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B A R A S S O C I A T I O N O F E R I E C O U N T Y Vol. 52 | No. 7 | March 2013

By Kathleen M. Sweet

Lots to tell you about for March and beyond:

As I write this on Super Bowl Sunday, I amheaded to the ABA Midyear Meeting in Dallas. Ifyou read to the end of this letter, you will berewarded with a chuckle, or at least an eye roll,when you see my favorite portion of theadvance promotional material for the leader-ship seminar I will attend with the NationalConference of Bar Presidents. But to get to that,you must first read on about the events andprograms in store for you from the BAEC.

Let me begin with a shameless plug for thePresident’s Ball at The Mansion on Delawareon Saturday, March 16th. I have been remissin choosing the color palette for the invitations,but watch for them in your mail and please docome (see details on page 16). I promise to buffthe tiara. It will be a great night to relax andenjoy great food, a live band and more than afew good laughs with friends. And if that’s notenough, the election slate for next year will beannounced at the party. All that plus dancing!

In April, we will at long last have our hockeygame fundraiser with the Buffalo SabresAlumni Association (see article above). Thelabor dispute kept us from confirming a date,and after all, we wouldn’t want to play theSabres Alumni on a night that Rob Ray wascalling a game for the team. April 23rd prom-ises to be another fun night full of laughs for agood cause. Additional details will soon followby e-mail and of course in the next issue of theBulletin.

For our Annual Law Day Luncheon at theHyatt, we have confirmed a great keynotespeaker, one of the highest ranking attorneys inthe land, Buffalo’s own native son and CanisiusHigh School graduate, Tom Perez, Assistant

Local lawyers will lace up their skates andtake on members of the Buffalo SabresAlumni Association on Tuesday, April23 at the Holiday Twin Rinks inCheektowaga. The exhibition gamewill begin at 7:00 p.m. and all pro-ceeds will benefit the Erie CountyBar Foundation.

Bar Association players have beenasked to garner sponsorships anddonations payable to the Erie CountyBar Foundation. Dennis J. Bischof isorganizing this special event. Furtherdetails will be released as they becomeavailable. Save the date now and plan to enjoy

a night of high-spirited competition withfamily and friends for a great cause!

The Erie County Bar Foundationwas formed in 1957 by a smallgroup of concerned lawyers whowanted to help a colleague. Inthe ensuing years, hundreds ofattorneys in Erie County havebenefited from the timely assis-tance of the Foundation, theonly organization of its kind inthe United States dedicated to

helping members of the profession intimes of crisis. [B]

Bar Members Take on Sabres Alumni;Game to Benefit Erie County Bar Foundation

Chapter 184 of the laws of 2012 authorizes manda-tory e-filing in Erie County Supreme Court. NewYork’s Chief Administrative Judge, A. Gail Prudenti, isexpected to issue an administrative order designatingcase types and effective dates for this mandatory pro-gram soon.

Cases that will require e-filing include commercialand residential foreclosures, commercial actions, con-tract and tort actions, medical malpractice actions,asbestos matters and tax certiorari proceedings.

Initial training for attorneys and their staff memberswill be provided on March 7 at 10:00 a.m. andMarch 19 at 2:00 p.m. in the Ceremonial Courtroom

on the second floor of Erie County Hall, located at 92Franklin Street in downtown Buffalo. Additional train-ing will be offered in June and September. Attorneysand their staff members may attend either session. Thetraining is free of charge, and attorney-participantswill receive two CLE credits.

Further information about the training is availableon the NYSCEF Web site, www.nycourts.gov/efile, orby contacting the Resource Center at 646-386-3033,or at [email protected]. Attorneys may go to theNYSCEF Web site, or go to http://eriesupreme.eventbrite.com, to register online now for either train-ing session.

Training Scheduled for Mandatory E-Filing

Plan now to be at Bar Headquarters on Thursday, March 21 any time from noon to 5:00 p.m. forpizza, wings, snacks and drinks. Just $10 buys a bracket and all proceeds go to the Bar Foundation,Lawyers for Learning, the Volunteer Lawyers, or Legal Services for the Elderly. What’s not to love?Enjoy the upsets, buzzer beaters, and all the other HOOPLA of this fun-filled afternoon with your

colleagues! See more information on page 5.

Month Before April Madness is Here!

continued on page 12

www.eriebar.org | March 2013

EDITORIAL BOARDEditor ............................................Bonnie D. O’BrianLaw Editor ....................................Jeffrey A. SpencerTax Notes Editor ..........................Gary D. BorekArt Editor ......................................Giles P. Manias

Hon. David J. Mahoney(1960-2008)

Photography ................................Susan L. KohlbacherGlenn Edward Murray

Editorial Assistant ........................Brittany O. Luongo

OFFICERS AND DIRECTORS | 2012-2013President ......................................Kathleen M. SweetVice President ..............................Michael J. RyanTreasurer........................................Donna L. BurdenDeputy Treasurer ..........................Bruce W. HooverExecutive Director........................Katherine Strong Bifaro

Vol. 52 | No. 7 | March 2013

BAR ASSOCIATION OF ERIE COUNTY

Organized 1887

438 Main Street, Sixth Floor | Buffalo, New York 14202

(716)852-8687 | fax (716)852-7641 | www.eriebar.org

Bulletin correspondence: [email protected]

BOARD OF DIRECTORSHoward B. Frank, Brenda M. Freedman, Hope R. Jay, Laura A. Monte,Regina A. Del Vecchio, Frank LoTempio III, Daniel T. Lukasik, Brian M.Melber, Edward J. Markarian, Marianne Mariano, Daniel J. Marren andWilliam F. Savino.

LIFE MEMBERS

Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Patrick J. Bannister, LynnA. Clarke, William J. Cunningham, Eric P. Doherty, Victor J. Gagliardi,Sharon Stern Gerstman, Jean E. Gittler, Donald J. Holzman, StanleyKwieciak III, Michael P. McClain, J. Eldon Owens, Lauren D. Rachlin, JeffreyA. Spencer, James M. Wadsworth.

Would you like to see your name here? See page 4 to find out how to become a contributing member.

CONTRIBUTING MEMBERS

Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Hon. Tracey A. Bannister,Stephen E. Barnes, Edwin T. Bean, Jr., Thomas R. Beecher, Jr., Ronald P.Bennett, Leonard Berkowitz, David W. Beyer, Richard S. Binko, Richard N.Blewett, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman, Patrick J.Brown, T. Alan Brown, Joel Brownstein, David Buch, Donna L. Burden,James P. Burgio, Michael C. Burwick.

John F. Canale, John J. Carney, Alan S. Carrel, Thomas R. Cassano, StephenE. Cavanaugh, Ferdinand J. Ciccarelli, Emilio Colaiacovo, John F. Collins,William B. Collins, Anthony J. Colucci, Jr., Robert B. Conklin, Robert N.Convissar, Edward C. Cosgrove, Peter L. Costa, Donyelle E. Crapsi, Paul V.Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P. Curvin, RogerT. Davison, Regina A. Del Vecchio, John M. Dempsey, Richard F.DiGiacomo, Anne C. DiMatteo, Dean M. Drew, Hon. Timothy J. Drury,Marvin T. Dubin, Robert E. Dwyer, Donald B. Eppers, Leo J. Fallon, Victor N.Farley, Mark G. Farrell, Gabriel J. Ferber, Michael E. Ferdman, Robert P.Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald, Richard E. Forrestel, LawrenceC. Franco, Brenda M. Freedman, Jeffrey M. Freedman, MaryannSaccomando Freedman, Robert Friedman, John J. Fromen.

Thomas J. Gaffney, William H. Gardner, Lynn D. Gates, Eugene M.Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl, Hon.Samuel L. Green, John C. Grennell, Richard F. Griffin, John J. Gruber, MarkW. Hamberger, Thomas J. Hanifin, James P. Harrington, Mary LouiseHayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S. Hogan, Edwin P.Hunter, Melvyn L. Hurwitz, Norman E. Joslin, James B. Kane, Jr., Judith D.Katzenelson, Christopher C. Kerr, James J. Kirisits, William J. Kita, ChristianG. Koelbl III, Dan D. Kohane, Karl W. Kristoff, Thomas E. Krug.

Stephen R. Lamantia, John P. Lane, Richard J. Lehner, John N. Lipsitz,Richard Lipsitz, Arthur A. Lorenzo, Frank LoTempio, III, Leo M. Lynett, Jr.

James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Giles P.Manias, John Markarian, Mary Dee Martoche, Hon. Salvatore R.Martoche, Norman J. Mattar, Hon. Jeremiah J. McCarthy, Maureen A.McCready, Thomas I. McElvein, Jr., Donald G. McGrath, Diane J.McMahon, Brian M. Melber, Hon. John A. Michalek, Raymond T. Miles III,Joseph D. Mintz, Albert J. Mogavero, Peter J. Murrett, Jr., Joseph M. Nasca,Paul T. Nesper, Paula M. Eade Newcomb, Anthony M. Nosek, Hon. HenryJos. Nowak, James J. O’Brien, Robert L. O’Connell, Hon. John F. O’Donnell,Timothy M. O’Mara, Francis J. Offermann, Jr.

Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, RobertE. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla,Michael F. Perley, Nicholas A. Pierino, Joel M. Poch, Theodore J. Pyrak,James P. Renda, Mary (Molly) K. Roach, Jay N. Rosenthal, Hon. Mario J.Rossetti, Victor A. Rossetti, Richard P. Rosso, Arthur J. Rumizen, Arthur A.Russ, Jr., Thomas Santa Lucia, Scott M. Schwartz, Edward J. Schwendler,Jr., Richard B. Scott, Donald P. Sheldon, Richard J. Sherwood, Louis H.Siegel, Myron M. Siegel, Robert G. Sillars, Richard Charles Slisz, Robert B.Sommerstein, Gregory Stamm, Robert S. Stephenson, Milton J. Strebel,David L. Sweet, Kathleen M. Sweet.

Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Thomas V. Troy,Frederick D. Turner, Dimitri J. Tzetzo, Peter A. Vinolus, Dale M. Volker,Matthew X. Wagner, Jr., John B. Walsh, Neil Weinberg, Peter C. Wiltse,Wayne D. Wisbaum, Richard D. Yellen.

Letters to the editor and short articles of general interest to our readers are alwayswelcome. All materials submitted for publication in the Bulletin are subject to editing for reasons of style, space and content.

Send all submissions as Word documents to [email protected] (preferred) or by mail to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.

Call Brittany Luongo at Bar Headquarters for more information, 852-8687.

DEADL INE• • • May 2013 Bulletin D E A D L I N E • • •

The next deadline for ALL Bull etin contributors and advertisers is

Friday, April 5, 2013.

“Your Honor, I will be accompanied during my summation by a quintet playing specially composed mood music.”

Do you have a great idea for an editorial cartoon? If so, the Bulletin’s resident cartoonist, former BAEC presidentand painter Giles P. Manias, wants to know. Members are invited to either submit their own cartoons or ideas for

Giles to illustrate. Send your ideas to Bulletin Editor Bonnie O’Brian at [email protected].

David J. Mahoney

Letter to the EditorThe letter by the Bar Association of Erie County’s

President, Kathleen Sweet, about the recent mass mur-ders committed by evil and lunatic criminals, whichappeared on the front page of the February Bulletinperpetuated the ignorant demonization of the SecondAmendment, the National Rifle Association, and law-abiding, safe gun-owners, by their political enemies.

President Sweet expressed sympathy for the victimsof evil and lunatic criminals; but has she ever expressedsympathy or admiration for the NRA for operating thelargest and most successful gun-safety program in theworld, which has contributed to the huge decline inAmerican gun accidents over the past 40 years?

Has President Sweet ever expressed sympathy oradmiration for the NRA’s constant advocacy of thestrict enforcement of existing laws about gun crimesand the severe punishment of gun criminals?

Has President Sweet ever expressed sympathy oradmiration for the NRA’s outraged opposition to the“gun-walking” programs (which put illegal guns intothe hands of drug dealers and other criminals, andcaused the deaths of innocent people) conducted byPresident Obama’s Bureau of Alcohol, Tobacco andFirearms?

Has President Sweet ever expressed sympathy oradmiration for the NRA’s historical support for theentire Constitution and Bill of Rights, including for theFirst Amendment which grants her the freedom to crit-icize those very liberties?

Wouldn’t it be better to consult with knowledgeablepeople when considering tampering with theConstitution which has guided us successfully for 200years, such as neutral unbiased think tanks on violentcrime, Second Amendment scholars, and even the NRAitself (it is, after all, a national authority on guns)? Incontrast, most of the enemies of the SecondAmendment wear their ignorance about guns and vio-lent crime as a badge of pride, and prefer to confuselaw-abiding, safe gun owners with evil and lunaticcriminals.

President Sweet demonized the National RifleAssociation and its “political clout.” Why does the NRApossess that “political clout”? It’s because NRA mem-bers and other safe gun owners comprise millions ofintelligent and virtuous American citizens who disagreewith President Sweet. We ought to consider that thosevast numbers of thoughtful, safe gun owners might beright and that the enemies of the Bill of Rights mightbe wrong.

Michael J. MontesanoBuffalo

Do you agree with this writer? Disagree? Either way,we want to hear from you. Send letters [email protected]. The Bar Association reservesthe right to edit all submissions for length, style andother considerations.

March 2013 | www.eriebar.org

Robert J. Schreck has beennamed managing attorney withCellino & Barnes, p.c., where he willfocus his practice on personal injurycases. As managing attorney, he willbe responsible for overseeing thefirm’s 48 attorneys in offices inBuffalo, Rochester, New York Cityand Long Island. Schreck has been

with Cellino & Barnes since 2003. He is a graduate ofSUNY at Buffalo, where he earned both his undergrad-uate and law degrees.

Kristin M. Machelor has been named partner, andNicole Graci and Kim M. Brewer have been namedspecial counsel at Hamberger & Weiss. Machelor joinedthe firm in 2005, Brewer in 2002 and Graci in 1999.

Machelor is a graduate of the State University ofNew York at Buffalo and received her J.D. from its LawSchool. Graci received her undergraduate degree fromCanisius College, summa cum laude, and her J.D. fromthe State University of New York at Buffalo School ofLaw. A graduate of New York University, Brewer alsoholds an M.A. from the University of London and aJ.D. from New York Law School.

Michael C. Lancer and A. PeterSnodgrass have joined Collins &Collins Attorneys, LLC. Lancer hasalso been named managing attorney.A graduate of Fordham Law Schooland a U.S. Army veteran, he willfocus on personal injury and veter-ans’ legal issues. Lancer co-chairsNYSBA’s Committee on VeteranAffairs, and he is a board member ofBuffalo Veteran’s One-Stop Center.

A graduate of SUNY Buffalo LawSchool, Snodgrass joins the firm asan associate. As a combat medic inthe US Army, he served two tours ofduty in Iraq. Upon graduation fromlaw school, he worked as a project

director for Congresswoman Kathy Hochul (NY-26).

Timothy W. Hoover, a partnerwith Phillips Lytle LLP, has beenelected president of the board ofdirectors of Neighborhood LegalServices, Inc. (NLS). NLS providesfree civil legal services to low-incomeand disabled residents of Erie,Genesee, Niagara, Orleans andWyoming Counties. Hoover’s prac-

tice is focused on civil and commercial litigation instate and federal courts, and appeals. A graduate ofMichigan State University, with high honor, Hooverreceived his J.D., Order of the Coif, from VanderbiltUniversity School of Law. He serves as a pro bonopanel member for the U.S. Court of Appeals for theSecond Circuit.

bench and bar in the news

How to place an announcement:

If you are a BAEC member in good standingand you’ve moved, been promoted, hired anassociate, taken on a partner, or received anaward, we’d like to hear from you. Talks,speeches (unless they are of national stature),CLE presentations and political announce-ments are not accepted. In addition, we willnot print notices of honors determined byother publications (e.g., Super Lawyers, BestLawyers, etc.). Notices must be submitted inwriting and limited to 100 words. They areprinted at no cost to members and are subjectto editing. E-mail your notice and high resolu-tion photo (300 dpi) to [email protected]

Schreck

The need may be based on medical problems, job loss, emotional difficulties, family crises or many other situations. No person or problem is categorically excluded.

If you need assistance – or know a friendor colleague who does – please callKelly Bainbridge at 628-4892. All services are individualizedand completely confidential.

Machelor Graci Brewer

Lancer

Snodgrass

Hoover


Beckage New Chair ofAdmission Committee

Jennifer A. Beckage of PhillipsLytle LLP has replaced Sean C.McPhee as Chair of the BAEC’sAdmission to the Bar Committee. Anhonoree of the New York State BarAssociation’s 2011 Empire StateCounsel Program for Pro Bono Work,Beckage also volunteers her time forthe ECBA Volunteer Lawyers Project

and the Make-A-Wish Foundation. She focuses herpractice on complex business disputes and commerciallitigation and also has experience in e-discovery, com-puter forensics and social media issues. Beckage hasauthored articles and been a presenter on technology-related topics concerning discovery of electronic infor-mation in state and federal lawsuits. She is a graduateof the State University of New York at Buffalo, whereshe also received her J.D., magna cum laude. [B]

Beckage

It’s great to belong to

something this good.

