free legal assistance to Long Islanders, primarily in the areas of benefits advocacy, homelessness preven-tion (foreclosure and eviction defense), access to health care, and services to special populations such as domestic violence victims, the disabled, and adult in-home resident. The provision of free services is prioritized based on finan-cial need and funding is often inadequate in these areas. Furthermore, there is no funding for the general provision of matrimonial, guardianship or bankruptcy representation, therefore the demand for pro bono assistance is the great-est in these areas. If you would like to volunteer, please contact Susan Biller, Esq. 516-292-8100, ext. 3136, or [email protected].

Barton R. Resnicoff, Esq.BY SUSAN BILLER

Pro Bono Attorney of the Month


12

LIBN 13 3/4 x 10 1/4

13

LIBN—CLE centerfold September 2017 Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW Program Calendar SEPTEMBER 2017 September 13, 2017 The Business of Law Lecture Series Presents: Dean’s Hour: Key Performance Indicators – Measure, Adjust, Succeed This program is sponsored by Astoria Bank and NCBA Corporate Partner Champion Office Suites Networking 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Frederick J. Esposito, CLM, Executive Director, Rivkin Radler LLP, Uniondale; Thomas J. Foley, Esq., Nassau Academy of Law Dean, Foley Griffin LLP, Garden City **This program is also appropriate for non-legal administrative staff. Call 516.747.4464 for pricing and registration. **

September 18, 2017 Dean’s Hour: Ineffective Assistance of Counsel With the NCBA Ethics Committee Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in ethics Kevin T. Kearon, Esq., Chair, NCBA Ethics Committee, Barket, Marion, Epstein & Kearon, LLP, Garden City; Cory H. Morris, Esq., Dix Hills

September 19, 2017 The Phenomenon of False Confessions: Medical and Legal Analysis With the NCBA Criminal Court Law and Procedure Committee and the Assigned Counsel Defender Plan Inc. of Nassau County 6:00-8:00PM 2 credits in professional practice William B. Barr, Ph.D., ABPP Director of Neuropsychology Division, Associate Professor of Neurology and Psychiatry, New York University School of Medicine; Additional speakers TBA; Program coordinator: Daniel W. Russo, Esq., Associate Dean, Nassau Academy of Law; Foley Griffin LLP, Garden City September 28 2017 Dean’s Hour: Mediating E-Discovery Disputes With the NCBA Alternative Dispute Resolution Committee Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Hon. Timothy S. Driscoll, Justice, New York State Supreme Court, Nassau County, Commercial Division; Hon. Ira B. Warshawsky (Ret.); Meyer, Suozzi, English & Klein, P.C., Garden City; Ronald J. Hedges, Esq., Ronald J. Hedges LLC, Hackensack, NJ; Former U.S. Magistrate Judge for the U.S. District Court for the District of New Jersey; Moderator: Leslie A. Berkoff, Esq. Moritt Hock & Hamroff LLP, Garden City

Please join us at 12:30 for a networking opportunity preceding this program. Networking should be a fully integrated component in the life of every attorney, regardless of years of experience. It will lead to stronger contacts and friendships that can help in every aspect of your practice.

OCTOBER 2017 October 3, 2017 Dean’s Hour: Digital Forensics and Social Media Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Leeza Garber, Esq., Corporate Counsel & Director of Business Development, Capsicum Group, LLC, New York City October 3, 2017 Exploring Recent Bankruptcy Cases and Their Implications With the NCBA Bankruptcy Law Committee, the Suffolk Academy of Law, and the Federal Bar Association Light Supper sponsored by Marcum LLP 6:00-8:00PM 2 credits in professional practice Hon. Alan S. Trust, US Bankruptcy Judge for EDNY; Bill Rochelle, Editor-at-Large, ABI; Matthew V. Spero, Esq., Chair, NCBA Bankruptcy Law Committee, Rivkin Radler LLP, Uniondale; Adam P. Wofse, Esq., LaMonica, Herbst & Maniscalco LLP, Wantagh

PART 36 SPECIALIZED TRAINING ON CD/DVD

ARTICLE 81 GUARDIANSHIP

COURT EVALUATOR RECEIVER

GUARDIANS AD LITEM SUPPLEMENTAL NEEDS TRUSTEE

Included in the purchase are the written materials and all of the paperwork to be submitted to the court for proof of training. Attorneys receive CLE credit as well as Part 36 certification.

To purchase, please call the Academy at 516.747.4464

Prices: CD $114.06 DVD $130.35 Prices include NYS Sales Tax

An order form is available on our homepage

at www.nassaubar.org for ease of ordering

Missed the live program? Buy or rent it on CD or DVD Call 516.747.4464 for more information

Nassau Academy of Law ORDER FORM TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. •By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501 •By Credit Card: FAX completed form with credit card information to 516-747-4147 •Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations

Seminar Reservation Form

Date Seminar Name P E S

TOTAL Credits Member

Non- Member

Domus Scholar Circle 18B

Sept 13 DH: Key Performance Indicators 1.0 √ 1 $30 $40 $0 N/A Sept 18 DH: Ineffective Assistance of Counsel 1.0 1 $30 $40 $0 N/A Sept 19 Phenomenon of False Confessions 2.0 2 $80 $115 $0 FREE Sept 28 DH: Mediating E-Discovery Disputes 1.0 √ 1 $30 $40 $0 N/A Oct 3 DH: Digital Forensics and Social Media 1.0 √ 1 $30 $40 $0 N/A Oct 3 Exploring Recent Bankruptcy Cases 2.0 2 $80 $115 $0 N/A √ DENOTES SKILLS CREDIT AVAILABLE SEMINAR RESERVATION TOTAL:

CD and DVD Order Form Area of Law Seminar Name

P E TOTAL Credits

CD/DVD Member

CD/DVD Non-

Member Seminar Code Criminal Discovery and Pre-Trial Motions…Criminal 1.5 1.5 40/55 75/80 7BTG0305 Law Firm DH: Key Performance Indicators 1.0 1 40/55 75/80 DH091317 Animal Animal Law and Your Practice 3.0 3 115/130 150/175 7BITE0621 Ethics Everyone Knows Someone - Impairment 3.0 3 115/130 150/175 7LAP0517 Technology Technology for the Future of Your Firm 1.5 1.5 40/55 75/80 7TECH0607 P.I. Anatomy of a Car Accident Case 2.0 2 75/95 110/130 7CAR0315 Insurance/IP Don't Go It Alone: Insurance for IP Claims 1.0 1 40/55 75/80 DH071817

(FOR CD/DVD orders only) SALES TAX: 8.625% CD/DVD ORDER TOTAL:

Name: TOTAL ENCLOSED Address: Phone: City/State/Zip: Email: Credit Card Acct. #: Billing zip for credit card: Security Code: __________ Exp. Date:______________ Signature:

PLEASE ALLOW 3-4 WEEKS FOR ORDER PROCESSING


14

LIBN—CLE centerfold September 2017 Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW Program Calendar SEPTEMBER 2017 September 13, 2017 The Business of Law Lecture Series Presents: Dean’s Hour: Key Performance Indicators – Measure, Adjust, Succeed This program is sponsored by Astoria Bank and NCBA Corporate Partner Champion Office Suites Networking 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Frederick J. Esposito, CLM, Executive Director, Rivkin Radler LLP, Uniondale; Thomas J. Foley, Esq., Nassau Academy of Law Dean, Foley Griffin LLP, Garden City **This program is also appropriate for non-legal administrative staff. Call 516.747.4464 for pricing and registration. **

September 18, 2017 Dean’s Hour: Ineffective Assistance of Counsel With the NCBA Ethics Committee Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in ethics Kevin T. Kearon, Esq., Chair, NCBA Ethics Committee, Barket, Marion, Epstein & Kearon, LLP, Garden City; Cory H. Morris, Esq., Dix Hills

September 19, 2017 The Phenomenon of False Confessions: Medical and Legal Analysis With the NCBA Criminal Court Law and Procedure Committee and the Assigned Counsel Defender Plan Inc. of Nassau County 6:00-8:00PM 2 credits in professional practice William B. Barr, Ph.D., ABPP Director of Neuropsychology Division, Associate Professor of Neurology and Psychiatry, New York University School of Medicine; Additional speakers TBA; Program coordinator: Daniel W. Russo, Esq., Associate Dean, Nassau Academy of Law; Foley Griffin LLP, Garden City September 28 2017 Dean’s Hour: Mediating E-Discovery Disputes With the NCBA Alternative Dispute Resolution Committee Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Hon. Timothy S. Driscoll, Justice, New York State Supreme Court, Nassau County, Commercial Division; Hon. Ira B. Warshawsky (Ret.); Meyer, Suozzi, English & Klein, P.C., Garden City; Ronald J. Hedges, Esq., Ronald J. Hedges LLC, Hackensack, NJ; Former U.S. Magistrate Judge for the U.S. District Court for the District of New Jersey; Moderator: Leslie A. Berkoff, Esq. Moritt Hock & Hamroff LLP, Garden City

Please join us at 12:30 for a networking opportunity preceding this program. Networking should be a fully integrated component in the life of every attorney, regardless of years of experience. It will lead to stronger contacts and friendships that can help in every aspect of your practice.

