The J of n CounTy Bar assoCiaTion March 2016 … · Hon. Elaine Jackson Stack ... Sabino Page 20...

The Journal of The nassau CounTy Bar assoCiaTion

March 2016 www.nassaubar.org Vol. 65, No. 7

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OF NOTENCBA Member Benefit - I.D. Card PhotoObtain your photo for Secure Pass Court ID cards at NCBA Tech Center Only For New ApplicantsCost $10 • April 5, 6 & 79 a.m. – 4 p.m.PLEASE NOTE: Existing Secure Pass hold-ers do not need new photos and can now renew online at the OCA website www.nycourts.gov/attorneys/registration/secure-pass.shtml

NCBA COMMITTEE MEETING CALENDARPage 22

EVENTSWE CAREDressed to a TeaWednesday, March 16, 2016 5:00 p.m. at DomusSOLD OUT!

NASSAU ACADEMY OF LAWHon. Elaine Jackson StackMOOT COURT COMPETITIONTuesday & WednesdayMarch 22 & 23, 2016 at DomusDetails pg 14

LAW DAYTuesday, May 3, 20165:30 p.m.Details pg. 6

117TH ANNUAL DINNER DANCESaturday, May 14, 2016Long Island Marriott, UniondaleSee page 6Invitations mailed in MarchFor Journal Ad Information see INSERT

WhaT’S INSIdEFOCUS: Elder Law/Trusts & EstatesVeterans Aid and Attendance Benefits: The Risks from Proposed Regulations Page 3

So You Think You Can Decant? Page 5

The King of Hearts: EPTL § 5-3.1’s Exempt Family Set-Off Page 6

The Sandoval Decision: Needed Relief for Medicaid Applicants Who Have Transferred Assets Page 7

Revoking an Irrevocable Medicaid Asset Protection Trust Page 8

GENERALTax Department’s Authority to Conduct Regulatory Inspections and the Fourth Amendment 0

One Size Does Not Fit All – Ten Reasons Why Commercial Litigators Should Consider Commercial Mediation Page 11

BOOK REVIEW Rogue Lawyer by John Grisham Reviewed by Prof. Anthony Michael Sabino Page 20

UPCOMING PUBLICATIONS COMMITTEE MEETINGSThursday, March 10, 2016 12:45 at Domus

Thursday, April 14, 2016 12:45 at Domus

CONFIDENTIAL HELP IS AVAILABLE TO LAWYERS AND JUDGES

alcohol or drug use, depression or other mental health problems

Call Lawyer Assistance Program1-888-408-6222

Canvas and Wine

Breaking Bread with the Bench

For NCBA MembersNotice of

Nassau County Bar AssociationAnnual Meeting

May 10, 2016 = 7 p.m.Domus

Proxy statement can be found on the insert in this issue of the Nassau

Lawyer. In addition to the election of Nassau County Bar Association officers, directors, Nominating

Committee members and Nassau Academy of Law officers,

amendments to the Nassau County Bar Association

By-Laws will be voted upon.

A complete set of the By-Laws, including the proposed amendments, can be found on the Nassau County

Bar Association website at www.nassaubar.org. Copies are

available at the reception desk at the home of the Association or by mail

upon request.

Richard D. Collins Secretary

By Adam D’Antonio

Discover your inner Rembrandt on the evening of Thursday, April 14, 2016 at 6:30p.m. when a professional artist guides us in creating masterpieces on canvas. NO ARTISTIC EXPERIENCE REQUIRED!

Adult paint nights are the new craze and we’ve managed to line up one of the best artists in town. Even the least artis-tic will be amazed at what can be created with a paintbrush in one hand and a wine glass in the other. All you need to bring is your enthusiasm! We’ll supply the rest including a 16” x 20” canvas, easel, apron and supplies to create a moonlit skyline suitable for hanging in your home or office. Refreshments, including wraps, music and other surprises will round out this casual and fun-filled evening.

Tickets are only $35 per person, but seating is limited, so reserve your easel now. A portion of each ticket will sup-port the Steven J. Eisman Memorial

Building Fund. Canvas and

Wine follows on the heels of NCBA’s wild-ly successful O k t o b e r f e s t and is sure to be another hit with mem-bers and their guests. Don’t miss out on having your firm featured as an event

sponsor, too. Contact Valerie Zurblis for sponsorship details at (516)747-4070 x204.

For more information and to purchase tickets for Canvas and Wine, please contact Special Events (516)747-4070 x226, [email protected] or register on-line at www.nassaubar.org.

During the first luncheon between new lawyers and members of the Judiciary, NCBA President Martha Krisel asked District Court Judge, Hon. Andrew M. Engel, and all invited Judges, to speak to the lawyers on a variety of topics including practicing law, exploring other practice areas and becoming involved in the Bar Association. (Photo by Hector Herrera)

Moonlit Skyline

By Andrea M. Brodie and Jennifer L. Koo

One of the initiatives promulgated by President Steven J. Eisman was the cre-ation of a task force to help foster con-nections between new lawyers (admit-ted less than 10 years) and the more active members of the Nassau County Bar Association, particularly the judi-ciary. This task force, now known as the Steven J. Eisman New Lawyer/Judiciary Relations Task Force, is co-chaired by the Hon. Jeffrey S. Goodstein of the Nassau County Supreme Court and Andrea M. Brodie, Esq. of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP.