Expand your mind and improve your practice!

A group of Erie County lawyers

will travel to Washington, D.C. on

Monday, APRIL 22 to be admitted to

the U.S. Supreme Court Bar

(see details on page 15).

To join them,

call Dennis J. Bischof at 630-6500.

A dm i s s i o n to t h eU . S . S u preme Court

western district case notes

By Paul K. Stecker and Kevin M. Hogan

PAGE 4www.eriebar.org | March 2013

ABSTENTIONIn Value Manufactured Homes, LLC v. Key Bank,

N.A. (12-CV-6392L, 1/28/13), the court granteddefendants’ motion to stay pending the outcome ofrelated litigation in a Michigan state court. The deci-sion addresses three abstention doctrines that applywhen a case in federal court is related to state court lit-igation: the Rooker-Feldman doctrine, Burford absten-tion and Colorado River abstention.

ATTORNEYS’ FEES/ERISAIn United Union of Roofers, Waterproofers, and Allied

Workers, Local No. 210, AFL-CIO v. A.W. Farrell & Son,Inc. (07-CV-224-HKS, 1/10/13), defendants moved forattorneys’ fees following the magistrate judge’s deci-sion, after a non-jury trial, dismissing plaintiffs’ ERISAclaims for unpaid pension and other benefit contribu-tions. Applying the Chambless factors, the judge deniedthe motion, finding that plaintiffs’ claims had not beenbrought in bad faith or for any purpose other than topromote the interest of plan beneficiaries, and that anaward of fees to the defendants would not advanceERISA’s remedial purpose.

EMPLOYMENT DISCRIMINATIONIn Turley v. ISG Lackawanna, Inc. (06-CV-794S,

1/11/13), the court denied defendants’ motion for anew trial after a jury awarded the plaintiff approxi-mately $1.3 million in compensatory damages and $24million in punitive damages on claims for hostile workenvironment and intentional infliction of emotional dis-tress. Among other rulings, the court held that therewas sufficient evidence to support the jury’s findingsthat the employer and its parent corporation were “sin-gle or joint employers” for purposes of Title VII, that

defendants’ claimed remedial steps with respect toother employees’ harassment of plaintiff “were eithertoo little, too late, or both,” and that the supervisor’sconduct that was the basis for the emotional distressclaim was within the scope of his employment.Although the award of compensatory damages wasupheld, the court issued a remittitur on the punitivedamages claim, granting a new trial on that claimunless plaintiff accepts an award of $5 million.

EXPERT WITNESSESIn Lee Valley Tools, Ltd. v. Industrial Blade Co. (10-

CV-6242CJS, 1/29/13), the magistrate judge ruled onvarious issues raised by the proposed testimony ofplaintiffs’ damages expert. Among other rulings, thejudge held that it was not impermissible for the expertto rely upon work done by a colleague, but that,because the expert was generally unfamiliar with thedetails of the colleague’s verification work, the defen-dant was entitled to depose the colleague as well as theexpert. In addition, because the expert relied on finan-cial summaries prepared by plaintiffs, defendant wouldbe afforded the opportunity to review the data onwhich the summaries were based and to depose theemployees who produced the summaries.

LANHAM ACTIn The Buffalo News, Inc. v. Metro Group, Inc. (12-

CV-808S, 1/26/13), the court granted defendants’motion to dismiss plaintiff’s amended complaint alleg-ing that defendants, community newspaper publisherswho compete with plaintiff, violated the Lanham Actby providing potential advertisers with sample pack-ages of promotional materials that included “moreinserts, from more nationally recognized retailers, than[defendants are] typically able to produce.” The court

held that the Lanham Act prohibits only false or mis-leading statements or representations of fact, and thatthe mere presence of extra inserts in the sample pack-ages did not constitute a “statement” or “representa-tion.” Having dismissed the Lanham Act claim, thecourt declined to exercise supplemental jurisdictionover plaintiff’s state law claims.

PRODUCTS LIABILITYIn Bristol Village, Inc. v. Louisiana-Pacific Corp.

(12-CV-263S, 12/31/12), plaintiff commenced aputative class action asserting express and impliedwarranty and other claims with respect to an alleged-ly defective building product. Among other rulings,the court (i) dismissed the breach of implied warran-ty claim because it was barred by the four-yearstatute of limitations and because plaintiff did notsufficiently allege facts to establish privity; (ii) dis-missed the negligence claim under the Economic LossDoctrine because the claimed damages related solelyto the failure of the allegedly defective product to per-form its intended purpose; (iii) dismissed the unjustenrichment claim because there was a written con-tract in the form of the express warranty, and for lackof privity; (iv) held that plaintiff’s claim under NewYork General Business Law §349 sufficiently allegedthat defendants’ conduct was consumer-oriented andallegedly misleading; and (v) allowed the punitivedamages claim to proceed to the extent such damageswere sought for violation of §349. [B]

Become a ContributingMember!

The BAEC bylaws confer “contributing member”status on any member who resides or maintains anoffice in Erie County and elects to pay an additional$50 in annual dues to help support Association pro-grams. Contributing members have the same rightsand privileges as regular members and “such addi-tional rights and privileges as the board of directorsshall bestow,” including special recognition in the Bulletin, annual dinner program and other pub-lications.

March 2013 | www.eriebar.orgPAGE 5

By Martha Buyer

I met Charlotte Smallwood-Cook about 20 yearsago. But I think I’d heard stories about her all mylife. My father, longtime Buffalo News reporter BobBuyer, had sort of a thing for Charlotte, and so hespoke of her with respect and affection, and oftenenough so that her name was always familiar to me.

Dad met Charlotte in 1951 when she was the D.A. inWyoming County. In addition tobeing the first woman D.A. in NewYork state (an accomplishmentCharlotte managed at the ripe oldage of 26), Charlotte was also thefirst woman in New York to win acapital murder case. The casewas a headline grabber, and mydad covered the case for theNews. In an article about the case,he mentioned that Charlotte waswearing a green suit. In what Icame to understand as vintageCharlotte, she was livid (at thetime, and more than 60 yearslater) that he’d mentioned what she wore.

“He’d never have mentioned what a man was wear-ing,” she said to me, as recently as this pastNovember. The photo that he took of her at the time ispictured here, and while the photo is black and white,the suit was, as he’d said, green.

In 1996, I was working on a project as a volunteerlawyer to rewrite bylaws for a very well-organizedcommunity organization. I was green as a lawyer to besure, and when I went to a meeting of the organizationexpecting pleasantries and greetings, I felt ambushed,as I had no idea that there was significant strife withinthe organization. The meeting was anything but

friendly. The next day, I was in Warsaw gettingCharlotte’s advice, which was thoughtful, reasoned,and- just like Charlotte - right on the money.

When Charlotte died days after her 90th birthday, Ireached out to her former law partner Jane Schmiederand her loyal and smart “right hand” JudyBailey. Although I was certainly saddened by the news,in the truest sense of the word, I remain grateful for the

opportunity to have known Charlotte fortwo decades.

Charlotte loved being a lawyer. She waswickedly smart, savvy and passionateabout things that were important to her.While I never saw her in court, I under-stand that she was an absolute force inthe courtroom. She continued to workuntil several months ago, when her dete-riorating vision made reading just toochallenging. She was scheduled to argueat the Court of Appeals in 2003, sidelinedonly by breaking her hip on her way tocourt. But retire? She’d never think of it.

Charlotte loved meeting, getting to know and mentoringpeople. She loved smart conversation about a seeminglyinfinite number of topics. She loved art, and she lovedFrance. And she loved a good vodka gimlet. At lunch.

As I got my own chance to enter her orbit, I came torealize how right my dad was. Charlotte was trulysomeone special who inspired – and will continue toinspire – everyone around her.

A Tribute to Charlotte Smallwood-Cook 1923 – 2013

Dear Members of the Bar and Fellow Bracketeers:

The third annual Month Before April Madness isupon us and it’s time to embark on picking a winnerfor our favorite organizations for the 48 games of thefirst and second rounds of the tournament, the rules areas follows:

On Monday, March 18, the brackets for the firsttwo rounds of the tournament will be put up on theBAEC Web site. Since there are four play-in games, thebracket in some spots will list two teams as possibleopponents for the team on the other side of the game.

Ex:Spitler/Ryan

vs.Sweet

Since we all know that neither Spitler nor Ryanwould ever stand a chance against the President – justthink: when was the last time you heard that Obamalost a pickup game he played? – you could confidentlymove Sweet into the next round without even knowingif Spitler or Ryan won the game between the two ofthem.

Now, the more cautious participants may want toawait the outcome of Spitler/Ryan because theirfavorite movie of all time is HOOSIERS and they willremember Hickory High’s upset of Central. Whateveryour preference, your bracket with all your winners forthe 48 games (i.e. 32 games in round one and 16games in round two) must be submitted no later thannoon on March 21 by mail or hand-delivered to BarHeadquarters, 438 Main Street, Sixth Floor. If mailing,your entry must be post-marked by March 20. If sub-mitting in person or by mail, please include your check,payable to the BAEC-Basketball Madness in theamount of $10 for each bracket you are submitting.You can enter as many brackets as you want. If sub-mitting by e-mail, please mail in your check. Don’t for-get to list your name, the organization you are playingfor and the tie-breaker.

“Charlotte...was

wickedly smart, savvy

and passionate about

things that were

important to her. ”

continued on page 6

Month Before April Madness


TIGHTENING TERRORISM STATUTEGang violence has been held to be outside the

purview of the New York Terrorism statute (PL4590.25) in Peo. v. Morales, (__NY3rd__, 12/11/12).

PONDERING E-MAIL IMPERSONATIONThe Appellate Division has upheld a conviction for

using e-mails to impersonate other persons to theirdetriment. (Peo. v. Golb, __AD3rd__, 1st Dept.,1/29/13)

AUTOPSY SUIT GETS BOOTOur Fourth Department has dismissed a suit alleging

that the plaintiff doctor did not receive prior notice thatthe inmate (decedent) subject of an autopsy had tuber-culosis. (Muckova v. SNY, __AD3rd__, 2/1/13, #1490)

FOREIGN ENFORCEMENTThe Fourth Department has upheld Justice John

Michalek’s enforcement of a Pennsylvania judgmentinvolving alleged nonpayment of a commercial con-tract. (CPB Int., Inc. v. Fed. Lab. Corp.,__AD3rd__,2/1/13, #1485)

LATE WON’T RATEThe Appellate Division reversed the grant of a peti-

tion to serve a late notice of claim on the defendantmunicipality. The claim arose out of an allegedsprained ankle during a school basketball class. Thiscase is a good review of the grounds for these petitions.(In the Mtr. of Anderson v. NYC Dept. of Ed. Etal.,___AD3rd__, 2nd Dept., 1/30/13)

PONDERING GUARDIAN POWERSA duly appointed guardian and trustee was held to be

properly empowered to transfer the named beneficiaryfrom the protected individual to the trust established

for that individual. (Danow v. NY Life Ins. Co. et al.,__AD3rd__, 1st Dept., 1/29/13)

SUPPRESSION LESSONSThe Fourth Department has held that the police did

not have sufficient basis to pursue the defendant andsuppressed a handgun that he allegedly discardedwhile being pursued.

(Peo. v. Cady, __AD3rd__, 2/1/13, #1427) See alsoPeo. v. McGrew, (__AD3rd__, 4th Dept., 2/1/13,#1453).

A DAD IN DENIALAfter its own review of the record, the Court of

Appeals has held that there was clear and convincingevidence that the best interests of the child lay in deny-ing the alleged father’s paternity challenge and right toa DNA test. (In the Mtr. of Soc. Services v. Julio J.,__NY3rd__, 1/10/13)

A COMMISSION DECISIONA concise review and enforcement of a commission

agreement can be found in Mosca v. MassLLC,(__AD3rd__, 1st Dept., 1/29/13).

MATRIMONIAL MARRY-GO-ROUNDA good review and analysis of support awards can be

found in Kaufman v. Kaufman, (__AD3rd__, 1st Dept.,1/30/13). See also Williams v. Williams, (__AD3rd__,2nd Dept., 1/30/13).

When the parties’ separation agreement providesonly for modification in writing, an alleged oral modi-fication will only be recognized if there is a showing ofpast performance related to the alleged modification.(Parker v. Navarra, __AD3rd, 2nd Dept., 1/30/13) See

citationsBy Jeff Spencer

also In the Mtr. of Jeffery v. Sprague, (__AD3rd__, 4thDept., 2/1/13, #1349).

Ninety percent of a personal injury award was heldto be a spouse’s separate property even though thefunds were placed in a joint account. (Signorile v.Signorile, __AD3rd__, 2nd Dept., 1/30/13)

The calculation of a former spouse’s obligation tocontribute to a child’s college expenses is reviewed inMtr of Rashidi v. Rashidi, (__AD3rd__, 2nd Dept.,1/30/13). The parties had stipulated to 50 percent ofthe tuition at a state school, but the child attended amore expensive private college with some aid from thecollege.

RELOCATION ELATIONA thorough review of a relocation petition can be

found in Mtr. of Venus v. Brennan, (__AD3rd__,2/1/13, # 1310 ), in which a move from Syracuse tothe NYC area was approved by our FourthDepartment.

SLIP TIPS AND A STUMBLE BUMBLEA lawsuit was dismissed against the defendant who

had erected a “sidewalk bridge” to protect pedestriansfrom falling debris while work was being done on achurch building. (Blech et al. v. West Park Presb.Church and Eagle Scaffolding Service, __AD3rd__, 1stDept., 1/29/13) [B]

The tie-breaker will be the total of points scored inthose 48 games. If every game ended up 51-49, thecorrect answer for the tie-breaker would be 4,800points. PLEASE come up with a different (and clearlymore creative) number for your tie-breaker.

Now, for those of you who are thinking “I don’t knowanything about basketball but would still like to partic-ipate,” here are some easy rules to follow:

1. The people who make up these brackets are real-ly smart and usually the higher seeded teams win.Select the higher seed every time.

2. Look at the team mascots and pick the teamswith the mascot that would win in a battle of themascots (i.e. Podunk University Lumberjacks vs.the Middle of the Road College Sycamores).

3. Have a favorite color – always pick your favoritecolor or some shade of it over the others.

4. During championship week, do nothing butwatch college basketball. Tape every leaguechampionship game for later review. Watch everyACC, BIG 10, BIG EAST, SEC, PAC-10, MOUN-TAIN WEST, and ATLANTIC 10 tournamentgame. Based upon those observations and thefinal SAGIN ratings, pick your winners.

5. Always select the lower seeded team. You won’twin, but will be able to answer the question,“Who would have ever picked Lehigh, a #15seed, beating Duke, a #2 seed?” and yourresponse is, “I did.”

6. If anyone on a team (player/coach/manager) hasa last name similar to yours, pick that team.Why? Because then you can say that your relativewon a game in the NCAA tournament.

Remember, no matter how good or bad you are, itdoesn’t matter – because no one is going to win anymoney in this pool. But some organization that doesgreat things for lawyers or kids, or those who need help(i.e. Bar Foundation, Lawyers for Learning, VolunteerLawyers Project, Legal Services for the Elderly), willhopefully have a big pay day.

Please be sure to drop by Bar Association onThursday, March 21 any time between noon and 5:00p.m. to share some food, drink and friendship as wewatch as much college basketball as the networks cancram onto the screen.

Let’s make this a big payoff for one of these verydeserving organizations.

Thank you,

Kevin Spitler

Month Before April Madnesscontinued from page 5


Minority Bar Elects Officers and DirectorsThe Minority Bar Association of Western New York’s recently elected officers and directors for 2013 are pictured

above. From left to right are President Stephanie Calhoun, Corresponding Secretary Joel Moore, Recording SecretaryJennifer Metzger Kimura, Treasurer Gary A. Wilson, and Vice President Ericka N. Bennett. Not pictured are DirectorsLeah A. Bouquard and Mary C. Chan. Photo by Susan L. Kohlbacher

to attorneys who are troubled by emotional illness,financial hardship, alcohol and drug dependencies, andsimilar difficulties. Help us to help them.

There is a Buddhist saying:“If you light a lamp for some-body, it will also brighten yourpath.”