OCTOBER 2017 October 3, 2017 Dean’s Hour: Digital Forensics and Social Media Sign-in 12:30PM; Discussion 1:00-2:00PM 1 credit in professional practice or skills Leeza Garber, Esq., Corporate Counsel & Director of Business Development, Capsicum Group, LLC, New York City October 3, 2017 Exploring Recent Bankruptcy Cases and Their Implications With the NCBA Bankruptcy Law Committee, the Suffolk Academy of Law, and the Federal Bar Association Light Supper sponsored by Marcum LLP 6:00-8:00PM 2 credits in professional practice Hon. Alan S. Trust, US Bankruptcy Judge for EDNY; Bill Rochelle, Editor-at-Large, ABI; Matthew V. Spero, Esq., Chair, NCBA Bankruptcy Law Committee, Rivkin Radler LLP, Uniondale; Adam P. Wofse, Esq., LaMonica, Herbst & Maniscalco LLP, Wantagh

PART 36 SPECIALIZED TRAINING ON CD/DVD

ARTICLE 81 GUARDIANSHIP

COURT EVALUATOR RECEIVER

GUARDIANS AD LITEM SUPPLEMENTAL NEEDS TRUSTEE

Included in the purchase are the written materials and all of the paperwork to be submitted to the court for proof of training. Attorneys receive CLE credit as well as Part 36 certification.

To purchase, please call the Academy at 516.747.4464

Prices: CD $114.06 DVD $130.35 Prices include NYS Sales Tax

An order form is available on our homepage

at www.nassaubar.org for ease of ordering

Missed the live program? Buy or rent it on CD or DVD Call 516.747.4464 for more information

Nassau Academy of Law ORDER FORM TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. •By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501 •By Credit Card: FAX completed form with credit card information to 516-747-4147 •Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations

Seminar Reservation Form

Date Seminar Name P E S

TOTAL Credits Member

Non- Member

Domus Scholar Circle 18B

Sept 13 DH: Key Performance Indicators 1.0 √ 1 $30 $40 $0 N/A Sept 18 DH: Ineffective Assistance of Counsel 1.0 1 $30 $40 $0 N/A Sept 19 Phenomenon of False Confessions 2.0 2 $80 $115 $0 FREE Sept 28 DH: Mediating E-Discovery Disputes 1.0 √ 1 $30 $40 $0 N/A Oct 3 DH: Digital Forensics and Social Media 1.0 √ 1 $30 $40 $0 N/A Oct 3 Exploring Recent Bankruptcy Cases 2.0 2 $80 $115 $0 N/A √ DENOTES SKILLS CREDIT AVAILABLE SEMINAR RESERVATION TOTAL:

CD and DVD Order Form Area of Law Seminar Name

P E TOTAL Credits

CD/DVD Member

CD/DVD Non-

Member Seminar Code Criminal Discovery and Pre-Trial Motions…Criminal 1.5 1.5 40/55 75/80 7BTG0305 Law Firm DH: Key Performance Indicators 1.0 1 40/55 75/80 DH091317 Animal Animal Law and Your Practice 3.0 3 115/130 150/175 7BITE0621 Ethics Everyone Knows Someone - Impairment 3.0 3 115/130 150/175 7LAP0517 Technology Technology for the Future of Your Firm 1.5 1.5 40/55 75/80 7TECH0607 P.I. Anatomy of a Car Accident Case 2.0 2 75/95 110/130 7CAR0315 Insurance/IP Don't Go It Alone: Insurance for IP Claims 1.0 1 40/55 75/80 DH071817

(FOR CD/DVD orders only) SALES TAX: 8.625% CD/DVD ORDER TOTAL:

Name: TOTAL ENCLOSED Address: Phone: City/State/Zip: Email: Credit Card Acct. #: Billing zip for credit card: Security Code: __________ Exp. Date:______________ Signature:

PLEASE ALLOW 3-4 WEEKS FOR ORDER PROCESSING


15

The Court of Appeals on Photos from the Web and Post Note of Issue

Discovery: When and WhyThis column has appeared in the

Nassau Lawyer for about 15 years, so I thought this may be a good time to slightly change my approach. In the future, in addition to alerting you of important evidence decisions that may impact your practice, I am going to be adding some trial practice commentary as well. It is my hope that this will give trial lawyers, both new and more seasoned, some context as to how new evidentiary decisions may affect exist-ing trial practice procedures.

While you all have been off enjoying your summers, our appellate courts have been busy publishing some important decisions that are the subject of this month’s column. The first is quite possibly the most comprehens ive decision the Court of Appeals has ever issued in the area of admissibil-ity of social media

evidence. It is a decision that every trial lawyer must be familiar with.

Social Media: Evidence? The case is People v. Chris Price,1

written by Judge Stein, with two con-curring opinions by Judge Garcia and Judge Rivera. This case should become a primer for anyone who has any ques-tions about dealing with social media and/or electronic evidence matters, especially those involving photographs.

The defendant in Price was con-victed after trial of robbery. A witness testified that he was making a milk delivery with the victim when he saw, while sitting in his truck, someone holding a gun a foot away from the vic-tim’s chest. The witness testified that he then saw the victim throw money on the street, where the defendant’s accomplice picked the money up and then fled the scene. The witness never saw the gunman’s face and could not identify the defendant at trial.

After that testimony, the People noticed the court that they intended to introduce a photograph that was “found on the internet” which would show the defendant holding a handgun. Per their offer of proof, the People stated that the victim would identify the gun in the photograph following which a detective would identify the defendant as the person in the photo holding the gun. Defendant objected to this proffer for insufficient foundation as to the photo’s authenticity.

Over objection, trial term allowed the photo and the victim testified accordingly. He identified the defen-dant as the gunman and described the gun as a 9mm automatic, with a silver rectangular feature on the top of the barrel. He stated that he had no experience with guns. When shown the photograph in question, he stated that the gun looked ‘similar’ to the one used to rob him, but could not state that it

was the same gun.

No FoundationA detective then testified that she

had found the photo in question on a website known as “BlackPlanet.com” while she was scrolling through inter-net profiles using the defendant’s name. She found a public profile that had several photos of the defendant, along with the user name “Price OneofKind.” No other name was seen. The detective testified that the individual holding the handgun in the photo “looked like” the defendant. She also stated that she did not know who took the photo, when it was taken, where it was taken or under what circumstances, and whether or not it had been altered. In opposition to the defendant’s objection, the People argued that this testimony of the detec-tive was sufficient to authenticate the photograph, as it provided indicia that the profile belonged to the defendant.

Following the summary of the testi-mony at trial, the Court provided the basics for authenticating evidence: “…proof that the offered evidence is gen-uine and that there has been no tam-pering with it.”2 While, of course, the requirement will differ with regards to what type of evidence is involved, whether it be a unique item, a photo, audio recordings, etc., authenticity is an absolute. Specifically, with regard to photographs, the requirement is that the photo must “accurately represent the subject matter depicted.”3 Here, the Court pointed out, the People did not have a witness who could provide the requisite foundation.

The People additionally argued that when a photograph is taken off of the internet, such foundational require-ments are different. Where the photo is taken from the defendant’s webpage, as it is he who controls the website and its content, and therefore, the foundation-al test is met by the webpage’s “owner” in and of itself. They rely on other jurisdictions who have held that for this type of evidence, there is really a two-prong analysis: one, that the print out is accurate; and two, that the person involved controls the webpage. Clearly, in these cases, circumstantial evidence may provide the sufficient foundation. Judge Stein wrote that even if such a two-prong test was accurate, the People failed to provide sufficient proof particularly on the issue of “control”. This was not a Facebook account, or an email account. This was a website and the People’s proof was lacking, if not non-existent.

Judge Rivera’s concurrence is inter-esting, considering that he clearly indi-cated his preference would have been to use this case to “adopt a test” to determine the requisite foundational proof. In light of the fact that they chose not to, he expounds upon his own reasoning as to why the People’s proffer fell short of admissibility. I also recommend that you pay special attention to footnote 3 of the majority, which addresses Rivera’s opinion. Here is Stein’s terrific language (whether you agree with it or not): “In our view,

it is more prudent to proceed with cau-tion in a new and unsettled area of law such as this. We prefer to allow the law to develop with input from the courts below and with a better understanding of the numerous factual variations that will undoubtedly be presented to trial courts.”4 Great stuff!!!

Unusual and Unanticipated Circumstances?

Now, I turn your attention to some-thing completely different. As all you trial lawyers know (wink), 22 NYCRR §202.21(d) controls the circumstances under which post-note of issue discov-ery may occur. To save you the time of looking it up, the relevant language is that the movant must show “unusual and unanticipated circumstances.” I will tell you that trial judges are not happy when a trial shows up from the Calendar Control Part, jury in tow, and one side informs us that the case is not ready for trial because further discovery is needed. Agreed, that’s an extreme example; but how about a sit-uation in which the note of issue has been filed, you are on the trial calendar, and a party announces for the first time that “no judge, actually discovery is not complete.” Well, up to now, at least in the First Department, 22 NYCRR §202.21 is strictly enforced. The test has not been a showing of a lack of prej-udice or of “good cause shown;” rather, the test is “unusual and unanticipated circumstances.” A party’s failure to fol-low up on a new nonparty witness after depositions does not meet the test.