One of the programs created by the Task Force is a monthly lunch between new lawyers and members of the judi-ciary. The Task Force and the New Lawyers Committee held its first lunch at Domus with Justices of the Nassau County District and Supreme Courts on

Channel Your Creativity at the Bar

See BENCH, Page 9

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Nassau Lawyer n March 2016 n 3

Elder Law/ Trusts & EstatesVeterans Aid and Attendance Benefits: The Risks from Proposed Regulations

The Veterans Aid and Attendance Pension Benefit provides a financial stipend for veterans and their surviv-ing spouses who require the regular aid of another person to assist them

with their activ-ities of daily liv-ing. In addition to certain service requirements, the veteran or spouse must prove that he spends most or all of his monthly income on med-ical expenses, which current-ly may include the full cost of an assisted liv-ing facility. The

veteran, the surviving spouse (or the veteran and spouse) currently can-not have more than $80,000 in total assets. Veterans and/or their spouses can transfer their assets to bring them below the $80,000 asset limit without penalty. However, that may be about to

change.The Department of Veterans Affairs

(“VA”) proposes, via Proposed Rule AO73, to amend the regulations gov-erning Aid and Attendance benefits. Pursuant to the United States Code (the “Code”), 38 USC § 501, the VA has authority to prescribe regulations necessary for administration of its pro-grams. Sections 1522 and 1543 of the Code direct the VA to “deny, reduce, or discontinue the payment of pension when it is reasonable that a claimant consume some portion of his or her net worth for his or her maintenance.” However, there is currently no defi-nition as to what is “reasonable.” In addition, the VA cites 38 USC § 1503(a)(8), as it authorizes the VA to deduct unreimbursed medical expenses from a pension claimant’s countable income. Again, there is currently no definition of “medical expenses.” The proposed rulemaking aims to provide such defi-nitions.

The proposed regulations will have a drastic effect on a veteran’s and/or spouse’s ability to access this import-

ant and valuable pension benefit. The following are the most notable of the proposed amendments:

Net Worth (Proposed § 3.274)Currently, the net worth limit is

$80,000, although this is presently an unwritten rule. The proposed reg-ulations would make the net worth limit $119,220, the same as the Medicaid Community Spouse Resource Allowance. Unlike the Medicaid rules, however, the veteran’s/spouse’s annual income will be added to their net worth.

Primary Residence (Proposed § 3.275)

The primary residence will continue to be excluded as a countable asset unless and until the property is sold. Once the property is sold, the proceeds will be added to the veteran’s/spouse’s net worth unless the funds are used to purchase another property. The pro-posed regulations provide that the res-idential lot area cannot exceed two (2) acres unless the additional acreage is not marketable, an impact which will likely be felt more acutely in rural areas of the country.

Medical Expenses (Proposed § 3.278)

Currently, the cost of assisted living and the cost of in-home attendants are deducted in full from monthly income when calculating income eligibility for Aid and Attendance benefits. The pro-posed regulations would provide that,

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4 n March 2016 n Nassau Lawyer

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

Publisher Graphic ArtistScott Schoen Ryan O’Shea

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

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

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

Nassau LawyerNassau Lawyer

NCBA OfficersPresidentMartha Krisel, Esq.Vice PresidentSteven G. Leventhal, Esq.TreasurerElena Karabatos, Esq.SecretaryRichard D. Collins, Esq.Executive DirectorKeith J. Soressi, Esq.

Editor-in-ChiefChristopher J. DelliCarpini, Esq.Associate EditorsRhoda Y. Andors, Esq. Anthony J. Fasano, Jr., Esq.ProofreaderAllison C. Shields, Esq.Editor/Production ManagerSheryl Palley-EngelAssistant EditorValerie ZurblisPhotographerHector Herrera

March Editorial StaffElder Law/Trusts & EstatesDeborah S. Barcham, Esq. Focus EditorRhoda Y. Andors, Esq. Ellin Regis Cowie, Esq.Stephen Donaldson, Esq.Anthony J. Fasano, Jr., Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.David Torreblanca, Esq.

Upcoming Focus IssuesApril 2016OCAMay 2016Matrimonial Law/Family Law/ AdoptionJune 2016Health Care

Committee MembersChristopher J. DelliCarpini, Esq., ChairRhoda Y. Andors, Esq., Co-Vice ChairAnthony J. Fasano, Jr., Esq., Co-Vice ChairDeborah S. Barcham, Esq.Gale D. Berg, Esq.Sean E. Campbell, Esq.Deanne Marie Caputo, Esq.Ellin Regis Cowie, Esq.Marc G. DeSantis, Esq.Stephen Donaldson, Esq.David J. Friedman, Esq.Nancy E. Gianakos, Esq.Michael R. Gionesi, Esq.Robert S. Grossman, Esq.Sharon Kovacs Gruer, Esq.Adrienne Flipse Hausch, Esq.Kristina S. Heuser, Esq.Charles E. Holster III, Esq.Arielle S. Howe, Esq.Anthony F. Iovino, Esq.George M. Kaplan, Esq.Kenneth J. Landau, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Dennis M. Lyons, Esq.Cheryl Y. Mallis, Esq.Angelica Marie McKessy, Esq.Thomas McKevitt, Esq.Daniel McLane, Esq.Jeff H. Morgenstern, Esq.Marian C. Rice, Esq.Daniel W. Russo, Esq.Rayne M. Sassower, Esq.Michael A.H. Schoenberg, Esq.Meryl D. Serotta, Esq.Thomas G. Sherwood, EsqAllison C. Shields, Esq. Christina H. Singh, Esq.Andrij V.R. Szul, Esq.David Torreblanca, Esq.Eric Anthony Zeni, Esq.