So I make this plea to all myfellow “busy” lawyers. Light alamp for our friends strugglingin the dark. Donate now atwww.eriebar.org or call 852-8687 today. You might brightenyour own path in the process.Thank you. [B]

We all know better. We all know we are more thanfortunate to have the work and pay our bills. But weget into our “busy” routines; we get selfish and boggeddown in our work and forget to pick ourheads up, look around and take notice of thefact that there are lawyers among us whoare really struggling – who are not busy andnot able to pay bills. These lawyers arefighting real battles against depression,addiction and loneliness in the dark whilewe play “beat the clock” in the light.

You might be thinking “So what? Whatcan I do? How can I help those lawyers?”The answer is simple. You can give to theErie County Bar Foundation. TheFoundation provides confidential assistance

Light a LampBy Mary Giallanza Carney

As a self-professed “busy” lawyer,I’d say that I have the same dialoguewith about a dozen other “busy”lawyers every day. The typicalexchange occurs in elevators or as wepass each other in bustling hallwaysand it goes something like this:

Lawyer A: “How are you, Lawyer B?”

Lawyer B: “Ugh, I’m soooo busy.”

Lawyer A: “Yeah, me too – soooo busy. Ugh.”

And then we go on about our full and hectic days,buzzing like bees in a hive. I am often reminded of thefirst time I “complained” about being busy and the les-son that my father-in-law, the distinguished andincomparable John J. Carney, taught me right then andthere – he said, “You know, you should be grateful forthe busy times – you could be not busy tomorrow.Then what? Never complain – there are a lot oflawyers out there who wish they were in your shoes.”

As always, John J. Carney was right. I felt pretty low– like a whiny kid complaining about having too manytoys to keep her room clean. I vowed that I would nevercomplain again about being too busy. Full disclosure: Ihave broken that vow time and again, even though Iknow better.

“If you light a lamp for

somebody, it will also

brighten your path.”

~ Buddhist saying

“You and the Law” Airs Weekly on NPREvery Friday, thousands of listeners tune in to “You

and the Law” during NPR’s “All Things Considered” tohear local lawyers share their expertise on a wide rangeof legal issues.

Call at 852-8687 if you’d like to be a guest on theshow.

“You and the Law” is made possible by grants fromthe Erie County Bar Foundation and the BAEC’sLawyer Referral and Information Service. [B]


DirectorsJohn J. AmanK. John BlandLaurie Styka BloomJames J. ContinoJ. Patrick LennonDaniel T. LukasikMichael L. McCabeHon. Patricia A. MaxwellNelson E. Schule, Jr.Mary L. SliszVincent J. SorrentinoKevin W. SpitlerDonna Hoelscher Suchan

PresidentCornelia Farley

Vice PresidentJ. Michael Lennon II

SecretaryCraig R. Bucki

TreasurerDavid C. Mineo

FOR FURTHER INFORMATION,

contact Cornelia Farley at [email protected]

or write to: PO Box 35, Buffalo, New York 14201-0035

St. Thomas More Guild Inc.An Organization for Lawyers

in the Diocese of Buffalo, New York

By Anne F. Downey

In early January, our nation narrowly avoided thefiscal cliff when Congress passed the AmericanTaxpayer Relief Act of 2012 and President Obamasigned the bill into law. Or did he?

The President, vacationing in Hawaii, instructed hisstaff to have the bill signed by autopen. An autopen isa mechanical device that reproduces a signature.Celebrities use autopens to sign large volumes of docu-ments. The device has an arm-like structure that holdsa pen, pencil or marker and moves the writing instru-ment in such a manner as to replicate a person’s signa-ture.

Autopens are not new. Signature duplicatingmachines have been around since the 1800s. ThomasJefferson had one at the White House and one atMonticello. In the 1930s, a more modern version, theRobot Pen, became commercially available, with a sig-nature matrix stored on a record that could be removedfrom the machine and stored elsewhere to avoid mis-use. Modern autopens use a memory card for the sig-nature matrix. Photos of Autopen machines can be seenat the manufacturer’s Web site at www.Damilic.com.

Presidents have long used autopens for correspon-dence. It is believed that Harry Truman was the first touse one, but President Gerald Ford was the first toadmit it.

An interesting legal issue is whether a President maysign a bill by autopen. In 2005, during the George W.Bush administration, the Department of Justice issueda written opinion stating that “The President may sign abill within the meaning of Article I, Section 7 by direct-ing a subordinate to affix the President’s signature to a bill, for example by autopen.” http:// www.jus-tice.gov/olc/2005/opinion_07072005.pdf

The Constitution states in Article I, Section 7 that

“Every Bill which shall have passed the House ofRepresentatives and the Senate, shall, before it becomea Law, be presented to the President of the UnitedStates; If he approves he shall sign it…”

The DOJ opinion states that, under the common lawat the time the Constitution was drafted, there was awell-established understanding that an individualcould sign a document by directing that his signaturebe affixed to it by another. Among various cases, theopinion cites Lord Lovelace’s Case,decided in 1632 in England, whichheld that a seal impressed by one“officer of the forest” with the con-sent of the other officers was “asgood as if every one had put hisseveral seal.”

The opinion also cites manystate court cases (including casesdecided by the New York SupremeCourt of Judicature in the early1800s) in which it was held thatthe signature of an agent counts asthe signature of the principal if theagent was duly authorized and theprincipal’s name was indicated.

Similarly, concerning federal matters, over the yearsthe Attorney General and DOJ have repeatedlyapproved situations where an executive branch officialhas signed a document by a delegate or mechanical

means. For example, in 1824, Attorney General WilliamWirt opined that the Secretary of the Treasury couldsign public documents by “stamp or copperplate”affixed by himself or by another at the Secretary’sdirection.

As to the signature of the President, on numerousoccasions the Attorney General has approved signatureby another person or by mechanical means. For exam-ple, in 1954, an assistant attorney general opined thatthe President could sign the commissions of U.S. mar-shalls by mechanical means. In 1969, during the Nixonadministration, AAG William Rehnquist (who becameChief Justice of the Supreme Court) authored a mem-orandum entitled “Delegation of the President’sAuthority to Physically Sign Documents,” which con-cludes that “[w]here the President’s signature is toappear on a document, the signature generally may beaffixed by any means, such as by someone else author-ized to sign the President’s name or by the use of amechanical signature device.” Also during the Nixonadministration, AAG Antonin Scalia (now a Justice ofthe Supreme Court) authored a similar memorandumin 1975, although Scalia suggested that the signing ofbills may be an exception that requires the President’sactual signature.

Before the fiscal cliff legislation, President Obamasigned bills into law by autopen on two prior occasionswhen he was out of the country. In May 2011, whileout of the country, the President used the autopen to

sign an extension of the Patriot Act. InNovember 2011, an autopen was usedwhen the President approved budget leg-islation.

Thus, when President Obama signedthe fiscal cliff bill in early January 2013,he was not blazing new territory. But itsurprises me that he would use the pro-cedure to sign this hotly contested pieceof legislation having such far-reachingimplications, especially when otheroptions were available for securing hissignature.

To the best of my knowledge, no onehas brought a court challenge to the use

of an autopen by a President. It seems likely that achallenge will arise some day, and it will probably endup in the Supreme Court.

Meanwhile, for all the fans of this column, pleasenote that I’ll be sending out my glamour photos auto-graphed by autopen. Hey, it’s legal (maybe). [B]

cyberlaw: the brave new e-world

By Anne F. Downey

“Please note that I’ll

be sending out my

glamour photos auto-

graphed by autopen.

Hey, it’s legal

(maybe).”

The President & the Autopen


Matter of Estate of Russo, 945 N.Y.S.2d395 (4th Dept., 2012)The issue in this case is whether a potential conflict

of interest will disqualify an executor from serving.

Decedent’s son was nominated executor in the will.Decedent’s daughter objected to the issuance of letterstestamentary to the son, claiming that the son had aconflict of interest with the estate. The Erie CountySurrogate granted the son’s motion for summary judg-ment, dismissing the objections. The FourthDepartment affirmed, with one dissent.

The daughter claimed that the decedent had aninterest in Tread City Tire, Inc., (TCT), and that theson had improperly refused to pursue that allegedinterest because the son was employed by TCT, andthe son anticipated an ownership interest in a new cor-poration being formed by the third-party owner ofTCT. The tax returns of TCT and the affidavit of thethird-party owner established that all of the stock inTCT was owned by the third party, and that decedentmerely managed the business. Further, the decedent’saccountant advised that the decedent was indebted toTCT for $50,000. Based upon that, the son determinedthat it would not benefit the estate to commence anaction with respect to the decedent’s alleged interest inTCT.

The Appellate Division noted the well-establishedrule that a decedent’s choice of executor should begiven great deference and not be disregarded unless theexecutor is not legally qualified to act as a fiduciary. Apotential conflict of interest on the part of a fiduciary,without actual misconduct, is not sufficient to renderthe fiduciary unfit to serve.

Matter of Estate of Makitra, 2012 NY SlipOp 8868 (4th Dept. 2012)The Fourth Department unanimously affirmed a

decision of the Surrogate’s Court of Steuben County,which, after trial, dismissed objections to the probate ofthe decedent’s will.

The objectant claimed that the decedent, who was ina nursing home and suffering from dementia when thewill was executed, lacked the capacity to make a validwill. The Appellate Division mentioned the basicrequirements of a will: that the decedent understoodthe nature and consequences of executing a will, knewthe nature and extent of his property, and knew thosewho would be the natural objects of his bounty and hisrelations with them. The court also noted, “Old ageand bad health, including dementia, when a will is exe-cuted are not necessarily inconsistent with testamen-tary capacity … as the appropriate inquiry is whetherthe decedent was lucid and rational at the time the willwas made.” The court found that there was adequateevidence to support the conclusion that the decedentwas of sound mind and memory at the time he execut-ed the will, including testimony of several witnesses,and a videotape of the execution ceremony.

The Fourth Department also held that the objectantfailed to provide evidence of a “substantial nature” tosupport his claims of undue influence. Additionally, thecourt confirmed that the Surrogate properly appliedthe Dead Man’s Statute – CLPR 4519 – to prevent theobjectant from testifying about his observations of thedecedent’s mental capacity. The court pointed out thatthe statute was designed “. . . to protect the estate ofthe [decedent] from claims of the living who, throughtheir own perjury, could make factual assertions whichthe decedent could not refute in court . . .”

Matter of the Estate of Phillips, 2012 NYSlip Op. 9196 (4th Dept., 2012)The Fourth Department unanimously reversed a

decision of the Erie County Surrogate, construing thedecedent’s will, and sent the matter back to the surro-gate for further proceedings.

The decedent was survived by three daughters and agirlfriend. The decedent owned a lot which measured120 by 300 feet, upon which his house was located.The decedent also owned a contiguous 88-acre parcelof farmland, which included a “pole barn” in which thedecedent housed a few cows and tractor. The will leftthe decedent’s residence “and the plot of land appur-tenant thereto” to the girlfriend, and also provided that“if any balance of a mortgage . . . against the said res-idence, or the plot of land appurtenant thereto,remains unpaid [the recipient shall take subject there-to].” The will left the balance of the estate to thedaughters.

The daughters filed a will construction proceeding,and moved for summary judgment, taking the positionthat the will provided that the girlfriend inherited thehouse and lot, and that they inherited the 88 acres. Thegirlfriend argued that the “plot of land appurtenantthereto” included not only the house and lot, but also

the contiguous 88 acres.

The daughters argued that “plot of land appurtenantthereto” was ambiguous, and submitted extrinsic evi-dence to explain the will, including a tax map whichshowed the lot and the 88 acres as being separate, andan estate planning questionnaire signed by the dece-dent, upon which he had written “I would like to leavemy house on . . . lot size 120 x 300 to [girlfriend].”

The Surrogate ruled that extrinsic evidence was notadmissible. The Surrogate studied the language of thewill, and noted that a mortgage could not have beentaken merely against the house and not against theland upon which it was located. The Surrogate saidthat the portion of the will relating to an heir takingsubject to any mortgage would be rendered meaning-less unless “the plot of land appurtenant thereto”included both the lot and the 88 acres.

The Fourth Department concluded that dictionarydefinitions of “appurtenant” did not clarify the dece-dent’s intent with regard to whether the gift to the girl-friend included the farmland, nor did a sympatheticreading of the entire will clarify the decedent’s intent.Therefore, said the court, the Surrogate should haveconsidered extrinsic evidence to explain to what piecesof land the will referred.

The Appellate Division held that the surrogate’sconclusion assumed that the decedent would have

death and taxes

By Peter J. & Jillian E. Brevorka



Death and Taxes continued from page 9The $5 million federal gift tax exemption may pro-

vide help in New York state estate tax planning situa-tions where the estate is between $1 million and $5million. While the New York state estate tax is basedupon the figures appearing on the federal estate taxreturn, the New York tax is computed on the grossestate less debts and expenses. The inclusion of lifetimetaxable gifts in the calculation of the federal estate taxon the federal estate tax return comes after the deduc-tion for state death taxes. That is, the calculation of theNew York state estate tax does require inclusion of life-time taxable gift. Therefore, lifetime gifting in NewYork may help to avoid New York state estate tax byreducing the taxable estate upon which the New Yorktax is calculated.

Be aware, however, that the $1 million exemption forNew York state estate tax purposes “disappears” verysoon after the $1 million exemption has been reached.That is, if the taxable New York estate exceeds $1 mil-lion, the New York tax will be computed on the entiretaxable estate, not merely the amount in excess of $1million. For instance, the New York estate tax on anestate of $1.1 million is $38,800, even though the taxbracket according to the tax tables is only 6.4 percent.That tax result is because the tax is computed theentire $1.1 million.

Therefore, reducing a New York estate, but not tak-ing it down below $1 million, may not generate asmuch savings as one might imagine.

The New York State estate tax rates on taxableestates between $1 million and $5 million go from 5.6percent to 11.2 percent. Therefore, making gifts in thatrange may only save between 6 and 11 cents on thedollar. Using assets which have built-in capital gains tomake such gifts would probably be self-defeating.Those gifts would save New York state estate tax in thesingle digits, but the recipient of the gift would take thedonor’s cost basis, and would later be subject to com-bined state and federal capital gains taxes in the rangeof about 25 percent. Therefore, care should be taken inselecting assets to be given away in attempting to avoidNew York estate tax.

ATRA 2012 also increased the top federal income taxbracket to 39.6 percent for individuals with taxableincome of more than $400,000, and married coupleswith more than $450,000. But for estates and trusts,that 39.6 percent bracket starts after only $8,654 oftaxable income. In addition, starting in 2013, theAffordable Care Act imposes a 3.8 percent tax on NetInvestment Income for trusts and estates in the highestbracket. Therefore, an estate or trust with investmentincome in excess of $8,654 will be paying federal tax ata combined rate of 43.4 percent, which will make dis-tribution of income to beneficiaries - to carry that tax-able income out to them - very important. [B]

ping transfers is now 40 percent, up from 35 percent.

The portability of the unused gift and estate exemp-tion from the estate of the first spouse to the estate ofthe second spouse has also been made permanent. Butthe estate of the first spouse must timely file an estatereturn, preserving the unused exemption, in order forthe exemption to be passed to the surviving spouse.Further, portability only applies to the gift tax and theestate tax, not the GST.

It should be noted, however, that portability is a fed-eral concept, and does not apply to the New York stateestate tax. Therefore, the use of a credit-shelter trustfor the $1 million New York state estate tax exemptionmay still be helpful in some estates.

Even in larger estates, where porting the federalexemption to the surviving spouse is available, use of acredit shelter trust still might prove useful if the trustwill accumulate income, and in situations where use ofthe GST exemptions of both spouses could prove ben-eficial.

understood that the lot could not have been mortgagedseparately from the residence. The Fourth Departmentheld there is no basis for that assumption.

While the Appellate Division said that the evidencesuggested that the decedent viewed the lot and thefarmland separately, and may support the daughters’contention, the court noted that the girlfriend support-ed her position by claiming that she and the decedentworked the farm together, and that the utilities for thebarn were attached to the house. Thus, the court con-cluded, the parties should be given an opportunity topresent extrinsic evidence to clarify the will language ata hearing before the surrogate.

Some Thoughts on 2013 Tax Law Changesfor EstatesThe American Taxpayer Relief Act of 2012 (ATRA

2012) has made permanent the $5 million federal gift,estate and GST tax exemptions. All are subject to infla-tion adjustments, and will be $5,250,000 for 2013. Therate of tax on taxable gifts, estates and generation skip-

lost in (techno) spaceBy Martha Buyer

When the subject of “network neutrality” or “openInternet” comes up, most people glaze over (or runquickly in the other direction). However, there is a casecurrently before the D.C. Circuit, brought by Verizonagainst the FCC, whose outcome could affect manybeyond the original parties.