Until now, maybe.5 I give you two cases from the First Department to mull over. Both are maddeningly short on facts, but nevertheless are worth noting. In the case of Jones v. Seta,6 the defen-dants moved to vacate the note of issue and to compel the plaintiff to appear for a supplemental IME and supplemental deposition. Trial term denied the appli-cation. The Appellate Division, First Department, held that the defendant’s discovery, after the filing of the note of issue, seeking information from plain-tiff about prior accidents involving the same body parts alleged to have been injured in the subject accident, consti-

tuted “unusual or unanticipated cir-cumstances,” which allowed the further deposition, but not the additional IME. Based upon my experience, I assume that the only explanation for this is, for example, that at the deposition, the plaintiff was not asked about prior accidents, prior injuries, or pre-existing conditions. But, what is the “unusual or unanticipated circumstance?” The deci-sion does not say.

The case of Massa v. Lower Manhattan Development Corp.7 involved the taking of a non-par-ty witness deposition post-note. The trial court granted defendant’s motion to quash the subpoena, hold-ing that because the deposition date had passed, the issue was moot. The Appellate Division reversed, stating that “counsel’s statement that he only realized the importance of the non-party witness’s testimony after the filing the note of issue is sufficient to establish ‘unusual or unanticipated circumstances.’” For me, this begs the question of when is the pivotal moment here? When counsel realized he want-ed the deposition or when he realized it was important?

These two cases have been followed last month by two others in the First Department, in Cuprill v. Citywide Towing & Auto Repair Services8 and Cabrera v. Abaev.9 In both of these cases, the Appellate Division stated the trial court, as a matter of discretion, may permit postnote of issue discovery without vacating the note of issue, so long as neither party is prejudiced. And as you now know, that language does not appear anywhere in the rule.

See you next column.

Hon. Arthur M. Diamond is a Supreme Court Justice in Mineola. He welcomes evidence questions & comments and can be reached at [email protected].

1 2017 N.Y. Slip Op. (2017).2 People v. McGee, 49 N.Y.2d 48 (1979).3 People v. Byrnes, 33 N.Y.2d 343 (1974).4 Price, 2017 N.Y. Slip Op. at 5 n. 3.5 Simone, Christopher and Sofya Uvaydov, Loosening the Reins of Post-Note of Issue Discovery, New York Law Journal, June 22, 2017.6 143 A.D.3d 482 (Mem) (1st Dept. 2016).7 142 A.D.3d 927 (Mem) (1st Dept. 2016).8 149 A.D.3d 442 (Mem) (1st Dept. 2017).9 150 A.D.3d 558 (1st Dept. 2017).

VIEW FROM THE BENCH

Hon. Arthur M. Diamond

DepositPhotos


16

DONOR IN HONOR OFHon. Leonard B. & Deborah Austin Hon. Ruth C. Balkin, Stephen Gassman Award RecipientHon. Leonard B. & Deborah Austin Steven Cohn, We Care Golf & Tennis Classic HonoreeHon. Leonard B. & Deborah Austin Hon. Carmen St. George, Appoint to the NYS Court of ClaimsEllen Birch Hon. Ruth C. Balkin, Stephen Gassman Award RecipientEllen Birch Steven Cohn, We Care Golf & Tennis Classic HonoreeEllen Birch Elena Karabatos, on becoming President-Elect of the Nassau County Bar AssociationEllen Birch Stephen W. Schlissel, Happy BirthdayHon. & Mrs. Anthony J. Falanga Elena Karabatos, on becoming President-Elect of the Nassau County Bar AssociationHon. & Mrs. Anthony J. Falanga Daniel W. Russo, named partner Foley Griffin LLPHon. Steven & Peggy Jaeger Harry Kutner, Jr., Happy 70th BirthdayCarol Kantor Stephen W. Schlissel, Happy BirthdayHon. Susan T. Kluewer The Honorees of the We Care Golf & Tennis ClassicThe Law Department Thomas A. Bucaria, Happy Birthdayof Nassau District CourtKenneth L. Marten The birth of his grand twins, Olivia & Mason TrazoffCandice & Michael Ratner Maurizio Anthony Savoiardo, son of Mili Makhijani & Maurizio Savoiardo

DONOR IN MEMORY OFHon. Ruth C. Balkin Hon. Milton Mollen, former Presiding Justice of the Appellate Division, 2nd Judicial Dept.Ellen Birch Suzanne Wittreich, mother of Senior Court Reporter, Janine ColasantiMatthew Didora Mary Cahalan, mother of John CahalanStephen Gassman Hon. Milton Mollen, former Presiding Justice of the Appellate Division, 2nd Judicial Dept.Hon. Susan T. & Jeffery D. Kluewer Jerome & Marilyn Greenberg, parents of Elena L. GreenbergLeonard Kreinces H. William Hodges, IIILeonard Kreinces Hon. Jerome MedowarThe Marten Family Ruth ZuckerKenneth L. Marten Dick BarbutoGrace D. Moran Robert W. CorcoranPeter Panaro Dick BarbutoHon. Andrea Phoenix John Raia, father-in-law of Hon. William O’BrienHon. Denise Sher Suzanne Wittreich, mother of Senior Court Reporter, Janine ColasantiHon. Denise Sher Matthew G. Nizza, Step-Father of Hon. Ignatius L. MuscarellaHon. Denise Sher John Raia, father-in-law of Hon. William O’BrienHon. Peter B. Skelos Hon. David S. Ritter (Ret.) Acting Presiding Justice Appellate Division 2nd Dept.Joy M. Watson Barry M. Dennis

IN HONOR OF STEVEN M. JAEGER, APPOINTMENT TO NYS COURT OF CLAIMSHon. Leonard B. & Deborah Austin

Hon. & Mrs. Anthony J. FalangaPeter Panaro

IN HONOR OF KENNETH L. MARTEN, ON THE BIRTH OF HIS GRAND TWINS, OLIVIA & MASON TRAZOFF

Dana J. FinkelsteinSandra StinesDede Unger

IN HONOR OF HON. ANDREA PHOENIX, STEPHEN GASSMAN AWARD RECIPIENTHon. Leonard B. & Deborah Austin

Hon. Ruth C. BalkinEllen Birch

IN HONOR OF HON. PETER B. SKELOS, RECOGNITION AS ALTERNATIVE DISPUTE RESOLUTION CHAMPION

Ellen BirchJoanne & Frank Gulotta, Jr.

Hon. Denise Sher

IN MEMORY OF HON. PAULINE C. BALKIN, MOTHER OF HON. RUTH C. BALKIN

Hon. Kenneth S. DiamondHon. Dorothy Eisenberg

Hon. & Mrs. Anthony J. FalangaStanley Hirsch

Hon. John G. MarksGrace D. Moran

Hon. Arthur D. SpattJill C. Stone

IN MEMORY OF ELAINE BRODER, MOTHER OF GAIL BRODER KATZMary Ann Aiello

Ellen BirchJohn P. DiMascio, Sr.John P. DiMascio, Jr.

Franchina & Giordano, PCPatricia M. Latzman

Hon. Andrea Phoenix

Susan Katz RichmanKieth I. Rieger

Jennifer RosenkrantzHon. Denise Sher

Hon. Peter B. SkelosSandra StinesJill C. Stone

We Acknowledge, with Thanks, Contributions to the WE CARE Fund

IN MEMORY OF HON. ALAN L. HONOROFHon. Leonard B. & Deborah Austin

Hon. Angelo A. DelligattiFranchina & Giordano, PC

Richard G. FromewickStephen Gassman

Joanne & Frank Gulotta, Jr.Michael G. Lo RussoKenneth L. Marten

Peter PanaroHon. Denise Sher

IN MEMORY OF MARTIN UNGER, FATHER-IN-LAW OF DEDE UNGEREllen Birch

Hon. Andrea PhoenixHon. Denise Sher

IN MEMORY OF ARNOLD SCHWARTZ, FATHER OF SCOTT SCHWARTZKaren L. Bodner

John P. DiMascio, Sr.John P. DiMascio, Jr.

Florence FassSamuel J. FerraraElena Greenberg

Peter PanaroCandice & Michael Ratner

Kieth I. RiegerJennifer Rosenkrantz

Kieth I. RiegerJennifer Rosenkrantz

We Care

Checks made payable to Nassau Bar Foundation-WE CARE

Contributions may be made by mail: NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501

WE CARE 22nd Annual

Golf and Tennis ClassicTam O’Shanter Golf Club and The Mill River Club

July 31, 2017 Photos by Hector Herrera

Honorees Steven Cohn, Esq. and Joshua Setton (ctr) with WE CARE Classic Chairs Christopher McGrath (l),

Joseph Lo Piccolo and (r)

WE CARE Classic Honorary Chair and Classic founder Stephen W. Schlissel

Honoree Hon. Ruth C. Balkinpresented with the

Stephen J. Gassman Award from WE CARE Classic Honorary Chair and Classic

founder Stephen W. Schlissel

Honoree Hon. Andrea Phoenixpresented with the

Stephen J. Gassman Award from WE CARE Classic Honorary Chair and Classic

founder Stephen W. Schlissel


18

By Valerie Zurblis

We Care, part of the Nassau Bar Foundation, the charitable arm of the Nassau County Bar Association, net-ted $300,000 for charity at the 22nd Annual We Care Golf and Tennis Classic. This is the highest amount raised since the Classic was founded in 1996.