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

I love serving as President of the NCBA, in particular because I am always up for meeting new people. A great way to do this is by accepting as many invitations as pos-sible to the different ceremonies and programs to which the NCBA President is traditionally included and at which the President is often asked to speak. In January, I had the honor of speaking at two judicial induction ceremonies, and in February, I was included in the pro-gram of the annual Nassau County Courts Black History Committee and the Amistad Long Island Bar Association celebration. I enjoy public speaking and I love to listen to what everyone else has to say, although sometimes I do feel that I am one of a very few who listens to Director of Community Relations Dan Bagnuola’s instructions about time limitations!

For the Black History Month program, I identified three bar leaders and their “firsts.” I included Dennis Archer, a former justice of the Michigan Supreme Court and a former mayor of Detroit. In 2003, Archer became the first African American president of the American Bar Association. Until 1943, the ABA had excluded African American lawyers from its membership.

I also included Fred Gray, who handled a number of key cases in the Civil Rights Movement and defended Rosa Parks and Claudette Colvin against charges of dis-orderly conduct for refusing to give up their seats during the Montgomery Bus Boycott. Mr. Gray was also instru-mental in successfully seeking justice for the victims of the Tuskegee Syphilis Study, a clinical experiment conducted for forty years to study the natural progres-sion of untreated syphilis in African American men who were tricked into believing that they were receiving free health care. Fred Gray was the first African American president of the Alabama State Bar.

Last, I included the Hon. Jane Bolin, who died in 2007 at age 99, and was the first African American woman to become a judge in the U.S. when she was sworn in to the bench of the New York City Domestic Relations Court in 1939. As a family court judge, Hon. Bolin ended the placement of children in child-care agencies on the basis of ethnic background. She was not only also the first African American woman to graduate from Yale Law School but was also the first African American woman to join the New York City Bar Association.

Here at the NCBA, the Executive Committee is focus-ing on a combination of substantive and administrative discussions about the mission of the NCBA, including the specific mission of the Steven J. Eisman Memorial Building Fund, and about the best practices for the administration of the NCBA as a small not-for-profit with multi-faceted goals. Here is the mission statement for the Steven J. Eisman Memorial Building Fund:

The mission of the Steven J. Eisman Memorial Building Fund is to secure tax deductible contributions to the Nassau Bar Foundation for the exclusive use of the protection and improvement of the structural and aes-thetic integrity of the Nassau County Bar Association’s headquarters.

The Board of Directors has been increasingly engaged in these objectives and in the April President’s letter, I will be announcing a series of initiatives in which all members of the NCBA can participate to ensure that the NCBA is the best that it can be.

On a personal note, as a member of Yashar, I applied for and received permission to be admitted to practice at the United States Supreme Court. My daughter Nina joined me and the entire experience can only be described as awesome. The ceremony took place on February 22, the first day the Supreme Court convened after Justice Scalia’s death. Justice Roberts briefly reflected upon his colleague’s contributions before moving into two incredibly interesting arguments on government contracting, and on the pros and cons of a significant deviation from the 4th Amendment and the Supreme Court’s earlier decisions on

“Terry” stops. I currently work with government contract-ing in disaster relief, and I wrote criminal appeals early in my career for New York City’s Legal Aid Society. Listening to the attorneys, who appeared to be extremely young for such huge responsibilities, enhanced my appreciation of the range and beauty of our profession and reinforced my belief in how much experienced practitioners can learn from newer members of our profession.

As always, please email me at [email protected] with ideas or questions. In particular, please contribute to my bar association “firsts” and we’ll put together a Nassau Lawyer column from time to time with this history.

Lessons Learned Past, Present and Future

Listening to the attorneys, who appeared to be extremely young for such huge responsibilities, enhanced my appreciation of the range and beauty of our profession and reinforced my belief in how much experienced practitioners can learn from newer members of our profession.

From the President

Martha Krisel

Open The Door For New Business! Join Lawyer Referral Service

Apply Online at nassaubar.org Or Contact Pat Carbonaro 516-747-4070

Supreme Court Swearing In, February 22, 2016


Elder Law/ Trusts & Estates

So You Think You Can Decant?Trusts are frequently drafted to last

for generations based on assumptions that may not reflect future reality, and every practitioner has come across a trust whose terms fail to take into

account the cur-rent laws or ben-eficiaries. New York’s decanting statute, Estates, Powers and Trusts Law § 10-6.6 (first enacted in 1992), provides trustees with the flexibility to address these intractable real-ities by making changes to an oth-erwise irrevocable trust document.

Simply put, decanting is a modification of a trust initiated by a trustee.

The reasons to decant include expanding a trustee’s decision making authority, creating a step-up in basis for trust assets, expanding the trust’s term or reducing a beneficiary’s distribution rights to enable the beneficiary to qual-ify for Medicaid. The current decanting statute in New York makes it clear that decanting is an available tool in a trust-ee’s arsenal, but when and how to utilize that tool becomes the difficult hurdle. Does the trustee have any fiduciary obli-gations when contemplating a decant-ing? What can be left out, or added, or what must remain the same in any trust

decanting? And what, if any, are the tax implications when the trustee decants by moving trust assets from one trust to a new trust with different terms?