In this case, Verizon has made a novel and risky con-stitutional argument that challenges the FederalCommunications Commission’s Open Internet rules inVerizon Communications Inc. v. FederalCommunications Commission, D.C. Circ., No. 11-1355, argued 9/30/11. The most interesting - if notcritical - legal question posed by the plaintiff iswhether, in its role as a provider of Internet access,Verizon is eligible for First Amendment protection. Arethe FCC rules that require Verizon to carry contentgenerated by others a restriction on Verizon’s First

Amendment rights? Are the existing rules that preventVerizon from treating content created by others to alesser level of service (placing some restrictions ondelivery, whether it be capacity, price, speed or someother limitation) or treating its own Web content betterthan those of its rivals who rely on Verizon as a deliv-ery mechanism only, a violation of Verizon’s FirstAmendment rights? At least from my (possibly warped)perspective, this makes interesting cocktail chatter.

However, in order to really understand the issue, it’simportant to understand the historical background. Itreally is interesting.

The Open Internet rules, which are synonymous withthe “network neutrality” discussion that’s been goingon for years, are a derivative of the rules of commoncarriage which were originally enacted when there wasa single telephone company. Raise your hand if you

remember those days. The rationale was that withoutobligations to provide connectivity to all customers andwith like services, a single phone company (AT&T),could use its monopoly power to both stifle its com-petitors and harm consumers.

In a similar vein, the “must carry” rules were creat-ed by the FCC in the 1970s to require cable companiesto carry content created by local broadcasters within a60-mile (later changed to 50-mile) radius of the cablecompany’s service area. In 2010, the FCC logicallyextended these rules designed for telephone usage andexpanded them to cover the carriage of Internet traffic(see http://www.fcc.gov/guides/open-internet).

But in the current case, it’s Supreme Court languagefrom the “must carry” rule cases regarding cable tele-vision that are playing a significant role in Verizon’sposition. In Turner Broadcasting et al v. FCC (512 U.S.622 (1994)) (http://www.law.cornell.edu/supct/html/93-44.ZS.html) and Turner II (http://www.law.cornell.edu/supct/html/95-992.ZS.html), the courtreviewed the “must carry” rules. Turner and the othercable providers’ argument was that by being forced tocarry local programming, they were denied the freespeech protections guaranteed by the FirstAmendment. The issue was Turner’s right to transmitonly that content that it created rather than that pro-vided by smaller and less powerful broadcasters (read:

A Novel Approach to Internet Regulation



Using Waivers and Reductions to MinimizeEffect on SSI or SSDI BeneficiariesThis article is based on a longer policy-to-practice

brief, Overpayments and the Return to Work: APractical Guide for Benefits Planners and Advocates(2009) (Overpayment Brief), http://ilr-edi-r1.ilr.cor-nell.edu/nymakesworkpay/docs/OverpaymentRay09.pdf. Given the brief’s extensive citations to law, regula-tion and policy, we provide very limited citations in thismuch shorter article.

A Social Security Disability Insurance (SSDI) orSupplemental Security Income (SSI) disability benefi-ciary is overpaid when a payment is made that ishigher than the amount to which the recipient is enti-tled. SSI overpayments are most common when theSocial Security Administration (SSA) does not accountfor monthly income or for countable assets that exceedSSI’s $2,000 limit. SSDI overpayments are most com-mon when SSA does not account for earnings thatexceed the substantial gainful activity (SGA) level($1,040 per month in 2013) after a nine-month trialwork period.

This article focuses on work-related overpayments.At Neighborhood Legal Services (NLS), we routinelysee work-related SSI overpayments of $5,000 or moreand SSDI overpayments of $20,000 or more. Recently,an NLS attorney obtained a waiver of SSA’s right tocollect an SSDI overpayment of more than $185,000following an administrative law judge hearing.

A beneficiary who does not respond to an overpay-ment notice faces a reduced SSDI or SSI payment asSSA takes steps to recover the overpaid amount. Byusing the waiver or reduction in repayment requests,covered below, the beneficiary can either eliminate theoverpayment or drastically reduce the reduction totheir monthly payment.

Timely Wage Reporting Can AvoidOverpaymentsOverpayments can be avoided by timely reporting of

wages. If SSA then fails to promptly calculate changesin SSDI or SSI entitlement, the beneficiary may be ableto obtain a waiver of any resulting overpayment (seebelow).

Challenging an Overpayment ThroughReconsideration

SSA’s overpayment notice must identify, amongother things, the overpayment amount, how it wasdetermined, and the right to appeal through “reconsid-eration.” Reconsideration is appropriate if the benefici-ary believes there was no overpayment or that theoverpayment amount is too high. A further discussionof the reconsideration process is beyond the scope ofthis article. See Overpayment Brief, above, for a moredetailed discussion.

SSA Can “Waive” Recovery of anOverpaymentA waiver is requested using form SSA-632-BK,

“Request for Waiver of Overpayment Recovery orChange in Repayment Rate,” available atwww.socialsecurity.gov/online/ssa-632.pdf. For anextensive guide in completing this form, see SeekingWaiver of a Social Security or SSI Overpayment: APractical Guide for Advocates and Beneficiaries,www.ilr.cornell.edu/edi/publications/BenefitsPlanners/BenefitsPlanner_Winter2005.pdf.

A Two-Part Test The SSDI and SSI programs fol-low the same two-part test for granting a waiver. First,the beneficiary must show that he or she was “withoutfault” in causing the overpayment. Second, the benefi-ciary must show one of two things: that recovery wouldcause an undue hardship; or that recovery would beagainst equity and good conscience.

Without Fault is established if the beneficiarytimely reported wages or wage increases; and, if so,had no reason to know that subsequent SSDI or SSIpayments were higher than theyshould have been.

Beneficiaries should report“new income,” upon startingwork or increasing wages, within10 days of receiving a paycheck.Thereafter, they should send SSAwages stubs monthly, unlessinstructed otherwise. If a pay-check is the same each payperiod, SSA is often happy toenter an estimated wage into theircomputer system without theneed for monthly reporting.However, if wages fluctuate, ben-eficiaries should submit monthlypay stubs. SSA is required to issuebeneficiaries a receipt to indicatethat pay stubs have been submit-ted.

Did the beneficiary know orshould they have known thatbenefits were mistakenlypaid? Even with timely report-ing, a beneficiary can be found atfault if SSA determines he or sheknew or should have known that all or part of pay-ments subsequently received were overpayments. Thiscase-by-case determination depends, in part, on thecomplexity of the calculation and whether the benefici-ary understands it.

Many beneficiaries do not understand how wagesaffect SSI payments, with the first $65 or $85 ofmonthly wages, an additional 50 percent of wages, andimpairment-related work expenses (IRWEs) the mostcommon exclusions from countable income, which isthen deducted from an SSI base rate.

It is even less likely that an SSDI beneficiary willunderstand how that system works. Most beneficiaries

do not understand: nine-month trial work periodrules; rules that apply during the subsequent 36-month extended period of eligibility (EPE); rules fordetermining when an individual has performed sub-stantial gainful activity by earning more than $1,040in countable wages in 2013 (with a higher SGA level forthe statutorily blind); how to reduce countable wagesthrough paid time off, IRWEs, and subsidies; whencountable wages are averaged and when not; and thedifferent rules for returning to payment status if wagesdrop below the SGA level. (For a detailed explanationof these rules, see Social Security Disability Insuranceand Work: A Review of SSDI Rules Related to WorkActivity; A Discussion of the SSDI Work IncentivesAvailable to Maximize Independence through Work,

h t t p : / / i l r - e d i -r1.i lr.cornel l .edu/nymakesworkpay/docs/MIG_Newsletter_3.0.pdf .)

It is rare to find a beneficiary whounderstands all of these complex SSI andSSDI rules. The beneficiary’s limitedunderstanding should always beexplained on the waiver form to meet thewithout-fault criteria.

Undue Hardship is established when,after listing all reasonable and necessaryexpenses, the beneficiary has no moneyleft to repay the overpayment. If an indi-vidual currently receives an SSI payment(some receive SSDI and SSI), hardship ispresumed without further analysis. If anSSDI beneficiary receives no SSI, hard-ship is established by completing thosesections of form SSA-632-BK that ask fora listing of income and expenses.

Beneficiaries should use the “ExpenseRemarks” section for expense categoriesnot listed on the form. Categories ofexpenses not on the form include: non-food grocery items; co-payments for

medical appointments or prescriptions; over-the-counter medications; haircuts; and a daily newspaper.The beneficiary should list enough expenses so that thecompleted form reflects their inability to make pay-ments toward the overpayment.

Establishing That Recovery is AgainstEquity and Good Conscience This alternative to the “undue hardship” test is most

frequently established by showing that the beneficiarychanged his or her economic position for the worse,based on the belief of entitlement to the overpaidmoney. This test can be met, for example, by showing

in the public serviceBy James R. Sheldon, Jr.Supervising AttorneyDisability Law Unit Neighborhood Legal Services, Inc.

“At NLS, we see

work-related SSI

overpayments of

$5,000 or more and

SSDI overpayments

of $20,000 or more.”


Obtaining Relief from Social Security and SSI Overpayments


that the person rented a more expensive apartment orwent into debt for new appliances, believing that thehigher or continued payment was correct.

Overpayments of Less than $1,000 – the“Automatic Waiver.” When a waiver is requested andthe total overpayment is $1,000 or less, recovery isordinarily waived “without development” because itwould impede the “efficient administration of the[Social Security] Act.” Social Security ProgramOperations Manual (POMS) GN 02201.013 D (oftencalled the “administrative waiver”). However, if basedon facts “apparent on the face of the waiver or recon-sideration request, [SSA believes] there is an indicationof fault on the part of the overpaid individual,” SSAwill conduct full development of the waiver requestusing form SSA-632-BK. POMS SI 002260.030 C.3

Requesting a Reduced Rate of Recovery Sometimes a waiver is not available because SSA

finds or can be expected to find that the beneficiarywas at fault in causing the overpayment. SSA will typ-ically send a notice explaining that it will recover theoverpayment by withholding a specific dollar amountfrom the monthly payment. With SSI, SSA ordinarilywithholds 10 percent of the monthly payment ($79.70per month if the person is paid at the $797 living alonerate). With SSDI, SSA ordinarily withholds enough torecover the entire overpayment in 36 months (e.g.,$100 per month for a $3,600 overpayment; $1,000per month for a $36,000 overpayment). These recov-ery efforts will occur without regard to the beneficiary’sfinancial hardship unless the beneficiary requests areduction in the rate of repayment.

The beneficiary must complete the same form, SSA-

In Public Service continued from page 11632-BK, to request the reduced recovery rate.Depending only on ability to pay, SSA can reduce therecovery rate to as little as $10 per month. Typically,after submitting the completed form, a face-to-facemeeting will occur during which an SSA employee cannegotiate a lower rate of recovery than appears on theinitial notice. Since this meeting represents the bestopportunity to obtain an affordable repayment rate,the beneficiary should include every reasonableexpense on the form.

One little known SSA policy provides for an auto-matic right to a $10 repayment rate: “If a negoti-ated/requested rate would not permit recovery within36 months but the debtor has a 100 percent MedicarePart D subsidy, grant, without financial development,any request that is at least $10.” POMS GN 02210.030B.6. Medicare Part D is the prescription drug benefitand the 100 percent subsidy covers the typical monthlypremium cost, eliminates doughnut-hole expenses, andlimits copayment costs to a few dollars per prescrip-tion. See www.cms.gov/Medicare/Eligibility-and-Enrollment/LowIncSubMedicarePresCov/index.htmlfor more information on the low-income subsidy.Importantly, individuals who are dually eligible forMedicaid and Medicare are automatically eligible forthe 100 percent subsidy without regard to theirincome.

ConclusionIndividuals who seek more information on this topic

are encouraged to review the resources listed above ormay contact the NLS disability benefits and work hot-line at 1-888-224-3272. [B]

Harvard Law Professor toSpeak on Race Relations

The Canisius College Frank G.Raichle Lecture Series on Law inAmerican Society will welcomeRandall L. Kennedy to theCanisius campus on Tuesday,March 19 at 8:00 p.m. in theGrupp Fireside Lounge. The pro-

gram, “The Idea of Colorblindness in American Lawand Life,” is free and open to the public.

Kennedy is the Michael R. Klein Professor of Law atHarvard University, where he specializes in the inter-section of racial conflict and legal institutions inAmerican life. Kennedy previously served as a law clerkfor Judge J. Skelly Wright of the United States Court ofAppeals and as a law clerk for Justice ThurgoodMarshall of the United States Supreme Court. He is amember of the bar of the District of Columbia and theSupreme Court of the United States.

Kennedy has written five books including “ThePersistence of the Color Line: Racial Politics and theObama Presidency,” “Sellout: The Politics of RacialBetrayal,” “Interracial Intimacies: Sex, Marriage,Identity, and Adoption,” “Nigger: The Strange Careerof a Troublesome Word,” and “Race, Crime, and theLaw,” which won the Robert F. Kennedy Book Award.

Kennedy has contributed to dozens of books, schol-arly journals and general interest publications includ-ing The Harvard Law Review, Time Magazine, TheWall Street Journal, The New York Times and more. Heis the recipient of multiple awards including theDistinguished Alumni Award from the Association ofBlack Princeton Alumni. Kennedy was awarded anhonorary degree by Haverford College and is a formertrustee of Princeton University. A graduate of YaleUniversity Law School and Princeton University, healso attended Balliol College of Oxford University.

The Lecture Series is sponsored by the Frank G.Raichle Pre-Law Center at Canisius College. For moreinformation, contact the Center at 888-2695. [B]

United States Attorney General for Civil Rights. SaveTuesday, April 30th; I know it will be a memorableday.

News from OCA includes mandatory e-filing inSupreme Court in the Eighth Judicial District andseminars offered for you and your staff. The programsare free and will be held on March 7th at 10:00 a.m.and March 19th at 2:00 p.m. in the CeremonialCourtroom at 92 Delaware. See page 1 for more on thisdevelopment that we should all embrace and cannotafford to ignore.

Please also mark your calendars and support veterans

from our community and those from around the countrywho are coming to western New York in late May for the27th National Veterans Golden Games, the onlymulti-event competitive sports program for military vet-erans over 55. More than 700 athletes are expected forthe Games and the BAEC Board of Directors urges youto participate if you qualify. If not, please consider vol-unteering to work at one of the venues.

Last but not least, and in the not too distant future isthe Annual Dinner, in early June, which I wouldn’t evenmention so far in advance, but we do need your nomi-nations for our most prestigious awards. Please take a

President’s Letter continued from page 1



By Jonathan Smithers

If you have read my columns over any length of time,you may wonder if I do anything not legally related,either to my own firm and clients or the Law Society insome form or function. Well, the answer to that ques-tion is not much but I do have one hobby, something soremote from my job that I can leave all thoughts of lawbehind, if only for a short time.

I Googled the phrase “everyone should have ahobby” and came up with a quotation from a newspa-per published in Wilmington, Delaware in October of

1915. The proposition thenby a writer who signed him-self “the country parson”was that some peoplethought of a hobby as a vice.His conclusion was that solong as the interest did notinterfere with the fulfilmentof duties and was a whole-some form of amusementand recreation, it was acommendable thing.

I would like to think thatmy own hobby falls in thatcategory, as it is to singingthat I turn for recreation.

For over 25 years, I havebeen singing in a choir spe-cialising in EnglishCathedrals, providing music

in the English choral tradition when cathedral choirsare on holiday.

Our County of Kent boasts two cathedrals, one inRochester - its origins date back over 900 years - and,rather more famous and even more beautiful,Canterbury Cathedral. Canterbury is the place wherethe first cathedral was established, by Saint Augustine,who arrived in Britain in 597 AD. He was given the

News from Kent, OurSister City in Great BritainEveryone Should Have a Hobby


“Canterbury

is the place

where the first

cathedral was

established,

by Saint

Augustine,

who arrived

in Britain in

597 AD.”

Photo by Jonathan Smithers


local television stations). In Turner, the Supreme Courtidentified three substantial government interests thatoutweighed what it deemed to be the negligible impactof carrying such programming on the existing cableproviders: 1) the preservation of free local broadcasttelevision; 2) the promotion of widespread dissemina-tion of information from multiple sources; and 3) pro-motion of fair competition.

A respected authority, Professor Jonathan Askin ofBrooklyn Law School (and former FCC attorney)recently told BNA that Verizon wants it both ways.

“The company argues, on one hand, that it is aspeaker when it transmits communications across itsnetwork, and therefore [Open Internet/Net Neutrality]rules violate its First Amendment rights,” Askin said.“On the other hand, Verizon argues that it provides aneutral platform that has no controlled content andtherefore is guaranteed the protections of both theCommunications Decency Act of 1996 and the DigitalMillennium Copyright Act of 1998.”