The Classic was held on July 31st at Tam O’Shanter Golf Club and The Mill River Club. This year’s outing was attended by more than 550 attor-neys, judges, business professionals and sponsors who played golf or ten-nis and attended the dinner. This year’s Classic Committee was chaired by Joseph A. Lo Piccolo, NCBA Past President Christopher T. McGrath and Honorary Chair Stephen W. Schlissel.

Honored this year, for their years

of support of We Care, were Steven Cohn, Esq. and Joshua Setton of Setton International Foods. The Gassman Award, named after We Care founder Stephen J. Gassman, which recognizes the continued sup-port and efforts toward furthering the We Care mission, was present-ed to Hon. Ruth Balkin, Appellate Division Second Judicial Department, New York State Supreme Court and Hon. Andrea Phoenix, Nassau County District Court.

Stephen Schlissel founded the Golf and Tennis Classic 22 years ago. Since then, the Classic has netted a total of $3.6 million. The Nassau County Bar Association provides all administra-tive assistance so that We Care is able to distribute 100% of all net proceeds to improve the quality of life for chil-dren, the elderly and others in need throughout Nassau County.

Photo by Hector HerreraOver two dozen deserving children from the Hempstead Police Athletic League were treated to the WE CARE METS GAME on August 17th. Standing are Hempstead Detective Darryl Aikens and WE CARE Past Chair Ken Marten.

Mets Game - Aug. 2017

SAVE THE DATE

Light the Night

Join TEAM WE CARE in Raising Funds to Cure Blood Cancer

Saturday, October 21, 2017 Ÿ 5:30 PMEisenhower Park in East Meadow

Questions Contact Dana Finkelstein @(516) 280-7105 or [email protected]

Record Year for Annual WE CARE

Golf & Tennis Classic Fundraiser

AN EVENING OF FABULOUS

LAS VEGASENTERTAINMENT

THE WE CARE FUND PROUDLY PRESENTS:

Featuring: Live Music, Comedy, Games and Vegas Style BuffetSaturday, October 14 from 7 pm to 11 pmNassau County Bar Association15th and West Street, Mineola, New York

TICKETS $100

For more information contact:Jody Ratner 516-747-4070 ext. 226; [email protected]

SPONSORSHIPS STILL AVAILABLE

Join NCBA/ WE CARE for the

TUNNEL TO TOWERS 5K Run & Walk

Sunday, September 24, 2017

Cost: $100 Adults & $50 under age 14Bus leaves from Chaminade High School

Check-in between 6:00-6:45 AM Ÿ Group photo at 6:45AMAll Buses leave at 7:00AM SHARP!

Questions? Contact Adrienne Flipse Hausch [email protected]

For details go to: bit.ly/TTT-Warriors2017

Checks made payable to: Warriors for a Cause

Send to: NCBA Tunnel to Towers15th & West StreetMineola, NY 11501Attn: Jody Ratner


19

NCBA Committee Meeting Calendar • September 14 - October 12, 2017We are pleased to announce the formation of the LGBTQ and Mental Health Committees of the

Nassau County Bar Association and invite you to participate. Please contact Stephanie Pagano at [email protected] if you would like to be a member of one of these committees in formation.

Questions? Contact Stephanie Pagano (516) 747-4070 [email protected] Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.

Check website for updated information: www.nassaubar.org

Commercial Litigation Thursday, September 14 12:30 p.m. John McEntee

Publications Thursday, September 14 12:45 p.m. Rhoda Andors/Anthony Fasano

Appellate Practice Friday, September 15 12:30 p.m. Donna Aldea

Surrogates Court Estates & Trusts Monday, September 18 5:30 p.m. Sally Donahue/Dennis Wiley

General, Solo and Small Law Practice Management Tuesday, September 19 12:30 p.m. Maxine Broderick

Defendant’s Personal Injury Tuesday, September 19 6:00 p.m. George DeHaven

Intellectual Property Wednesday, September 20 12:30 p.m. Ariel Ronneburger

Education Law Monday, September 25 12:30 p.m. John Sheahan

District Court Tuesday, September 26 12:30 p.m. Jaime Ezratty

Senior Attorney’s Tuesday, September 26 12:30 p.m. George Frooks/ Joan Lensky Robert

Elder Law, Social Services & Health Advocacy Tuesday, September 26 5:30 p.m. Kathleen Wright/Danielle Visvader

Animal Law Tuesday, September 26 6:00 p.m. Marilyn Genoa/Matthew Miller

Tax Law Wednesday, September 27 12:30 p.m. Brad Polizzano/Michelle Espey

Women In The Law Wednesday, September 27 12:30 p.m. Christie Jacobson

Civil Rights Thursday, September 28 12:30 p.m. Kristina Heuser

Alternative Dispute Resolution Thursday, September 28 12:30 p.m. Donna-Marie Korth/ William Sparks

Ethics Monday, October 2 5:30 p.m. Kevin Kearon

Adoption Law Tuesday, October 3 12:30 p.m. Martha Krisel

Community Relations & Public Education Wednesday, October 4 12:45 p.m. Moriah Adamo

Hospital & Health Law Thursday, October 5 8:30 a.m Douglas Nadjari

Plaintiff’s Personal Injury Tuesday, October 10 12:30 p.m. John Coco

Labor and Employment Tuesday, October 10 12:30 p.m. Christopher Marlborough

Real Property Law Wednesday, October 11 12:30 p.m. Patrick Yu/Rebecca Langweber

Association Membership Wednesday, October 11 12:45 p.m. Adam D’Antonio

Matrimonial Law Wednesday, October 11 5:30 p.m. Jennifer Rosenkrantz

Federal Courts Thursday, October 12 12:30 p.m. Michael Cardello, III

Publications Thursday, October 12 12:45 p.m. Rhoda Andors/Anthony Fasano

Surrogates Court Estates & Trusts Thursday, October 12 5:30 p.m. Sally Donahue/Dennis Wiley

intervention.20 Judgment creditors and their assignees and any other party having a lien or other interest in real property should check for NOPs upon acquiring their interest and continue to do so regularly thereafter to preserve their right to intervene.

Due to the significant negative impact that a NOP can have upon a property owner or encumbrancer, taking aggres-sive action to cancel it may help to level the playing field and improve the out-come of the real property litigation for

the party aggrieved by the NOP.

Amy E. Abbandondelo is associated with Thomas G. Sherwood, LLC, with an office in Garden City, New York, and she focuses her practice on real estate litigation.

1 In re Sakow, 97 N.Y.2d 436, 440 (2002).2 CPLR 6001; CPLR 6501; In re Sakow, 97 N.Y.2d at 440-41; 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 319-20 (1984); Stout St. Fund I, L.P. v. Halifax Group, LLC, 148 A.D.3d 749, 750 (2d Dept. 2017); Old World Custom Homes, Inc. v. Crane, 33 A.D.3d 600, 600 (2d Dept. 2006).3 CPLR 6501; Real Prop. Acts. § 241; Stout St. Fund I, L.P., 148 A.D.3d at 751.4 In re Sakow, 97 N.Y.2d at 4401-41; 5303 Realty Corp., 64 N.Y.2d at 319-20.5 Farbro Corp. v. A.F.A. Realty Corp., 261 N.Y. 24, 28 (1933), amending remittitur, 261 N.Y.

621 (1933); L & L Painting Co., Inc. v. Columbia Sussex Corp., 225 A.D.2d 670, 670 (2d Dept. 1996).6 CPLR 6501; Delidimitropoulos v. Karantinides, 142 A.D.3d 1038, 1039 (2d Dept. 2016); Piccirillo v. Ravenal, 161 A.D.2d 253, 254 (1st Dept. 1990).7 Old World Custom Homes, Inc., 33 A.D.3d at 600.8 Id.; Delidimitropoulos v. Karantinides, 142 A.D. 3d at 1039.9 Delidimitropoulos, 142 A.D. 3d at 1039-40.10 Sansol Indus., Inc. v. 345 E. 56th St. Owners, Inc., 159 Misc. 2d 822 (Sup. Ct. N.Y. Co. 1993).11 Indymac Bank, FSB v. MacPherson, 303 A.D.2d 558, 559 (2d Dept. 2003).12 Reingold v. Bowins, 34 A.D.3d 667, 668 (2d Dept. 2006); 551 W. Chelsea Partners LLC v. 556 Holdings LLC, 40 A.D.3d 546, 548 (1st Dept. 2007).13 CPLR 6516(c); In re Sakow, 97 N.Y.2d at 441-41; Sudit v. Labin, 148 A.D.3d 1077, 1077 (2d Dept. 2017).14 Petervary v. Bubnis, 30 A.D.3d 498, 499 (2d

Dept. 2006); Hall v. Piazza, 260 A.D.2d 350, 350 (2d Dept. 1999).15 CPLR 6516(a); Deutsch v. Grunwald, 63 A.D.3d 872, 873 (2d Dept. 2009); Bonded Concrete Inc. v. Johnson, 280 A.D.2d 758, 760 (3d Dept. 2001); Oster v. Bishop, 20 Misc. 2d 446, 447-48 (Sup Ct. Westchester Co. 1959).16 CPLR 6516(c); Weiner v. MKVII-Westchester, LLC, 292 A.D.2d 597, 599 (2d Dept. 2002).17 NYCTL 1999-1 Trust v. Chalom, 47 A.D.3d 779, 780 (2d Dept. 2008), leave to appeal denied, 11 N.Y.3d 709 (2008).18 Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1272, 1273 (2d Dept. 2012).19 Polish Nat’l Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 98 A.D.2d 400, 405 (2d Dept. 1983); Nowitz v. Fagan, 55 Misc. 3d 1218(A) (Sup. Ct. Queens Co. 2017).20 Citimortgage, Inc. v. Dulgeroff, 138 A.D.3d 419, 419 (1st Dept. 2016), leave to appeal dismissed, 28 N.Y.3d 1081 (2016).