It is essential to consider the effect a decanting has on the receiving trust’s attributes. The fundamental elements of decanting require a trustee to consider whether the current law and/or benefi-ciaries would cause the grantor to alter the original trust agreement. Therefore, notwithstanding the liberal decanting statute in New York, the statute still imposes upon a trustee a duty of loyalty and a fiduciary duty to be prudent. The duty of loyalty specifically requires that a trustee who chooses to decant must be exercising this power in the best inter-ests of one or more of the beneficiaries of the old “invaded” trust.1 And this duty of loyalty must be exercised in the same manner as a prudent person would act, under similar circumstances, i.e., rea-sonably, competently and in good faith.2 Decanting for purely administrative pur-poses should not raise concerns, but decanting that shifts beneficial interest may implicate the duty of loyalty. It is important to always remember that trustees cannot act arbitrarily.

A trustee with absolute discretion can invade part, or all, of the principal of the old “invaded” trust. The trustee of the invaded trust can then appoint such principal to the trustee of the newly cre-ated “receiving” trust for one, more than one, or all, of the current beneficiaries and the successor and remainder ben-

eficiaries of the receiving trust can be one, more than one, or all, of the current successor and remainder beneficiaries.3 In addition, a trustee with absolute dis-cretion can grant a discretionary power of appointment to one or more of the current beneficiaries in the receiving trust if such beneficiary could receive principal outright under the terms of the invaded trust.4

However, if the invaded trust already granted a power of appointment, then the receiving trust may also grant a power of appointment as long as the receiving trust provides for the same class of permitted appointees and pro-vides that it is exercisable in the same manner (i.e., the invaded trust provided for a testamentary power of appoint-ment which expressly referenced the trust and therefore, the receiving trust, if it includes a power of appointment, must similarly provide).5 Finally, a trustee with unlimited discretion, if the beneficiaries of the invaded trust are described as a class, may provide in the receiving trust that the beneficiaries of the receiving trust include present or future members of the class.6

When the trustee of the invaded trust does not have unlimited discretion then the current beneficiaries of the receiving trust must be the same as the current beneficiaries of the invaded trust, the successor and remainder beneficiaries of the receiving trust must be the same as the invaded trust, and the receiving trust must have the same language as to

distributing income and principal.7 However, in the event that the receiv-

ing trust’s term is extended for a peri-od greater than the invaded trust, the trustee may be given unlimited dis-cretion to invade principal during that extended period.8 In addition, if the ben-eficiary or beneficiaries of the invaded trust are described as a class, then the receiving trust must include present or future members of that class.9 Finally, if the invaded trust granted a power of appointment to a beneficiary, then the receiving trust must grant the power of appointment and the class of permissi-ble appointees must be the same as the invaded trust.10

When a trustee exercises his or her authority under EPTL § 1906.6, it must be in writing, stating whether the power of appointment encompasses all of the principal or a part and if it is only a part, it must state the “approximate per-centage of the value of the principal of the invaded trust” that is subject to the decanting.11 The trustee must sign, date and have the acknowledgment of decant-ing notarized.12 A copy of this signed and notarized document, accompanied by a complete copy of the invaded trust and a complete copy of the receiving trust must be delivered to the creator of the invaded trust, if he or she is then living, to any individual having the right, pur-suant to the terms of the invaded trust, to remove or replace the trustee exer-

Moira A. Jabir

See DECANT, Page 17


We take pride in honoring the NCBA members who are celebrating their

50, 60 and 70 year anniversary of admission to the Bar.

2016 Distinguished Service Medallion Recipient

Senator John R. DunneWhiteman Osterman & Hanna, LLP

Former U. S. Assistant General for Civil RightsFormer Deputy Majority Leader for the NY State Senate

NCBA Past President

Join us on Saturday, May 14, 2016 at the

117th Annual Dinner DanceLong Island MarriottUniondale, New York

Invitations Mailed in March

To take an ad in the

Dinner Dance Journal See the insert in this paper or contact Special Events

(516)747-4070 or [email protected]

Law Day 2016

Law Day CelebrationTuesday, May 3s 5:30 p.m.

Nassau County Bar Association

$55 pp Cocktails and Awards Dinner

Presenting the

Liberty Bell Award Peter T. Affatato Court Employee of the Year Award

Thomas Maligno Pro Bono Attorney of the Year Award

For information and reservations contact Caryle Katz(516)747-4070 x211 or [email protected]

The King of Hearts - EPTL § 5-3.1’s

Exempt Family Set-OffEPTL § 5-3.1, which allows for the

set-off and exemption of certain items of personal property from the estate of a New York domiciliary for the benefit of such decedent’s surviving spouse or children, provides not only a poten-

tial life-line to a decedent’s family members but is also a very pow-erful tool when negotiating with estate creditors.

P r o t e c t i o n for a Decedent’s Family

A quick exam-ination of EPTL § 5-3.1 and the leg-islative amend-ments thereto leave no doubt

that the main thrust of this statutory provision is to ensure that a decedent’s “surviving spouse” or “children under the age of twenty-one” are left with personal property and cash sufficient to sustain themselves for the short-term after the decedent’s passing.1

While our friends and colleagues living in the rural parts of Eastern Long Island and Upstate New York may find the portions of the statue which provide for a set-off of the decedent’s farm animals and machin-ery of particular importance to their clients2, the vast majority of our cli-ents in Nassau County will find a greater peace of mind in knowing that the statue also provides for a set-off for household items and jewelry not exceeding $20,000,3 books and computer equipment not exceeding $2,500,4 the decedent’s car or truck not exceeding $25,000 in value5 and an outright set-off of $25,000 of the decedent’s cash or other money.6