In this context, Verizon is relying on two disparatesections of the U.S. Code. Section 230 of theCommunications Decency Act (47 U.S.C. Section 230)grants a certain degree of immunity from prosecutionfor content created by others. While defamation, priva-cy claims, negligence and other tort claims associatedwith publication are covered by this statute, claims ofcopyright infringement and intellectual property arenot covered.

Section 512 of the Digital Millennium Copyright Act(17 U.S.C. Section 512(c)) places limitations on anentity’s liability for “storage, at the direction of a user,of copyrighted material residing on a system or net-work controlled or operated by or for the serviceprovider…” Is Verizon providing content or deliveryservices or some combination of both? How Verizon’sinternet service offering(s) are regulated is a directfunction of this question.

Currently, a three-judge panel of the U.S. DistrictCourt for the District of Columbia Circuit is contem-plating its next move. If it sides with Verizon, OpenInternet rules will be gone (no doubt after protractedlitigation), and any company that provides access tothe “Information Superhighway” will be able to act asits own traffic cop, allowing some favored contentproviders (read: themselves) to pass and denying oth-ers (read: competitors) access, either at full or limitedspeed. Potentially more devastating is the thought thatif Verizon prevails, it will open the way for any Internetservice provider to challenge any FCC regulation onthe grounds of the First Amendment. And that’s - at thevery least - a lot of work for a lot of lawyers and a baddeal for consumers any way you look at it.

Verizon has made a very interesting and creativeargument. It’s novel to be sure, but the ramifications ifit wins are nothing short of profound. However, bymaking the argument - and conceivably winning on it- Verizon must be prepared to live with the potentiallycostly consequences. To borrow from an ancient“Saturday Night Live” skit, “Dessert topping or floorwax? You decide.” In this case, that decision rests withthe D.C. Circuit. [B]

Lost in Techno Space continued from page 10

Become a fan of your favorite BarAssociation. “Like” us on Facebook, follow

us on Twitter and join our group on LinkedIn.


By Deanne M. Tripi

Attorneys’ deadlines, sched-ules and demands often causethem to inadvertently short-circuit proper procedure andprotocol in many aspects of thepractice of law. This frequently

arises when an attorney has a conflict with ascheduled court date and needs an adjournment.The court usually requires attorneys seekingadjournments to confirm that all Attorneys ofRecord have been contacted in advance about therequest and to explain whether the Attorneys of

Record consent or object to the adjournmentrequest.

When seeking an adjournment and relaying tothe court the result of the contact with theAttorneys of Record, keep in mind that the Rule8.4 of the Rules of Professional Conduct statesthat: “A lawyer or law firm shall not: “(b)engage in illegal conduct that adversely reflectson the lawyer’s honesty, trustworthiness or fitnessas a lawyer; (c) engage in conduct of dishonesty,fraud, deceit or misrepresentation; (d) engage inconduct that is prejudicial to the administrationof justice.”

Supreme Court AdmissionsThe Bar Association of Erie County schedules

annual “in person” admissions to the United StatesSupreme Court Bar. The next excursion to Washington,D.C. is scheduled for Monday, April 22.

Interested applicants must be admitted to practicefor three years, free from any adverse disciplinaryaction, and sponsored by two members of the U.S.Supreme Court Bar. A $200 fee is also required.Dennis J. Bischof coordinates the Admissions Programfor the Bar Association. Contact him at 630-6500 ifyou wish to participate.

WelcomeNew Members

Ryan W. Anderson

Jeffrey T. Bochiechio

Charlene Devorne Cadogan

Erin Caswell

Martha E. Donovan

Daniel F. Dovi

Eric B. Grossman

Myriah V. Jaworski

Taj M. Jiva

Scott R. MacPherson

Matthew J. Makowski

Christopher Moran

Adam Odden

Andrew J. Olek

Chris E. Pashler

Gary M. Phillips

Charles G. Pressley

Nicolas J. Rotsko

Jennifer A. Shah

Henry B. Tilson

It’s great to belong to something this good.

The Bar Association of Erie County is pleased

to welcome the following new members:

Getting an Adjournment: The Ethical Way


COOL RUNNINGS ~ While skiing at Lake Placid recently, a group of BAEC members decided to channel their inner Jamaicanswith a bobsled run, complete with specially ordered costumes. Pictured from left to right are Robert Goldstein, JohnNuchereno, Joseph Terranova, and Mark Worrell. They are the team you can’t believe, mon!

S P E C I A L T H A N K S …

…to the following sponsors for

their support of the

2013 President’s Ball!

Gold

Avalon Document Services

Batavia Legal Printing, Inc.

Counsel Press, LLC

Jack W. Hunt & Associates, Inc.

M & T Bank

Northwestern Mutual

Paramount Settlement Planning, LLC

Silver

Legal Med

Law Firm Sponsors

Brown Chiari, LLP

Gibson, McAskill & Crosby, LLP

Greco Trapp, PLLC

Hodgson Russ LLP

Lewis & Lewis, PC

Lipsitz Green Scime Cambria LLP

Nixon Peabody LLP

Law Office of Timothy M. O’Mara


“You and the Law”Educates Public onLegal IssuesWe appreciate the time that the following

members of our legal community have taken toeducate the public about legal matters by vol-unteering their time to appear on You and theLaw. The program airs every Friday at 5:45p.m. during NPR’s “All Things Considered.”

David R. AdamsNew York State Labor Laws:Construction Site Accidents

Joseph A. MattelianoWhat to Do Before You Are Sued

Peter Allen WeinmannFighting Property Taxes

Denis A. Kitchen, Jr.Consumer Bankruptcy

You and the Law is underwritten by the ErieCounty Bar Foundation and the LawyerReferral and Information Service of the BAEC. If you would like to appear as a guest on the program, please contact Amy Bayerl at852-8687 or by e-mail at [email protected].

Contributions to the Erie County Bar Foundation provide an excellentvehicle for recognizing and honoring members of our profession.Memorial gifts to the Foundation become a lasting tribute to the entirelegal profession, as funds are used exclusively to assist attorneys andpromote understanding of our legal system.

In Memory of Sean Auricchio (Sonof James Auricchio):Thomas C. Farley, Jr.

In Memory of Doris Leader (Wifeof Bennett Leader):Lauren D. Rachlin

In Memory of Marlenne Wolf (Wifeof the Late Hon. Norman J. Wolf, Jr.and Mother or Kristen Wolf):Allan M. Lewis

In Memory of Carl Tronolone:Coleman Volgenau

In Memory of Max Tillman Cohen(Son of Michele A. Brown):Maryann Saccomando FreedmanThomas R. CassanoDeirdre & John Ziegler

In Memory of David Jay:Terry D. Smith

In Recognition of the Servicesand Contributions by James W.Smyton:Kenneth A. Manning

To acknowledge Hon. Janice M.Rosa’s retirement and to thankher for her years of dedicatedservice on the bench:Christine Saturnino

In Celebration of John Napier’sSpecial Birthday:Howard & Candy Vogel Yood

In Memory of Richard B. Danieu(Father of John Danieu andFather-in-Law of Kim Danieu):John Ballow

In Memory of Robert O. Swados:Karen L. Mathews

The Foundation gratefully acknowledges the following contributions:

In Memory of Arthur J. Maloney:James E. Morris

In Memory of Maria T. “Mary”Gryta (Mother of Matt and DouglasGryta):John Ballow

In Memory of James E. Rolls:Karen L. Mathews

In Memory of Helen Sacha (Motherof Mark Sacha):Thomas C. Farley, Jr.

In Memory of Gus Fehrer (Father-in-Law of Bill Lundquist):Lauren D. Rachlin

In Memory of Dorothy Menzie(Mother of Laurie L. Menzies):David R. Pfalzgraf

Foundation Contributions to Benefit Profession

Become a fan of your favorite Bar Association. “Like” us on Facebook, follow us on Twitter and join our group on LinkedIn.


A group of female lawyers have come together for acommon cause – to bring safety and hope to domesticviolence victims in Erie County.

“These passionate and dedicated attorneys havebegun planning a second fundraiser to benefit theFamily Justice Center of Erie County,” according toBuffalo attorney Nadia Shahram, who created theoriginal concept for the gala last year.

The 2013 Raising Hope Gala will take place onFriday, April 19 at the Buffalo Convention Center from5:30-9:30 p.m. Attendees will be “treated to a fun-filledevening that includes a live Argentinean Tango band withprofessional dancers, an Egyptian belly dancer show, afashion show, and a colossal gift basket raffle, a silentauction and more,” according to Shahram. Tickets are$85 per person and $150 per couple.

The Family Justice Center is a nonprofit agency serv-ing victims of domestic violence. All proceeds from theevent will directly benefit the Family Justice Center. TheCenter is a collaboration of 13 agencies that worktogether to create a “one-stop shop” for domestic vio-lence victims. Victims can find all the resources they need- medical, legal, law enforcement, referrals to emergencyhousing, counseling and more - under one roof.

The women working diligently to make this event aneven bigger success this year include – in addition toShahram – Pamela Thibodeau, Ann Arnold and HopeJay. Shahram serves on the board of the Family JusticeCenter and is a strong advocate for women’s rights.Her commitment to the Center and to raising the fundsneeded to maintain its vital services inspired her friendsand colleagues to join her and make her vision a reality.

The Raising Hope gala, which was a “tremendoussuccess its first year, is a unique event with an interna-tional theme that includes fashion, music, dance, food,cocktails, and much more.” More than 350 peopleattended last year’s sold-out gala and were treated towhat Mary Travers Murphy, executive director of theFamily Justice Center, dubbed an “internationalextravaganza.”

“The support for the event was tremendous,”Shahram said, “especially from members of the locallegal community, and the event raised a significantamount of money. But more importantly, it also raisedawareness on the very important and pervasive issue ofdomestic violence.

“When one out of four women and one out of ninemen in our community are affected by domestic vio-lence, it behooves all of us to address the problem,”according to attorney Tiffany Szymanek, who serves asdevelopment director for the Family Justice Center.

Szymanek credited the gala and its organizers for“not only helping us assist domestic violence victims,but also educating the public on how they too can helpbreak the cycle of violence.”

This year’s event was moved to the ConventionCenter to accommodate the many people who wereunable to attend last year’s sold-out event. For ticketsand information about sponsorship opportunities,please contact Pamela Thibodeau at [email protected] or 316-7167.

Call today for tickets or to sponsor this most worth-while cause. [B]

Raising Hope Gala Scheduled for April 19

land by King Ethelbert, having converted him toChristianity. The year after the Norman invasion in1066, the Saxon Cathedral was destroyed by fire andthe new archbishop built a Norman Romanesquecathedral in its place. Perhaps most famously,Archbishop Thomas Becket was murdered in the cathe-dral in 1170 after quarrelling with King Henry II.

The picture on page 13 was taken during the choirpractice prior to a recent evening service in which I tookpart.

The bishop’s chair (in Latin “cathedra”) sits imme-diately behind the high altar. Just behind that is a placewhere the shrine to Thomas Becket stood. It wasdestroyed in 1538 on the orders of King Henry VIII, asBecket was a symbol of Roman Catholicism. Althoughthere is no trace of the shrine itself, the stones sur-rounding it are clearly worn with grooves from theknees of the generations of pilgrims who knelt before it.

The lectern on the far left, in the shape of an eagle,was installed in 1664 (the previous one, again, havingbeen destroyed during the Reformation).

A service has been said (or sung) on the site everyday for some 1,400 years. It is easy to feel the privilegeof continuing that tradition but perhaps important forus all to remember that we are each only a very smallpart of many generations of human endeavour. Historyjudges who plays the greater or the lesser part but dur-ing our lifetime, each of us can at least marvel at thewonders of those who have gone before. In the case ofCanterbury, we can reflect upon those who - startingnearly a thousand years ago - created the most mag-nificent building in our county. [B]

News from Kent, OurSister City in Great Britaincontinued from page 13


By Sunil Bakshi & Joseph A. Leta

It is an all too familiar scenario. Itis late at night, you are at homeenjoying a nice sleep and your phonerings. On the other end of the line isyour obviously shaken client, tellingyou that he/she is in police custodyon a DWI stop and is being asked tosubmit to a chemical test in the formof a Breathalyzer. Out of a sleepyhaze, you quickly gather yourthoughts recognizing that the policeofficer is not going to afford you toomuch time with your client, as aresult of the shrinking window ofopportunity for the police officer toobtain a breath sample and result.

While you can never be 100 percent sure of whether thechoice to refuse or not to refuse is the correct one,knowing a checklist of issues to analyze in considera-tion of statutory and common law is what this articlesets out to accomplish. While not exhaustive, we try topinpoint the various factors a practitioner should “flag”when presented with the dreaded “late night” phonecall.

To assist the practitioner in rendering the advice, onemust understand DWI Law and what one is trying toaccomplish by the decision to refuse or not. While wewill not get into the basis for pre-trial motions andother reasons the charges could be dismissed at orbefore trial, the focus of this article is how you canimprove your client’s chances of having the best resultin a particular scenario. At the onset, it is imperativethat you have knowledge of the DWI laws of the Stateof New York. You should know that both DWI andAggravated DWI are criminal offenses (See McKinney’sN.Y. V.T.L. §§1192(2), (2-a), and (3)) with large finesand surcharges associated with them and lengthy rev-ocations of driving privileges. Also, the sentencingparameters are more stiff with these types of convic-tions. Furthermore, your client will now be forced toinstall a costly ignition interlock device on any car thatthey own, operate or have available in their household.

(See McKinney’s N.Y. V.T.L. §§1193(1)(b)(2), 1198)This device can be ordered for up to one (1) year by thecourt. (Id.) Not only is this costly, but also quite embar-rassing. On the other hand, an impaired conviction(See McKinney’s N.Y. V.T.L.§1192(1)) is not a crime, the finesare much lower, the suspension peri-od is shorter, and the ignition inter-lock device is not mandatory. Theimpaired is also not a predicateoffense for a subsequent DWI arrest.To make the situation more com-plex, with multiple prior alcoholrelated driving convictions, subse-quent relicensure requires height-ened consideration.

Therefore, in order to increase theprobability of avoiding a DWI con-viction, the attorney’s objective is toanalyze your client’s potential BloodAlcohol Level if he or she were tosubmit to a chemical or blood test.Many times a refusal can save aclient who would have a very highreading from a misdemeanor con-viction. The refusal also drasticallydecreases your client’s chances ofincarceration or probation. However,the refusal advice may not be appro-priate in some circumstances whereyour client has had a minimal amount of alcoholthroughout the course of the day or night. It is this“gray” area where the lawyer has the most difficultyrendering the correct advice. We hope that this articlewill provide a discussion of some of the issues thelawyer should consider when faced with “the late nightcall.”

As you all know, there are negative consequencesassociated with refusing a chemical test. I tell myclients to think of the refusal as a separate prosecutionundertaken by DMV which has consequences in addi-tion to any court-imposed sanctions. Refusing theBreathalyzer triggers an administrative hearingthrough the DMV, held shortly after arraignment,where the ultimate issue centers around whether or notone knowingly opted to refuse the Breathalyzer test.(See McKinney’s N.Y. V.T.L. §1194(2)(c)). Should anAdministrative Law Judge find a valid refusal, they canthen revoke your client’s driving privileges for one yearon the first refusal and 18 months on the second

refusal. (See McKinney’s N.Y. V.T.L. §1194(2)(d)(1)).There are also civil penalties in addition to the licenserevocation, which the client would not face if they sub-mitted to a chemical test. (See McKinney’s N.Y. V.T.L.§1194(2)(d)(2)). Furthermore, at arraignment yourclient must surrender their driver’s license, and theywill not qualify for a Hardship License, which theycould have qualified for if they took the test no matterhow high the result. Have your client be prepared with

a ride home from court!! Your clientmay not have a valid driver’s licensefrom the date of arraignment until con-viction. This can be a dire consequenceto your client if he/she needs to drive towork everyday. Finally, there are otherfactors to consider such as the fact thata the negative inference can be drawnby a refusal should the matter proceedto trial.

Lastly, believe it or not, if your clientis acquitted on the underlying DWI, butknowingly refused the Breathalyzertest, he will not qualify for a condition-al license during his revocation fromthe DMV for refusing. While this seemspatently unfair, this is a consequenceyou must be aware of.

Knowing all of the facts and risks ofthe decision to refuse or not to refuse isonly half of the battle. You must nowelicit facts from your client to speculateas to their blood alcohol level, knowingthat your client may have had a fewcocktails, causing you to question the

accuracy of the facts which he or she presents. Takingall of those factors into consideration, there are severalareas of inquiry for the lawyer:

• JURISDICTION: Find out where your client wasstopped. There may be some variance amongjurisdictions as to how DWI matters are ultimate-ly resolved. Some jurisdictions have higherthresholds to allow the impaired after trial, whileothers are more strict.