Notice of Pendency

Continued From Page 9


20

Partners Richard J. Guercio and Gary L. Steffanetta of the law firm of Guercio & Guercio, LLP, have been named Fellows of The New York State Bar Foundation in recogni-tion for their distinguished achievements, dedication to the legal profession, and commitment to the orga-nized bar and service to the public.

Ronald Fatoullah of Ronald Fatoullah & Associates spoke at the New York State Bar Association Elder Law and Special Needs Section’s Annual Summer Meeting about the new Department of Labor rule with regard to pre-tax retirement accounts Elizabeth Forspan recently presented on the topic of Tax Aspects of Medicaid Planning for the National Business Institute.

Farrell Fritz congratulates ten attor-neys on being selected by their peers for inclusion in The Best Lawyers in America© 2018. The attorneys and the fields in which they are being recognized are: Charles M. Strain (Health Care Law); Domenique Camacho Moran (Employment Law – Management); John R. Morken and Eric W. Penzer (Litigation – Trusts & Estates); Jason S. Samuels (Litigation – Construction); John “Jack” Barnosky and Ilene Sherwyn Cooper (Litigation – Trusts & Estates and Trusts & Estates); Robert E. Sandler (Real Estate Law); Martin “Marty” G. Bunin (Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law and Litigation – Bankruptcy); and Hon. George C. Pratt (Arbitration). Special recognition is given to Jack Barnosky and Eric Penzer, both of whom received the “Lawyer of the Year” award for Long Island in recog-nition of their standing as the individ-ual attorneys with the highest overall peer-feedback for a specific practice area and geographic location. The Firm is also pleased to welcome Edward (Ed) D. Baker as an associate in the firm’s estate litigation practice area.

Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP is pleased to announce that Allison Rosenzweig was noted in Newsday’s Winners section for her L.I. Center for Business and Professional Women (L.I.C.B.P.W.) recognition. Gerard Luckman and Raymond Castronovo were interviewed for the New York Real Estate Journal Professional Profile section.

Lew Meltzer of Meltzer, Lippe, Goldstein & Breitstone has announced the formation of Meltzer Lippe Strategies, a group designed to help clients navigate all levels of govern-ment and bring a sophisticated strate-gic planning element to the government relations process that will benefit the firm’s clients.

Saltzman Chetkof & Rosenberg LLP in Garden City is proud to announce that Best Lawyers in America has selected Michael Chetkof and Lee Rosenberg for inclusion in its 2018 edi-tion and that Allyson D. Burger has been appointed as Chair of the ABA Young Lawyers Division after having completed her tenure as Chair of the YLD Family Law Committee.

Karen Tenenbaum, of Tenenbaum Law, P.C. in Melville, was featured in Long Island Business News and recognized for her participation in the Goldman Sachs 10,000 Small Businesses Program. Her article, “Don’t Lose Your Restaurant Because of Unpaid Taxes,” was published by the NYS Restaurant Association. Ms. Tenenbaum, together with Jennifer Anne Wynne and Hana Boruchov presented a Lunch and Learn at a local accounting firm on IRS and NYS tax collection issues.

Bruce J. Bergman, a member of Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., head of its commercial mortgage foreclosure department and a past-director of NCBA has been recog-nized among the first recipients of the 2017 Albert Nelson Marquis Lifetime Achievement Award for which less than five percent of Marquis Who’s Who list-ees qualify.

Bond, Schoeneck & King PLLC is pleased to announce Terry O’Neil has been named the Best Lawyers’ 2018 Long Island Labor Law – Management “Lawyer of the Year.” Three attorneys from the Firm’s Garden City office were included in The Best Lawyers in America® 2018: Howard M. Miller, Terry O’Neil and Mark N. Reinharz.

Jacquelyn M. Moran, an associate practicing commercial litigation at the Garden City law firm of Moritt Hock & Hamroff LLP, was recently appoint-ed by the Federal Bar Association to serve as Chair of its Younger Lawyers Division (YLD)-Eastern District of New York Chapter, effective October 1, 2017.

Erica B. Garay announces the opening of her new office, Garay ADR Services, through which she serves as an arbitrator and mediator, han-dling a variety of cases as a neutral, including commercial and employment claims. She served as co-chair of the Bar’s Alternative Dispute Resolution Committee, and has now been elected to its Nominating Committee. Erica serves on the roster of the American Arbitration Association, the Nassau Bar panel, and federal and state court rosters in the New York metropolitan area.

Alan J. Schwartz, the Principal of the Law Offices of Alan J. Schwartz, PC in Garden City, has been appointed to the Melville Chamber of Commerce board of directors.

Mirman Markovits & Landau PC has

announced that Edward K. Blodnick and Thomas Fazio have been named as Of Counsel to the firm. In addition, they will continue to maintain their practice, Blodnick Fazio & Associates PC, in Garden City, New York.

Meyer Suozzi is pleased to announce that Patricia Galteri has been elected as the firm’s next President and Managing Attorney. Effective September 1, 2017, Ms. Galteri will assume the role currently held by Lois Carter Schlissel, who has led the firm and managed its four offices in Garden City, New York City, Albany and Washington D.C., since 2002.

Financial attorney Leslie H. Tayne of Tayne Law Group, P.C. was recent-ly elected as a new board member to the Boards of Directors of Guide Dog Foundation and America’s VetDogs where she will serve a three-year term on each board and will play an integral role in reviewing key issues relating to both organizations while making important recommendations and decisions.

Yvonne R. Cort recently spoke at the annual NYU Tax Controversy Forum on the topic of “Losing Your Driver’s License, Passport, or Worse: Collateral Sanctions for Tax Non-Compliance”. Ms. Cort is a partner with Capell Barnett Matalon & Schoenfeld LLP in their Jericho office, where she focuses her practice on IRS and NYS tax controversies.

Adam Silvers, Managing Partner at Ruskin Moscou Faltischek P.C., announced a major expansion of its Cybersecurity and Data Privacy Practice Group with the appointment of co-chairs Steven J. Kuperschmid, Partner, and Richard M. Frankel, Of-Counsel. Mr. Kuperschmid has vast experience representing start-ups, entrepreneurs, family businesses, pub-lic and privately owned institutional companies and private equity funds in mergers, acquisitions and capital raising transactions, and counsels on board advisory and corporate gover-nance matters. Mr. Frankel recent-ly joined the firm after a long and distinguished career with the Federal Bureau of Investigation (FBI) and is a recognized authority on cyber threats and complex coordinated cyber attacks.

The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, events and recent accomplishments of its members. All submissions must be made as Word documents. Due to space limitations, submissions may be edited for length and content.PLEASE E-MAIL YOUR SUBMISSIONS TO: [email protected] with subject line: IN BRIEFThe In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to rep-resenting attorneys for nearly 35 years, Ms. Rice is a Past President of NCBA.

in Brief

Marian C. Rice

constraints on the First Amendment and on consumer interests. In addition, Avvo claims it is simply “facilitating

a marketplace.” Further, Avvo com-plains that the Opinion risks giving the false impression that all of its services, including its ratings and advertising services, are disallowed.

While NYSBA Ethics Opinions do not have the force of law, this Opinion is worth a look if an attorney is using

Avvo or a similar service or is con-sidering doing so. It is unclear how a disciplinary committee might regard a complaint based on participation in this Avvo arrangement, but attorneys should be aware of this New York State Bar’s Ethics Opinion and its reasoning and conclude for themselves

whether a rules violation occurs.

1 Email from Amy Albertson, Avvo Account Manager, to AVVO subscribers (August 15, 2017, 5:55 p.m. EST)(on file with author).2 Christine Simmons, AVVO Blasts New Ethics Opinion on Attorney Match Services, New York Law Journal, Aug. 9, 2017.

On Ethics


determining “best outcome” requires community and governmental inclu-sion as part and parcel of land bank success. One useful step being taken in the Nassau County Land Bank (NCLB) is encouraging the establishment of an advisory board to provide local input and awareness for NCLB programs.