Protection from Estate Creditor Claims

While the above noted items of per-sonal property and cash are, no doubt, “reasonably required for the support of the surviving spouse or children . . . of the decedent during the settlement of the estate,”7 in providing that such items of property “are not assets of the estate [of the decedent] but vest in, and shall be set off to such surviving spouse . . . . [or if] there is no surviving spouse . . . to the decedent’s children under the age of twenty-one years”8 the legis-lature also ensured that these items of personal property were exempted from the claims of estate creditors.9

That these items of exempt proper-ty are protected from creditor claims is rather significant for, if a deceased person owned all of the items of set-off provided for in EPTL § 5-3.1, the surviving spouse or surviving children of the decedent could inherit either up to $92,500 in a combination of exempt personal property and cash or $92,500 in cash alone, if the decedent’s sur-viving spouse or surviving children are willing to use EPTL § 5-3.1(a)(5) and EPTL § 5-3.1(b) as a sword in creditor negotions,10 without having

to answer to estate creditors for such items/cash.11

For decedent’s passing away owning a modest amount of property, the abil-ity of the decedent’s surviving spouse or children to inherit up to $92,500 in exempt personal property and/or cash provides a significant benefit, especial-ly if the decedent was a spendthrift and owed substantial sums to creditors. In fact, the sole responsibility of a sur-viving spouse or surviving child of a decedent who died possessed of only the items enumerated in EPTL § 5-3.1, and in an amount not exceeding the statutory thresholds provided there-fore, is simply to tell estate creditors to “take a hike,” as these creditors can-not assert a valid claim against such exempt assets.

A Tool in Creditor NegotiationsFor decedents with more significant

assets, EPTL § 5-3.1 not only pro-vides the estate creditor protection out-lined above, but also provides for more gamesmanship and “horse trading” on the part of surviving spouses, surviving children and estate fiduciaries in deal-ing with estate creditors. Of particular interest in this regard are EPTL § § 5-3.1(a)(4), 5-3.1(a)(5) and 5-3.1(b).12

EPTL § 5-3.1(a)(4) allows the surviv-ing spouse or children of the decedent to acquire certain household items, jew-elry and other miscellaneous property of the decedent in excess of the statu-tory thresholds provided for in EPTL § 5-3.1(a)(1), (a)(2) and (a)(3); however, if such election is made, the surviving spouse or child must reimburse the estate, by payment to the Executor or Administrator of the estate, “the amount by which the value of the items acquired exceeds the amounts set forth in such subparagraph.”13

As matter of practice, unless the decedent is known to have a household item, such as a painting or other work of art, of particularly significant value, appraisals are not usually obtained for household items. Adding to the prob-lem of appropriately assigning a value to items enumerated in EPTL § 5-3.1(a)(1), (a)(2) and (a)(3) is that the precise legal ownership of household items may be unknown. These two great unknowns, along with a creditor’s lack of knowledge and disinterest in obtain-ing an exact valuation of a decedent’s household items, will usually result in all such household items, jewelry and other miscellaneous property being passed to the surviving spouse or child under the guise of EPTL § 5-3.1(a)(1), (a)(2) and (a)(3), though the aggregate value of such property may be in excess of the statutory thresholds provided for.

EPTL § 5-3.1(a)(5) and EPTL § 5-3.1(b) have the ability to wreak havoc on an estate creditor’s ability to collect from a decedent’s estate, as EPTL § 5-3.1(a)(5) allows the decedent’s surviv-ing spouse or child to elect to receive up to $25,000 in cash if the decedent died possessed of a vehicle worth $25,000

Christopher C. Haner


See HEARTS, Page 9



The Sandoval Decision: Needed Relief for Medicaid Applicants Who Have Transferred Assets

On September 30, 2015 the Second Department, decided an important case that may have significant implications for individuals applying for nursing home (institutional) Medicaid bene-fits. In Matter of Cecilia Sandoval v. Nirav R. Shah,1 the Court decided that a Medicaid applicant’s transfers of assets to her children during the five year peri-od prior to her application for nursing home Medicaid benefits did not create a period of ineligibility.

Under current Medicaid law, the agency to which the institutional (nurs-ing home) Medicaid application is sub-mitted “looks back” at an individual’s financial records for a period of five years prior to the application in order to determine if the individual transferred assets for less than fair market value.2

If any transfer(s), was made during that five year period, the applicant may be ineligible for a certain number of months (a penalty period) during which he/she will be required to privately pay for the care.

If a Medicaid agency determines that uncompensated transfers were made, it assesses the penalty period beginning on the first day of the month following the month of any transfer(s).3 The penalty period is calculated by dividing the total uncompensated value of assets trans-ferred for less than fair market value by the current average monthly private-pay nursing facility rate within that particu-lar region.

The resulting number is the number of months the applicant will be ineli-gible for institutional Medicaid bene-fits. According to the New York State Department of Health, the average monthly cost of nursing home care for 2016 is $12,633 in Nassau and Suffolk Counties.4 Thus, for example, if it is determined that an applicant has made $126,330 of uncompensated transfers for less than fair market value, the penalty period will equal ten months.