• FACTS OF THE INSTANT CASE: Find out thegeneral facts and circumstances surrounding thearrest. Can the person tell you why they werepulled over? Was there an accident? If so, wasanyone injured? Was the person asleep at thewheel? Are there any other “aggravating” factorspresent?

• DEMEANOR: Find out the person’s demeanorwith the police officer. Were they being coopera-tive or were they giving the officer a hard time?

To Refuse, or Not to Refuse, That is the Question:Practical Points for the DWI Practitioner

Bakshi

Leta


“There are negative

consequences

associated with refus-

ing a chemical test.

I tell my clients to

think of the refusal as

a separate prosecution

undertaken by DMV

which has conse-

quences in addition

to any court-imposed

sanctions.”


Erie County Bar Foundation438 Main Street, 6th FloorBuffalo, NY 14202

On behalf of the board of directors of the Erie County Bar Foundation, I wish to thank all of the donors for their gen-

erosity in supporting the Foundation’s 2012 Annual Fundraising Campaign. I wish to also thank the men and women

who volunteered their time and effort to the Campaign.

I am pleased to report that this year’s Campaign raised over $174,000 from over 900 donors.

The Foundation and all fellow attorneys that may need our assistance remain deeply grateful for your support.

~ WILLIAM E. LAWSON

CHAIR, CAMPAIGN 2012

Contributions $250 +

ABOTA, Buffalo Chapter

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Allan H. Kaminsky

Daniel Brendan Kane

Kevin M. Kearney

William F. Keenan

J. Michael Kelleher, Jr.

David H. Kernan

Kathryn M. Kirsch

Dan D. Kohane

Matthew L. Kolken

Robert D. Kolken

Robert J. Kresse

Joseph M. LaTona

Stephen R. Lamantia

Hon. John P. Lane

Robert J. Lane, Jr.

William E. Lawson

Francis M. Letro

David S. Lewandowski

Allan M. Lewis

John N. Lipsitz

Richard Lipsitz

Frank L. LoTempio, Jr.

John T. Loss

William J. Love, Jr.

Rocco Lucente, II

Daniel T. Lukasik

James L. Magavern

Philip H. Magner, Jr.

Mark J. Mahoney

Sam Maislin

Anthony D. Mancinelli

Giles P. Manias

Kenneth A. Manning

Hon. Salvatore & Mary Dee

Martoche

William E. Mathias, II

Lawrence J. Mattar

Norman J. Mattar

William K. Mattar

Christopher & Fauzia

Mattingly

John F. Maxwell

Hon. Jeremiah J. McCarthy

Joseph V. McCarthy

Kevin D. McCarthy

Thank You

W. Donn McCarthy

Dennis R. McCoy

Michael P.J. McGorry

William F. McLaughlin

Brian M. Melber

Hon. Ann T. Mikoll

Raymond T. Miles, III

R. Charles Miner

Vincent J. Moore

Gary L. Mucci

James M. Mucklewee

Roy A. Mura

Peter J. Murrett, Jr.

Paul T. Nesper

Paula & Terry Newcomb

Robert B. Nichols

Ilo Nwabugwu Noble

Edward C. Northwood

Debra A. Norton

Anthony M. Nosek

Hon. John & Denise

O'Donnell

Timothy M. O'Mara

Patrick C. O'Reilly

Francis J. Offermann, Jr.

Kenneth A. Olena

Randolph C. Oppenheimer

Sharon Anscombe Osgood

Carl P. Paladino

Jeffery D. Palumbo

Hon. Erin M. Peradotto

Michael F. Perley

Paul I. Perlman

Philip A. Perna

Rodney O. Personius

C a m p a i g n 2 0 1 2

If you were not contacted during our pledge drive, pleaseconsider making a contribu-tion at this time, or at any timeduring the year. Pledges inhonor or memory of friends,family members and col-leagues become a lasting trib-ute to the profession, as fundsare used exclusively to assistattorneys and promote under-standing of our legal system.

Donations to the BarFoundation may be made atany time, either in person at 438 Main St, Sixth Floor,Buffalo, NY 14202, onlinetwww.eriebar.org (via the link to the Erie County BarFoundation “Donate to theFoundation”), or by mailing a check to:

Your gift to the Erie County Bar Foundation reflects proudly on the entire profession…many thanks for your generous support!

“When we give cheerfully and accept gratefully, everyone is blessed.” ~ Maya Angelou


Arcangelo J. Petricca

David R. Pfalzgraf

David R. Pfalzgraf, Jr.

Michael A. Piette

Susan M. Piver

Edward G. Piwowarczyk

Michael A. Ponterio

Gregory A. Pope

Jean C. Powers

Theodore J. Pyrak

Russell T. Quinlan

Robert J. Reden

Lawrence J. Regan

William J. Regan

Kevin A. Ricotta

George E. Riedel, Jr.

Patrick Rimar

Daniel T. Roach

Michael J. Roach

Susan C. Roney

Walter L. Rooth

Hon. Janice M. Rosa &

Raymond J. Stapell

Howard S. Rosenhoch

Roger L. Ross

Richard P. Rosso

Hugh M. Russ, III

Michael J. Ryan

Joseph F. Saeli, Jr.

Nancy W. Saia

Eugene W. Salisbury

Vincent J. Sanchez

K. Michael Sawicki

Barbara & Richard Schaus

Stephen J. Schop

Hon. H. Kenneth Schroeder,

Jr.

Keith B. Schulefand

Karen Gaughan Scott

Thomas F. Segalla

E. Michael Semple

James P. Shea

Richard J. Sherwood

Harvey F. Siegel

Herbert M. Siegel

Myron M. Siegel

Paul Sikora

Hon. Donna M. Siwek &

Timothy G. McEvoy

Hon. William M. Skretny

Terry D. Smith

James W. Smyton

Arnold H. Soeder

Robert B. Sommerstein

Paul K. Stecker

Robert S. Stephenson

David G. Stiller

Douglas P. Stiller

Steven R. Sugarman

Paul Suozzi & Karen Spencer

David L. Sweet

Kevin A. Szanyi

Ronald J. Tanski

Hon. Sharon S. & Bradlee W.

Townsend

Wayne M. Van Vleet

Amy J. Vigneron

Lawrence J. Vilardo

Peter A. Vinolus

Coleman Volgenau

Howard & Candace Vogel

Yood

Matthew X. Wagner, Jr.

James R. Walsh

Brian J. Weidner

Francis P. Weimer

Steven J. Weiss

Steven W. Wells

Brian R. Welsh

Alan S. Wexler

Hon. Gerald J. Whalen

Michael J. Willett

Wayne D. Wisbaum

Thomas S. Wiswall

Frederick A. Wolf

Marilyn Dixon Zahm

Nelson F. Zakia

Joseph E. Zdarsky

Bruce Zeftel & Barbara

Delgross

Arnold N. Zelman

Contributions $100-$249

Richard G. Abbott

John E. Abeel

Kenneth W. Africano

Donald & Rosemary Alessi

David & Joan Alexander

Nicholas P. Amigone, III

Thomas E. Andruschat

Julie P. Apter

Mark S. Aquino

Frederick G. Attea

Philip A. Augustino

Gretchen P. Aylward

Jeffrey F. Baase

Brian D. Baird

Patrick J. Baker

Sunil Bakshi

Noel E. Bartlo

Robert Battista

Scott & Ellen Becker

Thomas W. Bender

Cindy Kaplan Bennes

Elizabeth & Joseph Bergen

Robert Berkun

Katherine J. Bestine

David W. Beyer

Alan B. Block

Richard A. Braden

Charles Patrick Bridge

Craig R. Bucki

Michael C. Burwick

Richard L. Campbell

Edward J. Carland

John J. Carney

Jerome D. Carrel

Patricia I. Carrington

Thomas J. Casey

Donna M. Castiglione

Joe R. Cavan

Daniel T. Cavarello

Anna Marie Cellino

Anthony Cervi

William Chen

Daniel J. Chiacchia

William D. Christ

Robert M. Ciesielski

Paul J. Cieslik

Samuel J. Civiletto

Peter D. Clark

Sanford L. Clark

Kenneth Cohen

Jeremy A. Colby

Richard H. Cole

James J. Contino

Michael G. Cooper

Michael J. Cooper

George L. Cownie

Catherine Creighton

Hon. John M. Curran

Christopher D. D'Amato

Victoria L. D'Angelo

Anthony J. DeMarie

Joseph DeMarie

Paul Gordon Dell

Mark P. Della Posta

Thomas A. Deuschle

Richard F. DiGiacomo

Sheila Sullivan Dickinson

Daniel H. Dillon

Hon. Kevin M. Dillon

James P. Domagalski

James D. Donathen

John W. Dorn

Joseph J. Dotterweich

Anne F. Downey

Brian W. Downey

Deborah A. Doxey

John R. Drexelius, Jr.

Gary R. Ebersole

Roger J. Edel

Susan J. Egloff

Robert M. Elardo

Anne C. Evans

Leo T. Fabrizi

Randy Fahs

Thomas C. Farley, Jr.

Victor N. Farley

Mark G. Farrell

Helen Ferraro-Zaffram

Louis C. Fessard

Robert A. Fiordaliso

Hon. Joseph A. Fiorella

Andrew P. Fleming

Ryon & Eileen Fleming

Roman J. Fontana

Lawrence C. Franco

Robert W. Frangooles

Howard B. Frank

Bernard B. Freedman

Wayne I. Freid

Mrs. Fay Friedman

Kenneth P. Friedman

Thomas Gaffney

Jodyann Galvin

Jerry A. Gambino

Eugene M. Gaughan

Warren B. Gelman

Carmen J. Gentile

Herman J. Ginsburg

Horace A. Gioia

E. Joseph Giroux, Jr.

Eric L. Glazer

Neil A. Goldberg

Brian A. Goldstein

Bruce A. Goldstein

Richard H. Gordon

Gerald P. Gorman

Jerome C. Gorski

Timothy J. Graber

James F. Granville

James R. Grasso

Leslie Mark Greenbaum

Alvin M. Greene

Christopher T. Greene

Robert Michael Greene

Richard A. Grimm, Jr.

Robert W. Grimm, Jr.

Gordon R. Gross

John J. Gruber

David E. Hall

Robert B. Hallborg, Jr.

Douglas P. Hamberger

Thomas J. Hanifin

William D. Harrington

Donna L. Haslinger

Donna Hassinger

Susan J. Hauck

Christopher A. Head

Robert P. Heary

Daniel J. Henry, Jr.

Matthew B. Herdzik, Jr.

Ann Giardina Hess

George & Sally Hezel

Terrence P. Higgins

Hollis M. Hite

Marilyn A. Hochfield

Benjamin J. Hoey

Bruce W. Hoover

John Gilbert Horn

Jeffrey A. Human

Paul V. Hurley

Adolph C. Iannaccone

Bruce A. Ikefugi

Michael J. Ingham

Paul K. Isaac

Robert I. Jadd

Edward P. Jesella, Jr.

Kathleen P. Johnson

Paul F. Jones

John A. Joseph, III

Hon. Norman E. Joslin

Anne E. Joynt

Richard S. Juda, Jr.

James B. Kane, Jr.

Linda L. Kaumeyer

Thomas J. Keable

Frank S. Kedzielawa

Christopher C. Kerr

Mary Ann Killeen Ast

James J. Kirisits

Denis A. Kitchen, Jr.

David W. Kloss

Robert E. Knoer

John T. Kolaga

Peter M Kooshoian, Sr.

Lindy Korn

Gary F. Kotaska

Karl W. Kristoff

Joel R. Kurtzhalts

John J. LaFalce

Courtland R. LaVallee

Diane M. LaVallee

David C. Laub

John J. Lavin

Richard J. Lehner

Marilyn E. Lew

Brian N. Lewandowski

Andrew A. Ligammari

Brendan H. Little

Sally B. Logan

Michael J. Lombardo

William A. Long, Jr.

Ryan J. Lucinski

Leo M. Lynett, Jr.

William J. Magavern, II

Patrick J. Maloney

Jeffrey C. Mannillo

Robert L. Marinelli

Jeffrey P. Markello

Frederic J. Marrano

Hon. Frederick J. Marshall

Charles C. Martorana

Joseph A. Matteliano

Karen M. McCafferty

Susan M. McClaren

Maureen A. McCready

Lisa McDougall

Thomas I. McElvein, Jr.

Diane J. McMahon

David J. McNamara

Andrew D. Merrick

Hon. Joseph D. Mintz

Joseph B. Mistrett

Robert A. Moeller

Albert J. Mogavero

John J. Molloy

Mark A. Montour

Carl W. Morgan

James E. Morris

Paul Morrison-Taylor

Michael O. Morse

Lynn A. Murphy

Margaret A. Murphy

James I. Myers

Catherine E. Nagel

Nathan S. Neill

Mark S. Nemeth

F. Harris Nichols

Paul Notaro

Kathleen V. O'Brien

Eugene P. O'Connor

Sara N. Ogden

David W. Olson

Thomas Arthur Palmer

Patricia Ann Pancoe

Gerald E. Paradise, III

Michelle Parker

Frank R. Parlato

James A. Partacz

Michael Paskowitz

Rev. Dorothy Burton

Pearman

Mark J. Peszko

Gregory P. Photiadis

Hon. Michael Pietruszka

Paul M. Pochepan

Richard C. Pohlman

Steven H. Polowitz

Michael J. Poretta

Stephen F. Pusatier

Roderick Quebral

Lawlor F. Quinlan, III

David C. Quinn

Lauren D. Rachlin

Michael H. Ranzenhofer

Karen Richardson

Barbara R. Ridall

Michael A. Riehler

William L. Rieth

Thomas M. Rizzo

Kate Roach & Kevin Hogan

Molly Roach & Scott Miller

John P. Robshaw, Jr.

Hon. Lisa Bloch Rodwin

Sharyn G. Rogers

Jay N. Rosenthal

Paul E. Rudnicki

R. Anthony Rupp, III

Arthur A. Russ, Jr.

Mark E. Saltarelli

Melinda R. Saran

Christine Saturnino

Barbara A. Sauer

Antonio Savaglio

William & Elizabeth Savino

Michael F. Scalise

Alan P. Schaefer

Michael Schiavone

Barbara L. Schifeling

John H. Schlegel

John G. Schmidt, Jr.

James N. Schmit

Daniel L. Schoenborn

Duane D. Schoonmaker

Robert J. Schreck

Claudia S. Schultz

James D. Schultz, Jr.

Paul J. Schulz

Frank A. Sedita, Jr.

Jeffrey C. Sendziak

Judith Abbott Shanley

Samuel L. Shapiro

Joseph H. Shaw, Jr.

John A. Sheehan

Paul J. Smaldone

Craig Z. Small

Edward J. Snyder

Vincent J. Sorrentino

Dennis J. Speller

Gary M. Sterman

Barry H. Sternberg

Richard T. Sullivan

John B. Surgalla

Kathleen M. Sweet

Joseph J. Terranova

John C. Thompson

Richard & Susan Bring Tobe

Melissa A. Tocha

Nelson S. Torre

William J. Trask, Sr.

John L. Trigilio

Deanne M. Tripi

Frederick D. Turner

Dimitri J. Tzetzo

Vicky L. Valvo

Jeanne M. Vinal

Dale M. Volker

James M. Wadsworth

Jo Ann M. Wahl

Hon. Timothy J. Walker

Raymond W. Walter

Thank You



Dennis E. Ward

Thomas E. Webb

Neil Weinberg

Paul D. Weiss

David D. White

Justin S. White

Sharon L. Wick

William P. Wiles

Ann C. Williams

Ronald Willig

Ronald J. Winter

Daniel E. Wisniewski

Michael G. Wolfgang

Laurence H. Woodward

Stephen L. Yonaty

Oliver C. Young

Gregory C. Yungbluth

Benjamin M. Zuffranieri, Jr.

Contributions $1-$99

Anthony D. Abbarno

Jerome D. Adner

Mark Arcara

Daniel R. Archilla

Brian F. Attea

Richard J. Attea

Joseph M. Augustine

Dianne Avery

Sharon Prise Azurin

Hon. Tracey A. Bannister

Rebecca H. Baritot

Raymond H. Barr

Daniel E. Barry, Jr.

Edwin T. Bean, Jr.

Holly Adams Beecher

Mary B. Beimler

Margot S. Bennett

Susan A. Benz

William W. Berry

Robert L. Besanceney

Rosemary Gavigan Bis

George Russell Blair, Jr.

Brian J. Bocketti

Eric T. Boron

David V.L. Bradley

Karla Braun-Kolbe

Stephen P. Brooks

Marc W. Brown

Wesley M. Brown

David Buch

Jessica J. Burgasser

R. Thomas Burgasser

William K. Buscaglia, Jr.