With operations increasingly driven by local policy and community needs, public support and alignment with the property tax enforcement process, the

future of land banks may soon be a move to the forefront of community development goals.

David A. Ragonetti is the founding executive director of the Nassau County Land Bank, a 501(C)(3) organization dedicated to serving the residents of Nassau County.

1 Theodore Thayer, The Land-Bank System in the American Colonies, 13 J. of Econ. Hist., Spring 1953, at 145-159.2 A “foreclosing governmental unit” may establish a land bank in New York, subject to approval by the Empire State Development Corporation; Not-for-Profit Corp. Law § 1603(a)-(g).3 Not-for-Profit Corp. Law § 1616.4 Not-for-Profit Corp. Law § 1607(b).5 Pub. Auth. Law § 2(2)(e). As such, land banks

must adopt written policies and report annually to the New York Authorities Budget Office. See e.g. Pub. Auth. Law § 2824.6 Not-for-Profit Corp. Law §§ 1608(h), 1612(c).7 “A land bank shall hold a public hearing prior to financing or issuance of bonds.” Not-for-Profit Corp. Law § 1612. 8 2016 New York Land Banks Report by Center for Community Progress and New York Land Bank Association, available at www.nylandbanks.org.9 For example, pursuant to the Mun. Redevelopment Law, Gen. Mun. Law Art. 18-C, or state downtown redevelopment programs.10 Not-for-Profit Corp. Law §§1603(e), 1607(b),11 N.Y.S. Office of the Att’y Gen., Revitalizing New York State, Nov. 2016, available at http://ag.ny.gov/sites/default/files/oag_land_bank_report.pdf. 12 Id.13 “Brownfield” is an industry term for a property associated with potential, known or perceived environmental contamination due typically to

historic use.14 Not-for-Profit Corp. Law § 1607(a)(21).15 The Nassau County Land Bank created the Residential Revitalization Program to redevelop problem properties to provide affordable home buying opportunities to qualifying candidates among the low-to-middle income segment.16 Press Release, N.Y.S. Office of the Att’y Gen, A.G. Schneiderman Announces $20.9 Million In Grants To 19 Land Banks That Are Rebuilding Neighborhoods Across New York State (Mar. 24, 2017)(available at https://ag.ny.gov. 17 According to the 2016 New York Land Banks Report by Center for Community Progress and New York Land Bank Association, land banks have attracted over $77 million in private invest-ment, $28.4 million in assessed value returned to tax rolls and $9.4 million in sale proceeds plowed back into operations. Full report available at www.nylandbanks.org.

Land Bank 101



21

We welcome the following new members

NCBA New Members

AttorneysMichael L. Fishman

CompanyChristina A. Hall

CompanyMichael J. Palitz

Shavitz Law Group, P.A.A. Gail Prudenti

Hofstra University

Rob J. RodgersMiller & Caggiano, LLP

Daniele A. WilsonNassau/Suffolk Law Services

StudentsStephen M. Hernandez III

Domenick J. PesceDavid Jared Sack

For Information on

LAWYERS’ AA MEETINGCall the NCBA

Lawyer Assistance Program Director

516-512-2618

NCBA

Sustaining Members2017 - 2018

Martin P. AbruzzoMary Ann Aiello

Mark E. AlterLeon ApplewhaiteErnest T. Bartol

Jack A. BennardoAllan S. BotterHoward R. BrillNeil R. Cahn

Robert M. CalicaRalph A. Catalano

Alan W. ClarkHon. Leonard S. Clark

Richard D. CollinsJohn M. Daly

Frank G. D’Angelo Hon.Dorothy D. T. Eisenberg

Charo EzdrinBernard Feigen

Jordan S. Fensterman Samuel J. Ferrara

Lawrence R. GaissertDomingo R. Gallardo

Marc C. GannEugene S. Ginsberg

Frank Giorgio, Jr.John J. Giuffre

Douglas J. GoodRobert S. Greco

Hon. Frank A. Gulotta, Jr.

Alan B. HodishWarren S. HoffmanJames P. JosephElena KarabatosZachary E. Kitton

Hon. Susan T. KluewerMartha Krisel

Donald F. LeistmanGregory S. Lisi

Hon. Roy S. MahonShalom S. Maidenbaum

Peter J. MancusoMichael R. Martone

John P. McEnteeChristopher T. McGrath

Hon. Michael L. OrensteinGary PetropoulosMichael E. Ratner

Edward T. Robinson IIIHon. Marie G. Santagata

Stephen W. SchlisselHon. Denise L. SherHon. Peter B. Skelos

Ira S. SlavitHon. Arthur D. Spatt

Hon. Joseph J. SperberMichael F. Sperendi

Sanford StrengerThomas A. ToscanoHon. Joy M. Watson

Every year thousands of attorneys renew their membership in the Nassau County Bar Association. In addition to dues,

some members show their appreciation to the NCBA by making a special contribution and becoming a

Sustaining Member. The NCBA is grateful for these individuals who strongly

value the Nassau County Bar Association’s mission and its contributions for the betterment of the legal profession.

To become a Sustaining MemberPlease contact the

NCBA Membership Office (516)747-4070

NCBA is looking for MENTORS for Middle School students.

Oct. 2017 through May 20188 a.m. to 8:45 a.m. one day every other week

Students in the followingcommunities are awaiting mentors:

Hempstead • Uniondale • JerichoWestbury • East Meadow

Contact Demi Tsiopelas at the Nassau Bar(516)747-4070 x210

[email protected]

ATTORNEYS & JUDGES


22

from the losses of the Dodgers and Giants at the end of their respective 1957 seasons, New York City embarked upon a project to lure a new Major League baseball team to New York. To that end, in 1961 the New York State Legislature enacted the required leg-islation authorizing New York City to construct and finance a municipal base-ball stadium within the park. This facil-ity became known as Shea Stadium, and was the home for the New York Mets for nearly 50 years.

In 2008, Shea Stadium was demol-ished, and replaced with a new stadi-um, presently known as Citi Field. This demolition and construction was part of an overall plan to re-develop that particular property and other, blight-ed, property in the area of Queens known as Willets Point, for which the City had issued requests for propos-als for area re-development. Queens Development Group, LLC (QDG), a joint venture formed by entities con-trolled by Sterling Equities Associates (owners of the Mets) and The Related Companies, submitted a proposal for construction of retail space, a hotel, an outdoor space, a public school, and affordable housing in the Willets Point neighborhood, and a large-scale retail complex and movie theater on an area designated “Willets West,” on the Citi Field parking lot where Shea Stadium once stood.

Plaintiffs, including a State Senator, not for profit groups, businesses, tax-payers, and users of Flushing Meadow Park sued to enjoin the proposed devel-

opment on parkland. The case wound its way to the Court of Appeals, which invoked the Public Trust Doctrine to enjoin the proposed commercial uses of the parkland areas. However, in doing so, the Court was required to review the history of the Public Trust Doctrine, and the particular legislation which had initially authorized Shea Stadium and later authorized redevelopment, and its analysis serves as a teaching moment for municipal attorneys (and attorneys for developers and community groups) in re-emphasizing the rule that park property is held in public trust, invio-late to non-park uses, unless the State Legislature grants a clear authorization for the intrusion of other uses.

In Avella, the City and the developers argued that the 1961 legislation under which Shea Stadium had been con-structed in Flushing Meadows Park was broad enough to allow the construction of a shopping mall more than a half-cen-tury later. This required the Court of Appeals to review the specific (but not necessarily clear) language of the 1961 State legislation, in order to determine the scope of the granted authority.

The Court cited Van Cortland Park,10 holding that the approval of the Legislature must be “plainly conferred” through “direct and specific approv-al.” The specific State legislation in 1961, codified in Administrative Code of the City of New York section 18-118, granted the City authority to enter into agreements to use the grounds and buildings “to use, occupy, or carry on activities in, the whole or any apart of a stadium, with appurtenant grounds, parking areas, and other facilities.” After lengthy and detailed discussion and analysis, the Court concluded that

this language clearly did not extend to construction of a shopping mall or movie theater, as these were not “appurtenant” to the clearly authorized stadium and parking lot uses. Rather, these were commercial uses, not within the ambit of the permissible park uses, or the stadium and its related uses.

The Court noted that the redevelop-ment of Willets Point was a laudable goal, but that good intentions were not a sufficient basis upon which to per-mit parkland to be used for non-park purposes. Arguments as to the merit of the proposed uses, or lack thereof, would have to be addressed to the State Legislature, which has the final author-ity to determine the uses to which park-land may be put.

Chief Judge DiFiore filed a lengthy dissent, arguing that the Legislature previously had authorized the use of this land for non-park purposes, and that the majority had too strictly read the statutory language. In her view, the statute was broad enough to authorize uses which were for the benefit of the public, and were related to the per-mitted uses of Citi Field, such that the Public Trust Doctrine did not prevent the proposed uses.

EpilogueThe end of this saga is probably not

yet written. The most obvious path for the City and the developers is to seek a new legislative authorization for the Willets Point West project, since it is clearly within the province of the Legislature to grant that permission.