As such, to inform what planning is necessary, the attorney applying for Medicaid on behalf of an institution-alized individual will review all of the

applicant’s financial transactions within the five year look-back period to deter-mine whether the applicant or spouse made uncompensated transfers or trans-fers for less than fair market value. If a Medicaid applicant made transfers during the lookback period, then the applicant will have to privately pay during the penalty period unless he or she can demonstrate that the assets were transferred for a purpose other than to qualify for Medicaid.5 The appli-cant has the burden of rebutting the presumption that the transfers were made for the purpose of qualifying for Medicaid, i.e., in anticipation of a future need for Medicaid.6

In Sandoval, the petitioner made transfers to her children on May 7, 2007, June 20, 2007 and on April 7, 2008, when she was 72 and 73 years old. She transferred $15,000 to her daughter to help her pay for her car lease, $62,500 to her daughter to pay off a mortgage on the home that she owned together with her daughter and son-in-law and $5,000 to her son to help him pay for the cost of her granddaughter’s trip to Europe.7

After showing signs of dementia, the petitioner was placed in an assisted liv-ing facility in July 2010 (more than three years after the first transfer and more than two years after the final transfer). In late 2010, the petitioner was moved to a nursing home. When petitioner entered the assisted living facility in July of 2010, she had a total of $250,000

in her name. After nine months in the nursing home, she had depleted her remaining assets, at which point she applied for Medicaid.8

Upon reviewing the applicant’s nurs-ing home Medicaid application, the Putnam County Department of Social Services (“Putnam DSS”) approved the application, imposing a penalty period in excess of 11-months. Putnam DSS found that the transfers were made “in anticipation of a future need to qualify for medical assistance.”9 The applicant requested a fair hearing after which the New York State Department of Health (“DOH”) affirmed Putnam DSS’s deter-mination.

After analyzing the facts of the case, the Appellate Division, Second Department, annulled DOH’s decision because the evidence demonstrated that the transfers were made two years prior to the applicant showing signs of demen-tia. The Court stated that “at the time of the transfers and in the years pre-ceding her need for nursing home care, the petitioner was in good health and living independently. She was driving, cooking, exercising, and paying her own bills.”10 Moreover, the Court stated that the transfers were gifts and that the applicant retained more than $250,000 following the transfers (which is far in excess of the Medicaid resources thresh-old and thereby she did not render her-self insolvent).

In other words, the Court found that the petitioner met the burden of rebut-ting the presumption that the transfers were made in anticipation of a future need to qualify for Medicaid. Thus, Putnam DSS was incorrect in imposing a penalty period and DOH’s determina-tion was not “supported by substantial evidence”11 and was annulled by the Court.

The Sandoval case could have a significant impact upon the Medicaid aspect of elder law. In the past, it was extremely difficult to rebut the presump-tion that transfers for less than fair market value were made in contempla-tion or anticipation of the future need

for Medicaid benefits. In accordance, with regulations, Medicaid agencies pre-sume that transfers made by an elderly individual are done for that very pur-pose. DOH often determines after fair hearings that applicants did not rebut the presumption, as was the case with Ms. Sandoval’s hearing. The precedent set by Sandoval could affect agencies’ determination procedures, if not affect the outcomes of fair hearings. While the burden of rebutting the presumption still falls on the applicant, this case is potentially very helpful to many of our clients who are applying for institutional care. It may be too soon to know the full consequences of this decision, but prac-titioners should keep this case in mind and try to stay informed of other similar cases so that they can determine how the precedent set by this and other decisions can impact their clients.

Ronald A. Fatoullah is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate plan-ning, Medicaid planning, guardianships, special needs planning, estate administra-tion, trusts and wills. Elizabeth Forspan is the managing attorney of the firm. The law firm can be reached at 516.466.4422. Ronald can be reached via email at [email protected] and Elizabeth can be reached at [email protected]. Mr. Fatoullah is also the co-founder of J.R. Wealth Advisors, LLC.

The authors would like to thank Stacey Meshnick, Esq, supervisor of the firm’s Medicaid department, for her valuable con-tributions to this article.

1. 131 A.D.2d 1254 (2d Dept. 2015)2. 42 USC § 1396p(c)(1)(A) and SSL § 366(5)(e)(1)(vi).3. 96 ADM 8, p.5.4. GIS 15 MA/23.5. 42 USC § 1396p(c)(2)(c)(i) and SSL § 366(5)(e)(4)(iii).6. See Sandoval v. Shah, 131 A.D.3d 1254, 17 N.Y.S.3d 450 (2d Dept. 2015)(referencing Rivera v. Blass, 127 A.D.3d 759 (2d Dept. 2015)).7. Sandoval, 17 N.Y.S.3d at 451.8. Id.9. Id. 10. Id. 11. Id.

Ronald A. Fatoullah

Elizabeth Forspan

generally, payments to facilities such as independent living facilities are not “medical expenses,” nor are pay-ments for assistance with Instrumental Activities of Daily Living. However, there would be some exceptions for disabled individuals who require health care services or custodial care. The pro-posed amendment would place a limit on the hourly payment rate that the VA may deduct for in-home attendants.

Asset Transfers and Penalty Periods (Proposed § 3.276)

The proposed regulations provide that any asset belonging to the claimant in excess of the allowable resource limit, if transferred for less than fair market value, will cause a penalty period. This includes transfers to a trust and pur-chase of an annuity or any other instru-

ment that reduces net worth. Currently, an applicant for Aid and Attendance benefits may transfer all of his assets without penalty.

The amendments propose a look-back period of thirty-six months. Any amount transferred during this look back will be divided by the monthly pension amount to which the claimant would have been entitled. The result of that calculation will be the penalty period or the amount of time the claim-ant will not be eligible to receive the Aid and Attendance pension. The proposed changes limit any penalty imposed to ten years.