Bernardine M. Butler

Margaret C. Callanan

Earl K. Cantwell, II

Marco Cercone

Ralph Cessario

Philip S. Chamot

Diane K. Church

Ronald M. Cinelli

Lynn A. Clarke

David J. Colligan

Cornelius F. Collins

John A. Collins

Joseph A. Collins

Thomas V. Considine

Tara N. Karch Cross

William H. Daetsch

Richard J. Day

James DeMatteo

Julie Ann Dee

Phillip A. Delmont

Andrew Diakun

Jennifer M. Dillon

Richard B. Dopkins

Joshua E. Dubs

Matthew J. Duggan

Carleen A. Dunne

Thadeus J. Dziekonski, Jr.

Peter J. Eisenhauer

John B. Elliott

David P. Evans

James S. Fanning

Jennifer S. Farrell

Timmon M. Favaro

Wendy K. Fechter

William M. Feigenbaum

Kathleen T. Feroleto

David K. Floyd

Gabrielle Foley

Donald N. Fries

Thomas J. Gaffney

Christopher D. Galasso

Michael J. Gallagher

Giovanni Genovese

Arthur J. Giacalone

Terrence M. Gilbride

Howard F. Gondree

James N. Gormley

Nicole Graci

Jean Graziani Greinert

Mark John Grisanti

Frederick R. Gugino

Joseph J. Gumkowski

Harold M. Halpern

Ralph L. Halpern

Vincent O. Hanley

Elbert Hargesheimer, III

Kevin A. Harris

Renee E. Heitger

Amy L. Hemenway

Carolyn M. Henry

David G. Henry

Arthur A. Herdzik

Judy Sager Hernandez

Mary Jo Herrscher

Jonathan S. Hickey

Andrew C. Hilton, III

Kathleen A. Hojnacki

Kathleen E. Horohoe

Hon. Barbara Howe

Edwin P. Hunter

Giuseppe A. Ippolito

David V. Jaworski

William P. Johnson

Todd M. Joseph

Daniel P. Joyce

Gary M. Kanaley

Eileen Katz

William Patrick Keefer

Joseph A. Kelemen

Robert E. Keller

Peter G. Klein

Christian G. Koelbl, III

Eleanor T. Kubiniec

Sandra Kucharski

Paul W. Kullman

Anne K. Kyzmir

Frederick M. Lang

J. Michael Lennon

J. Michael Lennon, II

Robert E. Levi

Alan H. Levine

Larry & Judy Lewis

Robert M. Lippman

Thomas R. Lochner

Tim C. Loftis

Leonard G. London

Robert D. Lonski

John W. Looney

Colleen Rogers Losi

Kathleen Ann Lynch

Lance J. Madden

William D. Maldovan

John T. Maloney

Michael V. Maloney

Scott D. Marchant

Edward J. Markarian

Karen L. Mathews

William H. Mattrey

Alan P. McCracken

Athena McCrory

Virginia C. McEldowney

C. Daniel McGillicuddy

Philip H. McIntyre

Kathleen E. McMahon-Stoll

Aileen M. McNamara

Harry G. Meyer

Lisa P. Meyers

Terence W. Miller

Ryan Mills

David C. Mineo

Francine E. Modica

Jane Mogavero

Elaina Marie Monte

William C. Moran

James M. Morrissey

John A. Mosychuk

John Mueller

Peter J. Murrett, III

David Nelson

Thomas W. Nelson

Jon Allon Nichols

Christopher & Melissa

Nickson

Deborah E. Nicosia

Bridget M. O'Connell

Kathleen E. O'Hara

Randall & Rita Odza

Kelley A. Omel

Laurence B. Oppenheimer

Edward A. Pace

Thomas Allan Palmer

Hon. Catherine Nugent

Panepinto

John A. Pappano

James S. Parker

Frank J. Parlato

Lucian C. Parlato

John Y. Pax

Paul D. Pearson

Mark S. Perla

Russell J. Pieri

Wallace C. Piotrowski

Mark C. Poloncarz

Pritchard & Kennedy

Seth D. Pullen

Michael Pysz

Radack & Hartnett

Joseph M. Ralabate

Sarah K. Ranni

Bonnie A. Redder

Cheryl M. Reed

Christopher K. Reed

Michael E. Reilly

Carla R. Reynolds

Anna Marie Richmond

Jay W. Ricketts

Amy Habib Rittling

Lawrence M. Ross

John K. Rottaris

Arthur J. Rumizen

Daniel E. Sarzynski

Jennifer R. Scharf

Jonathan D. Schechter

Geralyn A. Schiffler

William C. Schoellkopf

Thomas E. Schofield

Lawrence R. Schwach

Blaine S. Schwartz

Sharon J. Schwartz

Edward J. Schwendler, Jr.

Deborah J. Scinta

Raymond H. Seitz

Kathleen M. Sellers

Thomas G. Sellers

Taylan K. Sen

Michael R. Shannon

Nancy J. Sheehan

Daniel D. Shonn, Jr.

David K. Silverberg

Stephen R. Silverstein

Mark G. Spelman

Jeffrey A. Spencer

Charles S. Spinner

Linda Lalli Stark

Thomas A. Steffan

Jeffrey W. Stone

Jeffrey C. Stravino

Milton J. Strebel

Donna Hoelscher Suchan

Anthony J. Tantillo

Diane R. Tiveron

David P. Todaro

Elizabeth M. Tommaney

W. Clark Trow

Thomas V. Troy

Jason G. Ulatowski

Cynthia E. Vance

Thomas J. Vaughan

Mary E. Virginia

Judith L. Voit

Alan D. Voos

Norman F. Walawender

Christopher A. Walker

Mark R. Walling

Sara Wallitt

John B. Walsh

Ruthanne Wannop

Thomas M. Ward

Michael A. Wargula

Mark W. Warren

Jeffrey Weiss

Eileen M. Wheeler

Christopher C. Willett

Nicholas H. Willett

Therese Rahill Wincott

Ruth R. Wiseman

J. Michael Wolf

Tracy Sendor Woodrow

Richard D. Yellen

Leonard D. Zaccagnino

George Michael

Zimmermann


BECOME A SPONSOR!

Counselors, Jurists, tireless protectors of justice, come knock down some pins in our 14th Annual BowlingTournament at the Thruway Lanes in Cheektowaga. Bring your creativity and join your colleagues in cel-ebrating one of Buffalo’s finest traditions for a memorable evening of food, drinks, raffles, contests, and ofcourse, competitive sport. The outrageous group costumes and ribald team names are sure to be the talkof the watercooler for several weeks following.

For over 15 years, Lawyers for Learning has been fortunate to work with this great legal community inour efforts to positively impact the lives of hundreds of children from Buffalo Public School 18. Thanks yourongoing generosity, we have provided weekly one on one tutoring, sponsored students to attend YMCA’sCamp Weona, coordinated field trips and provided crucial support in the provision of school uniforms,workbooks and scientific calculators. Our past endowments to the students of School 18 total over$50,000. We continue to explore and develop additional ways to support the school and expand our pro-gram to positively impact the West Side community.

Please join us for this fun and worthwhile event. We look forward to seeing you there.

Platinum Sponsor - $1,000 Benefits of sponsorship- recognized as premier sponsor

at the event in announcements and signage - recognized as premier sponsor by publication

in Bar Bulletin- entitled to send up to three teams of five bowlers

to the event

Gold Sponsor - $500 Benefits of sponsorship- recognized at the event in announcements

and signage- recognized by publication in Bar Bulletin- entitled to send up to two teams of five

bowlers to the event

Silver Sponsor - $250 - recognized at the event in announcements

and signage - recognized by publication in Bar Bulletin- entitled to send one team of five bowlers

to the event

Bronze Sponsor - $100 - recognized at the event in announcements

and signage - recognized by publication in Bar Bulletin

Team of Five - $150

Spectators - $20

14th Annual Bowling TournamentMay 9, 2013 6:00 p.m.

Checks should be made payable to LFL,Inc. All donations are tax deductible.Donations can be sent directly to ourBowling Tournament Committee c/oGarvey & Garvey, 416 Pearl St., Buffalo,New York 14202. If you have any ques-tions or need any further information,please do not hesitate to contact MattGarvey at 854-4800, or by email [email protected].

LAWYERS FOR LEARNING BOWLING TOURNAMENT!

Domestic abuse doesn’t discriminate. Ithappens within all age ranges, ethnicbackgrounds, and financial levels. If it hap-pens once, it will happen again. The abusemay occur during a relationship, while acouple is breaking up, or after a relation-ship has ended.

Despite what many people believe,domestic violence is not due to anabuser’s temporary loss of control over hisor her behavior. In fact, violence is a delib-erate choice made by the abuser in orderto take control of a spouse or partner.

Look What You Made Me Do! In spiteof the abuser’s efforts to “blame the vic-tim,” domestic violence is NEVER yourfault. If you or a loved one are suffering,help is just a phone call away. Please call852-1777 in complete confidence today tobe referred to a colleague who can help.

Don’t Suffer in Silence.Let Us Help You Find Your Voice.

Domestic Violence

is NEVER Okay.


Scott D. Miller has joined Wilder& Linneball, LLP as special counsel.He formerly served as deputy gener-al counsel at HSBC North AmericanHoldings Inc. for 27 years. A gradu-ate of SUNY Buffalo Law School,Miller is a past president and directorof the Niagara Frontier CorporateCounsel Association. He will focus his

legal practice at Wilder & Linneball on commercial lit-igation, human resource law, risk management andlegal audits.

Molly A. Sleiman and Brian J.Bogner have joined LoTempio &Brown P.C. A graduate of the SUNYBuffalo Law School, Sleiman willconcentrate her practice on residen-tial and commercial real estate, wills,trusts and estate planning and fami-ly and divorce law. Bogner is a cumlaude graduate of SUNY BuffaloLaw School. He will represent plain-tiffs and defendants in personalinjury claims arising out of medicalmalpractice, motor vehicle liability,municipal liability, premises liability,products liability and constructionaccidents.

David J. Luzon and Thomas E.Popek have been elected partners ofPhillips Lytle LLP. Luzon focuses onestate and trust planning and admin-istration, estate and gift taxation andelder law including Medicaid plan-ning and guardianship. A summacum laude graduate of MedailleCollege, he holds M.B.A. and J.D.degrees from SUNY at Buffalo.Luzon is a member of the EstateAnalysts of WNY and the NationalAcademy of Elder Law Attorneys.

A partner in the Buffalo andCanada offices, Popek focuses ondomestic and international develop-ment, acquisition, protection and

commercialization of intellectual property. He is a reg-istered patent attorney with the United States Patentand Trademark Office and a registered Foreign LegalConsultant in Ontario. A recipient of the American BarAssociation and Bureau of National Affairs Award forExcellence in the Study of Intellectual Property Law,Popek received his B.S., M.Eng., and J.D., from SUNY

at Buffalo.

Dan D. Kohane, a senior memberof Hurwitz & Fine, P.C., has receivedthe John E. Leach Memorial Award from the Torts InsuranceCompensation Law (TICL) Sectionof the New York State BarAssociation. The award, presented atthe group’s annual dinner in New

York, recognizes “outstanding service and distinguishedcontributions to the legal profession.” Kohane conductstraining, consultation and seminars on insurance-relat-ed issues. He previously received the TICL’s first YoungLawyers’ Award after 10 years of practice.

Michael B. Powers, a partnerwith Phillips Lytle LLP, has receivedthe FBI Agents Association Characterand Service Alumni Award recogniz-ing “exemplary service as a memberof the Buffalo FBI,” along with hisacademic and legal careers, serviceas Clarence Town Justice, and beingnamed the “2013 Clarence Citizen of

the Year.” Powers was also cited for memorializing the52 victims of Flight 3407 with a monument/park at thecrash site. A graduate of St. Bonaventure University,Powers received his M.A. from Niagara University andhis J.D., summa cum laude, from Western NewEngland University School of Law.

Edward J. Murphy, III hasjoined Magavern Magavern GrimmLLP as a partner. He has more than25 years of trial experience repre-senting both plaintiffs and defen-dants in personal injury and businesslitigation matters, as well as handlingcommercial and residential realestate actions and litigation. Murphy

is Village Attorney for the Village of Hamburg and theVillage of Farnham. A graduate of Hamilton College, hereceived his J.D. from SUNY at Buffalo Law School.Murphy is a member of the New York State BarAssociation, New York State Trial Lawyers Associationand American Trial Lawyers Association.

John G. Schmidt Jr., a partnerwith Phillips Lytle LLP, recentlyjoined the Upstate New YorkTransplant Services (“UNYTS”)Donate Life Foundation board ofdirectors. The group works toincrease organ, eye, tissue, and blooddonations and awareness. He focuseshis practice on business litigation

and related matters. He holds a B.F.A. from N.Y.U. anda J.D. from Rutgers School of Law. [B]

Miller

Sleiman

Luzon

Popek

Bogner

Kohane

Powers

Murphy

Schmidt

Bench and Bar continued from page 3

His or her demeanor and attitude will factor intothe decision for a possible plea or trial. Also, gaugeyour client’s speech pattern. Can you understandhim or her or is their speech slurred?

• AMOUNT CONSUMED: Tell your client thathonesty is imperative for this question. Ask thepolice officer if you could have a private call withyour client and find out how much the person wasdrinking. If privacy is not possible, (as may be thecase for some police agencies) you must explain tothe person that they can not say they were drink-ing alcohol while the officer is listening. Phrasethese questions for yes/no responses. Even a num-ber blurted out can be inferred by the officers thatthe person consumed that number of drinks.Make sure to find out over what time period theperson was drinking. Also, what type of alcoholwas being consumed. Finally, determine when theperson had their last drink. If the last drink wasseveral hours ago, their blood alcohol level maybe going down, as opposed to someone who tookseveral shots right before being pulled over.

• CHARACTERITICS OF DEFENDANT: If youhave not physically observed your client before,find out some factors about their body weight andsize. In our experience a smaller woman will blowhigher than larger man with the same amount ofalcohol ingested. Furthermore, find out if yourclient is over the age of 21 or not. This could havea drastic effect on their relicensing.

• PRIOR RECORD: Find out if your client has hadany prior DWI convictions. If your client was con-victed of an alcohol related driving offense withinthe past five years (measured as of the date ofcompletion of the Drinking Driver Program(DDP) after the first offense to the date of the newviolation for subsequent DDP participation), theywill not qualify for any limited license until aftertheir revocation period is up.

• ENGAGE THE POLICE OFFICER: In our expe-rience we like to see if the officer will get on thephone with us and discuss the case. The officercan give you a more accurate picture of what isreally going on. Furthermore, the officer cansometimes offer you some valuable information asto whether or not the client passed any field sobri-ety tests and what the result was on theAlcosensor, the road side field sobriety test. As acaveat though, the Alcosensor is not indicative ofactual Blood Alcohol content. In our experiencewe have found the Alcosensor result to be .02-.03points lower than the actual test. However, wehave noticed scenarios where the Alcosensor wasmuch lower than the actual chemical test. Wecaution the reader who relies on the Alcosensor toguesstimate the Blood Alcohol result.

Ultimately, keep in mind that all of these questionswill only help you better speculate as to what the endresult will be. This list is not exhaustive, and I am cer-tain that many practitioners could add additional con-siderations. Your ultimate responsibility is to notifyyour client of the risks associated with refusing or notrefusing (albeit when they are possibly under the influ-ence of alcohol). This requires the lawyer to act swiftlytaking into consideration a myriad of factors includingthe lawyer’s own “gut” feeling. [B]

To Refuse, or Not toRefuse, That is theQuestion continued from page 19


The Department of Veterans Affairs has selected VAWestern New York Healthcare System to host the 2013National Veterans Golden Age Games from May 30 -June 4.

The Golden Age Games are the “premier senioradaptive rehabilitative program in the United States,and the only national seniors program designed toimprove the quality of life for all senior veterans,including those with a wide range of abilities and dis-abilities,” according to a statement.

“The Games provide a multi-event sports and ther-apeutic recreation program for military veterans 55years of age and older who receive care through any VAmedical facility,” according to local attorney MarkFrancis, who is coordinating donations and sponsor-ships.

Last year’s Games attracted 787 veterans. The 2013Games will also be a qualifying event for the 2014Senior Olympics. Throughout the week, “men andwomen who have worn the uniform of the UnitedStates of America and defended our country with honorand dignity will compete,” Francis said.

BAEC members can become part of this event byserving as a volunteer or becoming an individual orcorporate sponsor. Corporate and/or individual spon-sorships are available and financial and in-kind dona-tions are also needed and will be acknowledged at thecommensurate sponsorship level.

“Our nation’s veterans have placed our security andfreedom before their own lives,” Francis continued.“Their sacrifices create a debt that America can neverfully repay. Your generous gift will demonstrate ourappreciation and help make the 2013 Games a memo-rable experience for all involved.”