In this respect, however, it should be kept in mind that the State has long had a policy of requiring some mitigation

whenever it permits parkland to be put to some other use. Details of this policy, and how it is implemented, are found in the “Handbook on the Alienation and Conversion of Municipal Parkland in New York”11 published in 2012 by the New York State Office of Parks, Recreation & Historic Preservation. That policy generally requires the pro-vision of substitute parkland for the lands being alienated, although there have been some exceptions allowed by the State Legislature.

The moral of the story is that local governments can avoid inevitable lit-igation, and the likelihood of adverse outcomes, by taking care to permit only park and park-related uses on desig-nated parkland property. However, eco-nomic and political pressures frequent-ly motivate governments into pushing the envelope in this regard, so it is likely that we haven’t seen the end of Public Trust Doctrine litigation.

A. Thomas Levin is a Member of, and General Counsel to, Meyer, Suozzi, English & Klein P.C. in the Garden City office, where he is Chair of the Firm’s Local Government, Land Use and Environmental Compliance, and Professional Responsibility practice groups. Mr. Levin is a former President of the New York State Bar Association and the Nassau County Bar Association.

1 __ NY3d __ (2017) 2017 NY Slip Op 04383.2 95 N.Y.2d 623 (2001).3 229 N.Y. 248 (1936),4 15 N.Y.2d 221 (1965),5 30 N.Y.2d 48 (1972),6 22 N.Y.3d 648 (2014),7 Supra note 4. 8 23 N.Y.3d 631 (2014)9 Capruso v. Village of Kings Point, 102 A.D.3d 902 (2013)10 Supra note 2.11 https://parks.ny.gov/publications/documents/AlienationHandbook.pdf

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all enforcement related information. Such enforcement data may include inspection dates, status and court-re-lated information. Also, this database may prove immensely helpful to the Superintendent in ensuring enforce-ment and financial efficiency.

Walking the Municipal Liability and State Law Tightrope

Aside from preemption issues raised by Federal laws, court orders, investor and insurer guidelines, and abandoned property-associated bank agreements,21 it is impossible to ignore the issue that the Act may create between state and local law.

New York law grants broad powers to local governments to make their own laws “to the extent that they are not inconsistent with either the State Constitution or any general law.22 This includes a general police power to adopt local laws relating to “the govern-ment, protection, order, conduct, safety, health and well-being of person or prop-erty.”23 The New York Court of Appeals has held that a local law is preempted “where there is a direct conflict with a state statute (conflict preemption) or where the local law is inconsistent with state law because it prohibits what would be permissible under State law or imposes prerequisite additional restrictions on rights under state law, to inhibit the operation of the State’s general laws.”24

Despite preemption issues, which the act and DFS regulations seek to avoid,

an important fact remains. Unlike the state agency, a municipality faces a two-fold liability risk because of enforcing the state law. These risks stem from statutorily-granted municipal authority to enter upon property to repair emer-gent conditions that threaten the public health, safety and welfare.

The first liability risk concerns notice. The electronic registry doesn’t account for the emergent circumstances that prompt a municipality to respond to an abandoned property. These conditions may exist long before the property is reported to the registry as abandoned. Further, the municipality does not ben-efit from the elongated inspection rights that the servicer enjoys in determin-ing whether a property indeed carries an abandoned status, a finding that is meant to protect the rights of occupants to stay and enjoy privacy in their homes.

Second, a municipality’s inspection of a property to confirm the emergent condition, and subsequent action to cor-rect it or failure to do so, may also trigger tort liability issues. In William O’Connor et al. v. City of New York, a case involving a deadly and devastating gas explosion where a city inspector erroneously approved a gas hookup, con-tributing in large part to the tragedy, the court held that absent a special rela-tionship creating a municipal duty to exercise care for the benefit of a particu-lar class of individuals, no liability may be imposed upon a municipality for fail-ure to enforce a statute or regulation.25

While it is well established that the law provides extensive immunity to a municipality in the case of civil tort liability, it is noteworthy that the law is not clear-cut with respect to municipal liability in the case of inspections and

repairs of abandoned properties exhib-iting emergent conditions. The question of whether a “special relationship” is created between those living within proximity of such properties is a factual one, based at least in part on whether the statutes and ordinances involved create such a relationship.26 Certainly, municipalities will continue to put the health, safety and welfare of the com-munity at the forefront, while the law in this specific area develops over time.

Positive Signs on a Statutory Road Less Traveled

New York’s 2016 Zombie Property and Foreclosure Prevention Act brings with it very positive changes for the benefit of homeowners, servicers, munic-ipalities and New York State.

As with any new legislation, the law surrounding it will form over time, its application and court decisions slowly clarifying its true meaning. Clearly, the Act authorizes and impacts the munic-ipality in a unique way not true of any other entity; it is both an enforcer of the law and a remediator of its violations. Specifically, it jumps into the servicer capacity to remedy emergent conditions on abandoned properties, but also shares the DFS’ legal rights, subject to the restrictions discussed here, to collect civil penalties for violations. For the munici-pality, this is largely uncharted territory. However, the institution of joint access to the most complete enforcement informa-tion possible can ensure open communi-cation and success for everyone. Without question, as the Act takes more life over time, its ultimate purpose to keep people in their homes, in the safest and most aesthetically pleasing neighborhoods possible, will become a reality.

Nicole Lubell is the Settlement Conference Coordinator for the NCBA Pro Bono Mortgage Foreclosure Project, and a for-mer Assistant City Attorney for the cities of Miami and West Palm Beach, Florida.

1 Press Release, NYS Governor website, Governor Cuomo Signs Sweeping Legislation to Combat the Blight of Vacant and Abandoned Properties (June 23, 2016). https://www.governor.ny.gov.2 RPAPL § 1308.3 RPAPL § 1309.4 RPAPL § 1310.5 “Servicer” refers to any of the parties respon-sible for the mortgage and note, including the lender, assignee, mortgage loan servicer, plaintiff and agent.6 Within ninety days of a borrower’s delinquency, the servicer shall complete an exterior inspection of the subject property, and thereafter, every twenty-five to thirty-five days, at different times of the day. 7 RPAPL § 1308 (2). 8 §§ 302, 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16. 307.1, 308.1 and 310.9 RPAPL § 1308 (3) requires the notice be posted within seven business days of the vacant and abandoned determination, on an easily accessible part of the property where it is plainly visible.10 RPAPL § 1308 (4).11 RAPL § 1308(6).12 RPAPL § 1308 (8)(a).13 RPAPL § 1308 (8)(a).14 RPAPL § 1308(8)(d).15 DFS Adoption of Part 422 of the Superintendent’s Regulation, Summary of Public Comments.16 RPAPL § (8)(b).17 DFS supra note 20.18 RPAPL § 1308 (13).19 RPAPL § 1308 (13).20 The law requires the DFS to maintain the electronic registry. The servicer must submit information within 21 days of when it “learns, or should have learned, that such property is vacant and abandoned.”21 RPAPL § 1308 (11).22 New York Pet Welfare Association, Inc. v. City of New York, New York, 850 F.3d 79 (2017); 2017 U.S. App. LEXIS 3763, citing Eric M. Berman, P.C. v. City of New York, 25 NY3d 684 (2015).23 Id. citing N.Y. Const. at IX, § 2(c)(10). 24 Id. citing Berman, 25 N.Y.3d. at 690.25 William O’Connor et al v. City of New York, Consolidated Edison Co. et al, 460 NY2d 485 (1983).26 O’Connor at 487 citing Sanchez v. Village of Liberty, 42 NY2d 876, 878 (1977).

Zombie Properties


FRNS that included waivers and alter-native requirements issued responsively as the “wrinkles” of the law and the ear-liest FRNs started to appear.

For the CDBG-DR funding stream, the FRNs respected and reacted to the parameters of PL 113-2 and then addressed realistic obstacles through regulatory flexibility. Through the FRNs, crucial project deadlines were extended and additional initiatives were approved. For example, PL 113-2 required that funds must be expended by September 30, 2017; subsequently, extensions have been authorized via FRNs responsive to the realities of the complexity of the rebuild.10

While PL 113-2 provided broad strokes, the FRNs that followed inter-

preted, narrowed, expanded and imple-mented the law to reflect a realistic timetable in light of the complexity of the infrastructure projects in particular. Rarely does an FRN revoke an earli-er FRN; rather, the earlier FRNs are considered “Prior Notices” and remain available and in play.11

Eligible grantees can apply for waiv-ers that are approved via FRN. For example, the earliest PL 113-2 FRNs prohibited funding to private utilities. New Jersey, however, applied for and received a “waiver of the prohibition on assistance to businesses that do not meet the SBA definition of a small business and the prohibition on assis-tance to privately owned utilities for its planned $200 million CDBG–DR investment in the New Jersey Energy Resilience Bank (ERB).”12

CDBG-DR funding is “last resort” funding, which means that other rev-enue sources must be utilized first.