Consider the following example:Mr. Smith, a World War II veteran,

is admitted to an assisted living facility and requires assistance with two activ-ities of daily living. He has a checking account in the amount of $19,220 and an investment account in the amount of $200,000. In order to qualify for Aid and Attendance, Mr. Smith trans-fers $100,000 of his investment account

to his son, leaving Mr. Smith with $119,220 in assets, the proposed net worth limit.

Under the proposed regulations, Mr. Smith will be subject to a penalty period based on the amount of assets trans-ferred during the 36 months prior to the date of application divided by the pension benefit to which he would have been entitled. Assuming Mr. Smith was entitled to the maximum pension bene-fit of $1,789, Mr. Smith’s asset transfer of $100,000 to his son will result in a penalty period of 55.9 months, or 4.7 years, during which time Mr. Smith will not be eligible to receive the Aid and Attendance benefit.

According to the National Center for Assisted Living, the average stay in an assisted living facility is approximately 3 years. In many if not most cases, vet-erans and/or their spouses will never realize the Aid and Attendance pension benefit.

If these proposed regulations are passed into law, it will be critical for vet-

erans and their spouses to plan ahead for eligibility, similar to current plan-ning for Medicaid eligibility. As with Medicaid planning, if assets are trans-ferred prior to the look-back period, the veteran and/or the surviving spouse will be eligible for benefits when the medical need arises in the future.

The Aid and Attendance benefit has made it financially possible for countless veterans and/or their surviving spous-es to move into assisted living facili-ties or remain there after their funds have dwindled. It is critically important that access to appropriate housing and care for elderly veterans and surviving spouses of veterans remain in place, not to mention the moral obligation to take care of those who have fought for this country.

Melissa Negrin-Wiener, Esq., partner, man-ages the Government Benefits Department at the Elder Law firm of Genser Dubow Genser & Cona.

REGULATIONS ...

Continued From Page 3



Revoking an Irrevocable Medicaid Asset Protection Trust

The Medicaid Asset Protection Trust is the bread and butter of an Elder Law practitioner. When discussing the fund-ing of an irrevocable trust, Elder Law attorneys are often asked the same question by the clients, “May I fund the

Trust with some assets now and then fund it with additional assets at a later date?” Some practi-tioners may advise their cli-ents that the cli-ent may fund the trust now and in the future, while others may sug-gest the creation of a new trust to hold these addi-

tional assets. In either case, the Elder Law prac-

titioner must raise the five-year look back issue. The five-year look back window starts each time another asset is transferred into the existing trust or into an entirely new trust. It is imper-ative to explain to clients that should a crisis happen where the Creator1 of the trust later seeks to qualify for nursing home Medicaid coverage, then it might be necessary to return the Trust assets to the Grantor, and, at that time, the trust can be revoked.

An irrevocable trust can be revoked by its Creator under two circumstanc-es: If the trust terms permit such a revocation—which Medicaid Asset Protection Trusts do not—or pursuant to EPTL § 7-1.9. Section 7-1.9(a) per-mits both full and partial revocation of irrevocable living trusts. Therefore, no matter what the practitioner advises (funding the existing trust or creating a new trust), the result remains the same–the trust asset that must be removed from the Trust and returned to the Grantor, can be revoked from the trust by utilizing Section 7-1.9.

Requirements of Revoking an Irrevocable Trust

To properly revoke an irrevocable trust or a portion of an irrevocable trust pursuant to Section 7-1.9, the Creator must: (1) provide the trustee with an acknowledged written revo-cation of the trust, along with (2) the acknowledged written consent of “all persons beneficially interested” in the trust.2 Upon the trustee’s receipt of the consent from the beneficially interest-ed persons and the Creator’s written revocation, the trustee no longer has any control over the revoked asset(s).3 It is at this time that title to the revoked asset should be returned to the Grantor.

Revocation of a trust, either full or partial, has been in existence for decades. For example, in the 1946 Court of Appeals case Culver v. Title Guar. & Trust Co, the issue was whether or not a partial revocation of a living trust was permissible when one of the several Creators of the Trust was now deceased.4 After the death of one of the Settlors, the surviving joint Settlors sought to partially revoke the trust, but only to the extent of their

individual contributions. The court denied the joint Settlors’ requests for partial revocation by stating that revo-cation pursuant to Section 7-1.9(a) is only possible through the consent of all interested parties, meaning all of the Settlors, alive or dead.5 The court held that although one of the Settlors died, it did not deprive the deceased Settlor6 of her right to refuse consent to a partial or total revocation of trust, and therefore, the Court held that the surviving Settlors could not partially revoke the trust.7

Beneficially Interested PartyThis leads us to the second crite-

rion of revoking an irrevocable trust pursuant to Section 7-1.9(a): Who is a beneficially interested party? The EPTL does not define a beneficially interested party, but instead tells us what it is not. For any trust created after 1951, a disposition “in favor of a class of persons described only as the heirs, next of kin, or distributees (or by any term of like import) of the creator of a trust does not create a beneficial interest in such persons.”8

Based on the plain meaning of the statute, it is clear that the present beneficiaries and remaindermen of a living trust are “beneficially interest-ed” persons. It is, however, not clear as to whether or not whether “beneficially interested” persons include a trust’s contingent beneficiaries.