For further information about volunteer or sponsor-ship opportunities, please contact Mark Francis at 862-8667 or Kelly Clark-Roberts at 862-8672. Additionaldetails and continuous updates are available atwww.veteransgoldenagegames.va.gov. [B]

National Veterans GoldenAge Games Coming to WNY

Are You An Attorney Struggling With Depression? If so, you’re definitely not alone. A recent Johns Hopkins study of 108occupations found that lawyers topped the list of those who sufferedfrom depression. Attorneys were found to suffer from depression at a rateof four times that of the general population.

Depression is a treatable illness and the right combination of medica-tions and therapies can significantly improve the quality of life for thosewho suffer from it.

Help and support are just a phone call away. The Lawyers withDepression Support Group meets on a weekly basis to share stories andfellowship. The group meets every Friday (except holidays). See the calen-dar on page 28 for meeting dates, times and locations.

If you or a colleague are struggling with depression, there is noneed to suffer in silence. For further information, visitwww.lawyerswithdepression.com or contact Daniel T. Lukasik at847-1010. All calls are strictly confidential. We invite you to join usand share your story.

few minutes to let us know who you think deservesrecognition.

And now, if you are still reading . . .“Cowboy SkillsBar Leaders Need:”

“You might not think cowboys and bar leaders havemuch in common. However, beneath the surface, youfind a parallel skill set as useful out on the range as inboard meetings - skills that call upon confidence,adaptability and character. These traits that definecowboys are shared by successful bar leaders and youwill learn how in this session. Cowboy boots notrequired…”

Couldn’t make this up. Off to Dallas I go!

Hope to see you at the Ball, the hockey game, theLaw Day Luncheon or all of the above this spring. [B]

President’s Letter continued from page 12


erie institute of lawProviding continuing legal education for your Professional advantage

PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax andLeadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.

Date/Time/Location Topic CLE Credits Price

Wednesday, March 6, 2013 Defending Police Officers and Municipalities Against 1.0 credit $20 members1:00 p.m. – 2:00 p.m. Civil Rights Claims $25 non-membersAdelbert Moot CLE Center (Noonday Lecture presented by the Municipal & School Law Committee)438 Main St.Buffalo, NY

Thursday, March 7, 2013 Securities Arbitration 1.0 credit $20 members1:00 p.m. – 2:00 p.m. (Noonday Lecture) $25 non-membersAdelbert Moot CLE Center 438 Main St. Buffalo, NY

Friday, March 8, 2013 The Patient Protection and Affordable Care Act: What You Need 4.0 credits Live Seminar:9:00 a.m. – 1:00 p.m. to Know About the Law and the Supreme Court’s Decision $80 membersHyatt Regency Buffalo (Live Seminar) $110 non-membersTwo Fountain Plaza Also available via live streaming WebcastBuffalo, NY Registration must be received in advance of the seminar Webcast:

$100 members$130 non-members

Wednesday, March 13, 2013 Where the Bones Are Buried in Structured Settlement Transactions 1.0 credit $40 members1:00 p.m. – 3:00 p.m.* (Noonday Lecture) $50 non-membersAdelbert Moot CLE Center *Please note extended time438 Main St.Buffalo, NY

Thursday, March 14, 2013 An Ethical Year in Review 1.0 credit $20 members1:00 p.m. – 2:00 p.m. (Noonday Lecture) $25 non-membersAdelbert Moot CLE Center 438 Main St.Buffalo, NY

Wednesday, March 20, 2013 Death, Divorce and Digital Assets 1.5 credits $25 members1:00 p.m. – 2:30 p.m.* (Noonday Lecture presented by the Intellectual Property $30 non-membersAdelbert Moot CLE Center and P&P in Surrogate’s Court Committees)438 Main St. *Please note extended timeBuffalo, NY

Saturday, March 23, 2013 23rd Annual Real Estate Conference 6.0 credits Live Seminar:8:30 a.m. – 2:30 p.m. (Live Seminar presented by the Real Property Law Committee) $100 membersBuffalo/Niagara Marriott Also available via live streaming Webcast $130 non-members1340 Millersport Highway Registration must be received in advance of the seminar. Amherst, NY Special thanks to our sponsors: Webcast:

$120 members$150 non-members

Monday, March 26, 2013 Jimmo v. Sibelius: An Overview of the Class Action Settlement 1.0 credit $20 members*12:00 p.m. – 1:00 p.m. and its Impact on Access to Medicare Coverage for Nursing Home $25 non-membersAdelbert Moot CLE Center Residents and CHHA Home Care Recipients438 Main St. (Noonday Lecture presented by the Elder Law Committee)Buffalo, NY *Please note time, which differs from regularly scheduled noonday lectures

✃

Erie Institute of Law Registration Form

Please register me for the following Erie Institute of Law sponsored events:

1._______________________________________________________________________________________________

2._______________________________________________________________________________________________

3._______________________________________________________________________________________________

Name:__________________________________________________________________________________________

Firm:____________________________________________________________________________________________

Street Address:__________________________________________________________________________________

City: _______________________________________________State: ______________________Zip:_____________

Phone: _____________________________________________E-mail:______________________________________

Enclosed is my check in the amount $_______________ [ ] Check enclosed

Charge my: [ ] Visa [ ] MasterCard

Card Number:____________________________________________________ Exp. Date:____________________

Cardholder Signature:____________________________________________________________________________

Cancellation Policy: If you are unable to attend a seminar for which you have already registered, call Mary Kohlbacherat 852-8687 ext.115. For a full refund, notice of your cancellation must be received before the date of the program.Registrants who are pre-registered and fail to attend will receive course materials in lieu of a refund. Mail or Fax to:Erie Institute of Law, 438 Main St., Sixth Floor, Buffalo, New York 14202, (716) 852-8687, Fax (716) 852-7641.

Check our calendar for updates and added programming at www.eriebar.org

Members of the CLE Advisory Committee: Pictured from left toright are Brian R. Welsh, Robert E. Knoer, Howard B. Frank andHugh M. Russ, III.

SAVE THE DATE

Have You Ever Wondered?• Were the Assizes of Clarendon and NorthHampton innovativejurisprudencial measures or simply a monarchical grab for cash?

• Could the wearing of Red Rubber Clown Noses ever be requiredby statute?

• If you ever wondered about the answers to these and otherdeep questions, you should attend:

BRIEF HISTORY OF WESTERN JURISPRUDENCEFriday, April 19, 2013Bar Association of Erie County438 Main St., Sixth Floor, Buffalo, NY 142024.5 CLE Credits: 4.0 Areas of Professional Practice, 0.5 SkillsSpeaker:Wesley M. Brown, Esq. | Law Office of Wesley M. Brown

Registration Price TBD, watch your mail for a brochure andthis page next month!

March 2013 | www.eriebar.org

in today’s competitive, fast-paced legal environment, effective time management is essential. take advantage of the

erie institute of law tape library and start earning your cle credits when the time is convenient for you.

the erie institute of law is now offering our most recent cle seminars on cd, cassette tape and dvd.

all of our seminars are professionally edited and are accompanied by a full set of written course materials.

among our most recent selections:

listen, learn & earn!

Significant Bankruptcy Decisions in the Western District of New YorkProduct Code 2206

Presented on December 1, 2012

3.0 CLE credits: 3.0 Areas of Professional Practice

Available on CD Only

$100 BAEC Members, $150 Non-Members

In this seminar, you will hear from some of the

preeminent bankruptcy experts in western New York,

including the judges who decide the cases. The program

covers many of the most important issues ruled upon

by the court.

The cases are presented by an attorney panel, followed

by commentary from the deciding judges. This program

is invaluable to any attorney who practices in the areas

of bankruptcy law, secured transactions, real estate and

business planning.

Tax and Finance As It Touches OurNorthern Border Immigration ClientsProduct Code 2207

Presented on Wednesday, January 16, 2013

1.5 CLE credits: 1.5 Areas of Professional Practice

Available on DVD Only


This seminar will enable you to:

• Enhance your law or accounting practice and

flag tax issues.

• Work with an accountant and banker to make

international transfers work.

• Discover surprising financial tools available,

including financing, lockbox, mortgage

availability for non-immigrants, and cross-border

distribution of bank accounts.

How to Be a More Effective Law Firm LeaderProduct Code 2204

Presented on October 23, 2012

2.0 CLE Credits: 2.0 Law Practice Management

Available on CD Only


This fast-paced, interactive session will examine the

important role of the managing partner and other

firm leaders to initiate change, build consensus and

focus attention on long-term strategic goals and

objectives. Drawing on survey data collected among

700 managing partners over the past 10 years,

John Remsen of the Remsen Group presents what

managing partners do and how they do it. A panel

of seasoned managing partners – Krista Gottlieb of

Mattar, D’Agostino & Gottlieb, Peter S. Marlette of

Damon Morey, and Hugh M. Russ, III of Hodgson

Russ – lend their thoughts and perspectives as well.

Most importantly, the program provides practical

guidance on how to build a more profitable,

cohesive and sustainable law firm.

Asylee and Refugee BorderDevelopmentsProduct Code 2205

Presented on November 21, 2012

1.0 CLE Credit: 1.0 Areas of Professional

Practice

Available on DVD Only


Michael E. Marszalkowski and Jennifer L. Rizzo

explain how to represent refugees in immigration

court. You will learn how to handle an asylum case

from start to finish. Special issues for Northern

border lawyers and developments in Canada that

affect our refugees will be explained as well.

• Answer first questions from foreign guests,

i.e. income, payroll, and estate tax.

• Choose a cross-border corporate

organizational structure.

• Select the right visa, as this choice can

change everything.

• Acquire knowledge to advise clients about

expatriation. Abandoning dual citizenship can

trigger severe immigration and tax sanctions.

• Advise clients as to the tax liability of a

previously unseen claim to dual citizenship.

• Be aware of northern border opportunities

and pitfalls.

Presenters include: Canada/U.S. Accountant

Specialist Brent Soucie, CA Manager, U.S. and

Expatriate Tax, BDO Canada; Canada/U.S. Accountant

Specialist Jason Ubeika, CA, CPA (Illinois),

Associate, U.S. Tax, BDO Canada; Vice President,

Relationship Manager, Penny Beckwith,

Canada/USA Cross Border Banking, HSBC, Buffalo;

American Immigration Lawyers Association Chapter

Vice Chair, Joseph C. Grasmick.

To order, please send check payable to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202

Be sure to include your name and address for mailing purposes;add $5 shipping and handling for each tape purchased. Tapesare mailed via UPS, no P.O. boxes please. To order by phoneusing your Visa or MasterCard, call Amy Bayerl at 852-8687.

For a complete listing of taped CLE programs, visit our Website at www.eriebar.org and click on the Continuing LegalEducation link or call Amy Bayerl at 852-8687.

Accreditation for viewing a CLE tape is handled on anindividual basis. Each lawyer must pay the requisite fee,fulfill the requirements for accreditation, and acquireand retain his or her own certificates of completed continuing legal education activity.

However, as a service to our members who wishto participate in group or sequential viewing ofCLE tapes, the Erie Institute of Law offers the following alternative: One member in the groupmay purchase the audio tape of their choice, paying the listed price; all other members in theviewing group who wish to receive accreditationfor viewing the tape will receive a $30 discount.One set of audiotapes will be mailed along withcourse materials for each participant.

In order to administer CLE credit, the names of all participating attorneys must be given at the time ofpurchase. No more than five people per tape allowed.

The Buddy System applies to programs costing$110 and up.

The Buddy SystemFor CLE Audio Tapes

Name: _____________________________________________________________________________________________

Each additional participant:

2. __________________________________________________ 3. _____________________________________________

4. __________________________________________________ 5. _____________________________________________

Shipping Address (No P.O. boxes please, due to UPS shipping):

Firm:_______________________________________________________________________________________________

Street Address: _____________________________________________________________________________________

City: _______________________________________________State: ______________________Zip:________________

Phone: _____________________________________________E-mail: _________________________________________

All tapes will include course materials. Please indicate the audio tape/CD/Video(s) product code of your choice: ______________________________________________

Total amount enclosed (Please add $5 per tape for shipping): $ ___________________________________________

[ ] Check enclosed Charge my: [ ] Visa [ ] MasterCard

Credit Card #:____________________________________________________________________Exp. Date:__________

Name (as it appears on card): ___________________________________________________________________________

Signature:___________________________________________________________________________________________

Mail form to: The Erie Institute of Law • 438 Main Street, Sixth Floor • Buffalo, NY 14202

Buddy System Registration Form

The best educated bar

NEW CATALOG AVA I LABLE NOW!


FRIDAY 1Commercial & Bankruptcy LawCommittee 12:15 p.m. – Daniel E. Sarzynski, Chair

Committee to Assist Lawyers with Depression12:30 p.m. – Daniel T. Lukasik, Chair

April Bulletin Deadline

MONDAY 4Professional Ethics Committee 12:15 p.m. – Howard B. Cohen, Chair

WEDNESDAY 6Negligence Committee12:15 p.m. – 12th FloorKathleen M. Reilly, Chair

FRIDAY 8Committee for the Disabled 12:15 p.m. – Lynn M. Kwon-Dzikiy, Chair

Committee to Assist Lawyers with Depression12:30 p.m. – Brennan RoomDaniel T. Lukasik, Chair

Federal Practice Committee12:15 p.m. - Adelbert Moot CLE CenterTimothy W. Hoover, Chair

TUESDAY 12Board of Directors8:00 a.m. – Kathleen M. Sweet,President

Real Property Law Committee12:15 p.m. – Adelbert Moot CLE CenterMichael J. Lombardo, Chair

Labor Law Committee12:15 p.m. – Heather A. Giambra, Chair

FRIDAY 15Young Lawyers Committee12:15 p.m. – Elizabeth M. Midgley, Chair

Committee to Assist Lawyers with Depression12:30 p.m. – Daniel T. Lukasik, Chair

TUESDAY 19Matrimonial & Family Law Committee12:15 p.m. - 25 Delaware Ave, 5th Floor

Catherine E. Nagel, Chair

Criminal Law Committee12:15 p.m. – Old Surrogate CourtCourtroom1st Floor of 92 Franklin Street.John R. Nuchereno, Chair

Corporation Law Committee12:15 p.m. - Offices of Hodgson RussDavid M. Stark, Co-Chair

WEDNESDAY 20Erie County Bar Foundation8:00 a.m. – Roger L. Ross, President

Appellate Practice Committee12:15 p.m. – Bar Center, Brennan RoomTimothy P. Murphy, Chair

Unlawful Practice of Law Committee12:15 p.m. – Marc Shatkin, Chair

THURSDAY 21Committee on Veterans’ & Servicemembers’ Legal Issues12:15 p.m. – Bar Center, Brennan RoomJoseph D. Morath, Co-ChairDavid J. State, Co-Chair

Environmental Law Committee12:15 p.m. – John T. Kolaga, Chair

FRIDAY 22Committee to Assist Lawyers with Depression12:30 p.m. – Bar Center, Board RoomDaniel T. Lukasik, Chair

MONDAY 25Alternative Dispute ResolutionCommittee12:15 p.m. – Steven R. Sugarman, Chair

TUESDAY 26Board of Directors8:00 a.m. – Kathleen M. Sweet,President

Elder Law Committee12:15 p.m. – Adelbert Moot CLE CenterJillian E. Brevorka, Chair

WEDNESDAY 27Human Rights Committee12:15 p.m. – Sophie Feal, Chair

P&P in Family Court Committee 12:15 p.m. – Family Court Building

THURSDAY 28Solo & Small Firm Practice Committee12:30 p.m. – Bar Center, Brennan RoomJennifer P. Stergion, Chair

FRIDAY 29Committee to Assist Lawyers withDepression12:30 p.m. - Bar Center, Board RoomDaniel T. Lukasik, Chair

MARCH 2013

www.eriebar.org

AFTER HOURS – Our intrepid photographer (a/k/a paparazzi) Glenn Murray has been stalkinglocal lawyers to record their unique extracurricular activities. Murrray recently captured BAECmember Nelson Torre and his band, Nelson & the Heaters, above, rocking the Allen StreetHardware Cafe.

Save the Datefor the 2013

LAW DAYLUNCHEON

TUESDAY, APRIL 30AT 12 NOON

STATLER TOWERS

Keynote speaker is Buffalo native and CanisiusHigh School graduate,

Thomas E. Perez,Assistant United States

Attorney General for CivilRights. Watch your mail

and this space for further details.

need photo

ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted. The Adelbert Moot CLE Center is also locatedat 438 Main Street, Sixth Floor. MEETINGS SUBJECT TO CHANGE, PLEASE SEE WEB SITE FOR UPDATES.

PRSRT STD U.S. Postage Paid Permit No. 416 BULLETIN land, Buffalo’s own native son and Canisius...

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Transcript of PRSRT STD U.S. Postage Paid Permit No. 416 BULLETIN land, Buffalo’s own native son and Canisius...