With infrastructure, for example, Federal Emergency Management Agency (FEMA) and Army Corp of Engineering (USACE) funds had to be expended first; duplication of benefits is strictly prohibited.13 Although the duplication of benefits FRN issued in 2011, it continues to govern CDBG-DR because of the following language, “This Notice clarifies the duplication of benefits requirements under the Stafford Act for all active Community Development Block Grant (CDBG) disaster recovery grants, and all future CDBG disaster recovery grants.”14

Martha Krisel is the Immediate Past President of the NCBA and a Deputy County Attorney at the Office of the Nassau County Attorney. She serves as Special Counsel to the Department of Social Services and the FOIL Officer for the County Executive and the Sheriff.

1 E.g., on June 19, 2017, agencies contributing included Agriculture Marketing Service through Western Area Power Administration.

2 http://bit.ly/2iNz1sY.3 Office of the Federal Register, [email protected] See, e.g., 60-Day Notice of Proposed Information Collection: State Community Development Block Grant (CDBG) Program. http://bit.ly/2uO0m0T5 This is a common caveat: “The requirements of the prior notices continue to apply, except as mod-ified by this notice.” http://bit.ly/2w0ZWbc.6 82 Fed. Reg. 27831 (June 19, 2017).7 Jan. 29, 2013, 127 Stat. 15.8 http://bit.ly/2uIbSyW.9 Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq.10 This Notice advises Community Development Block Grant disaster recovery (CDBG-DR) grant-ees with grants pursuant to the Disaster Relief Appropriations Act, 2013 (the Appropriations Act) of the process and requirements associated with grantee requests for an extension of the 24-month expenditure deadline for specific portions of funds obligated under the Appropriations Act. http://bit.ly/2fKLQnS. 11 The Prior Notices are available at: http://bit.ly/2fJDOvq, http://bit.ly/2i5BaBc, and http://bit.ly/2vCPB4p. To search the Federal Register gener-ally, visit www.federalregister.gov.12 http://bit.ly/2w0ZWbc.13 http://bit.ly/2vI2GaU.14 Emphasis added.

Guide to Federal Register


C. The Nassau County Bar Association should he heard on this important question

The Mission Statement of the Nassau County Bar Association12 provides that the Association’s purposes are, among others:

• to protect and improve our sys-

tem of justice and its institu-tions, in order to promote the fair, swift and sure administra-tion of justice; and

• to inspire among all citizens respect for the law and the gov-erning principles of our democ-racy, by personal and profes-sional example and by public education;

A Constitutional Convention could result in significant changes to the oper-ation of State and local government, the structure of the court system, and the

rights of individuals. The question is presented to each generation of voters only once. Consistent with our mission, we should make our voice heard on these important issues that affect the administration of justice and the prac-tice of law, and help the public to make an informed decision.

1 N.Y. Const. art. XIX, § 2.2 The report reflected the positions of the Committee as an entity, and not necessarily those of its individual members, some of whom abstained from the vote.3 Special Commission on the Future of New York

State Courts, A Court System for the Future: The Promise of Court Restructuring in New York State 8 (2007), available at http://www.courts.state.ny.us/reports/courtsys-4future_2007.pdf. 4 Appellate Division, Second Judicial Department, http://www.courts.state.ny.us/courts/ad2/ (last vis-ited Aug. 28, 2017). 5 N.Y. Const. art. XI, § 1.6 N.Y. Const. art. I, § 8.7 N.Y. Const. art. IV, § 1.8 N.Y. Const. art. XVII, § 1.9 N.Y. Const. art. I, §§ 17, 18.10 N.Y. Const. art. XIX, § 2.11 N.Y. Const. art. III, § 6.12 Mission Statement, Nassau County Bar Association (last visited Aug. 28, 2017), www.nas-saubar.org/About%20Us/Mission%20Statement.aspx.

President’s Column



24

be removed from office by a Justice of the New York State Supreme Court for misconduct, maladministration, or mal-feasance in office. This is a very high standard to attain and the courts have been extremely reluctant to remove elected officials from their respective offices unless there is a clear showing of profiteering, corruption, moral turpi-tude, or a gross violation of the public trust. Although no case law was found dealing specifically with the issue, a log-ical assumption is that violation of the confidentiality of the executive session demonstrates a violation of the public trust and, therefore, would subject a breaching board member to removal proceedings for cause. Granted, this is not a popular course of action or way of conducting village business, but on more than one occasion there have been blatant and purposeful violations of executive session which have caused irreparable financial and political dam-age to a well-meaning, hard-working village board.8

Confidentiality Many judicial decisions have focused

on access and the ability to disclose records or other information deemed “confidential” by a commissioner or board.9 In one instance, a former mem-ber of a school board was asked to divulge information she had received in executive session while she was still a member of the board. She refused, claiming that “it was discussed in exec-utive session” and therefore privileged and confidential.10

To be confidential under the Freedom of Information Law, the records must be “specifically exempted from disclo-sure by state or federal statute” in accordance with § 87(2)(a) of the Public Officers Law. Similarly, § 108(3) of the Open Meetings Law refers to matters made confidential by state or federal law as “exempt” from the provisions of that statute.

Both the state’s highest court, the Court of Appeals, and federal courts, in construing access statutes, have determined that the characterization of records as “confidential” or “exempt-ed from disclosure by statute” must be based on statutory language that specif-ically confers or requires confidentiality. As stated by the Court of Appeals, “[a]lthough we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear leg-islative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection.” 11

The same analysis is applicable in the context of the open meetings law. A strong legal argument can be made that violation of the executive session is grounds for removal for “cause,” as the definition of “confidential” and “classified” seems to be left to either expressly written statute or the discre-tion of the board.12

Disclosure of matters discussed in executive session would defeat the purpose of the apparent leg-islative intent of authorizing local legislative bodies to discuss these limited matters in private. Disclosure would be contrary to the public welfare. A locally enact-ed provision prohibiting disclo-sure would thus further the statu-tory purpose of executive sessions and promote the public interest.13

The case of Kline v. County of

Hamilton involved a request made under the Freedom of Information Law for tape recordings and transcripts of executive sessions. The court referred to the first ground for denial, § 87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute,” and con-cluded that:

While the purpose of FOIL is to lift ‘the cloak of secrecy or confi-dentiality’ (Public Officers Law, §84) from governmental records which are part of the governmen-tal process, where, as here, con-fidentiality has been specifically sanctioned by Public Officers Law §§105 and 106, the records at issue fall within the exemption of Public Officers Law § 87(2)(a) and are to be shielded from public disclosure.It seems clear that under the Public

Officers Law, a governing body of a municipality may withhold any records of discussions properly taking place in executive session. Section 806(1)(a) of the General Municipal Law, autho-rizing municipal codes of ethics that prohibit, inter alia, disclosure of infor-mation, is consistent with and rein-forces this fact. A local legislative body, by local law or in its code of ethics, has statutory authority to prohibit a legislator from disclosing matters dis-cussed in executive session, although the decision to go into executive session is discretionary, and that any such prohibition on speech would be sub-ject to state and federal constitutional requirements.14

Reasonable DiscretionThis article raises a complex legal

theorem: how far does confidentiality of the open meetings law exception extend? Review of the Public Officers Law and Open Meetings Law statutory scheme and the lack of on point case law lead to the substantive conclusion that reasonable discretion should be exercised when determining when and how to release confidential (or privi-leged) information. “Inappropriate dis-closures work against the interests of a [village], and have long-lasting and deleterious impact on personal privacy, collective bargaining negotiations and could even interfere with a criminal investigation.”15

The sacrosanct obligation to protect

the integrity and functionality of the executive session must be balanced with the public’s unalterable right to be informed. A Board must also guard against those rogue board members who don’t appreciate or recognize that sol-emn duty. While the law may be silent or not go far enough on this particular aspect of operational village govern-ment, that silence or omission should not be construed as a call to inaction. The citizenry deserves better.

Charles J. Caseloro, is the principal of the Law Offices of Charles Casolaro of Garden City, and a village attorney for two Long Island villages, as well as special counsel to others. He can be reached at [email protected].

1 See N.Y. Pub. Officers Law §§ 100-111.2 For purposes of this article, the word “impeached” shall be construed to mean actual conviction and removal, not to be confused with traditional notions of constitutional impeachment which is similar to an indictment before trial. See N.Y. Pub. Officers Law § 105.3 See N.Y. Dep’t of St. website on Open Meetings Law, www.dos.ny.gov/coog/openmeetinglawfag.html.4 N.Y. Gen. Constr. Law § 41 stating “[w]henever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meet-ing, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words’whole number’ shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.” See also N.Y. Vill. Law § 4-400.5 N.Y. Pub. Officers Law § 107.6 Id.7 See N.Y. Pub. Officers Law § 30, discussing vacancies of elective office for cause leading to removal, et al.8 The more litigious and political the atmosphere becomes the more power a village mayor and board need to effectively govern.9 See N.Y. Dep’t of St. Comm. on Open Gov’t, Advisory Opinion OML-AO-4530 (2007).10 Id.11 See Cap. Newspapers v. Burns, 67 N.Y.S.2d 562, 567 (1986).12 Supra note 9; Advisory Opinion OML-AO-4530 (2007).13 Kline v. Cty of Hamilton, 663 N.Y.S.2d 339 (1997).14 See N.Y. Dep’t of St. Comm. on Open Gov’t, Advisory Opinion OML-AO-3232 (2001).15 Id.

Village Governments


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