Terms of Like ImportTo determine whether or not con-

tingent beneficiaries are “beneficially interested” persons, we must define the phrase “terms of like import.” This phrase was discussed in detail in the seminal case, Matter of Dodge.9 In Dodge, the Grantor of a living trust sought to revoke his living trust pur-suant to Section 7-1.9(b), since the Trustee of his Trust would not consent to revoke the Trust—which was per-

missible under his Trust’s terms. In opposition to the Grantor’s revocation, the Trustee of the Trust brought an action against the Grantor by assert-ing that the Settlor’s revocation of the trust pursuant to Section 7-1.9 was invalid.

In Dodge, after several amendments, the Trust ultimately provided that during the Settlor’s lifetime, the net income was to be paid to the Grantor, for life, and upon the Grantor’s death, the net income was to be paid to his wife. If Grantor’s wife failed to survive him, then the net income was to be paid “to or for the benefit of settlor’s lawful representative issue.”10 If there was no living issue of the Grantor upon his and his wife’s deaths, then the net income was to be paid to the “lawful representative issue of Settlor’s par-ents.”11 The principal dispositions of the trust mirrored the net income pro-visions, such that upon the trust’s ter-mination (upon the death of both the Grantor and his spouse), the principal was to be distributed first to the lawful representative issue of Settlor, in equal shares, per stirpes, and if none, then to the lawful representative issue of Settlor’s parents, in equal shares, per stirpes.

Receiving only the consent of his wife, the Settlor argued that he prop-erly revoked the trust by asserting that only he and his wife were the only two individuals with a beneficial interest in the trust. The Grantor further argued that the phrase “lawful representative issue” was of “like import” to heirs or next of kin and therefore, the consent from his issue and the issue of his parents was not required to properly revoke the trust.12

In determining whether or not the phrase “lawful representative issue” was a term of like import, the Court reviewed the statute’s legislative his-tory and its commission. In particular, the Court pointed out that the legis-

lature’s commission noted that it was “not attempting to change existing case law with respect to gifts made to ‘issue’ or ‘children,’” which states that that gifts to “issue” or “children” does, in fact, create a beneficial interest in any living issue or children.13

Applying the law to the facts of Dodge, the Court held that not only did the Settlor’s children have a beneficial interest in the trust, but so did the Settlor’s siblings. Since the Settlor’s children were minors and therefore, unable to consent and because none of the Settlor’s sisters consented to revoke the trust, the court held that the trust was not properly revoked pursuant to Section 7-1.9.14

How Far Does the Term “Issue” Stretch?

Case law is clear that while the term “issue” creates a beneficial interest in a trust, the term “issue” only applies to individuals who are presently in existence and not to unborn persons.15 In Smith v. Title Guar. & Trust Co., the Court reasoned that the phrase “persons beneficially interested” would be stretched beyond its plain meeting if it were to include those who are not yet born.16

ConclusionIt is common within the field of

Elder law to see a Medicaid Asset Protection Trust that provides con-tingent provisions to the issue of the Grantor’s children or to the children of the Grantor’s children. This lan-guage can become problematic in the event that a trust must be revoked for the purposes of Medicaid planning. If this language is included in the trust, not only are the Grantor’s children required to sign the consent to revoke, but so are the Grantor’s grandchildren. If any of the children or grandchildren are minors, then the trust cannot be properly revoked, no matter if it is a partial or full revocation. It is advised to check all irrevocable Trusts for these drafting issues.

Meghan McCarthy is an Elder Law/Trusts and Estates associate at the Atlas Law Group in Melville.

1. Creator, Settlor, and Grantor are used inter-changeably throughout this article.2. EPTL § 7-1.9(a). 3. Id.4. 296 N.Y. 74 (1946).5. Id.6. Planning note: In the event of a Grantor’s incapacity, a properly drafted New York State Durable Power of Attorney can enable the Grantor’s appointed agent to revoke a Trust on the Grantor’s behalf.7. Culver, 296 N.Y. 74.8. EPTL § 7-1.9(b) (emphasis added). 9. 25 N.Y.2d 273 (1969).10. Id.11. Id. at 277.12. Id.13. Id. at 283.14. Id. at 285.15. See, e.g., Matter of Dodge, 25 N.Y.2d 273; Matter of peabody, 5 N.Y.2d 541 (1959). See also Smith v. Title Guar. & Trust Co., 287 N.Y. 500 (1942); Schoellkopf v. Marine Trust Co., 267 N.Y. 358, 364 (1935) “no person can by his con-sent destroy an interest even of his own descen-dants, derived directly from the trust instrument and not derived from the ancestor by succession”); Rosner v. Caplow., 90 A.D.2d 44 (1st Dept. 1982) (“persons beneficially interested” include infant issue); In re Rosoff, 653 N.Y.S.2d 227 (Surr. Ct., N.Y. Co. 1996).16. Smith, 287 N.Y. at 504.

Meghan McCarthy



or more while EPTL § 5-3.1(b), when properly leveraged,14 gives the sur-viving spouse or child, to the extent that the decedent died possessed of the items of personal property enu-merated in EPTL § 5-3.1(a)(1), (a)(2) and (a)(3), the ability to substitute the receipt of such property for an addi-tional $42,500 in exempt cash.15 When combined with the exemption found in EPTL § 5-3.1(a)(6), which provides that the surviving spouse or child are allowed a third source of exempt cash in the amount of $25,000, the net effect of EPTL § 5-3.1 is to allow a surviving spouse or child the ability to elect up to $92,500 in exempt, creditor protected cash, while leaving the dece-dent’s estate creditors to fight over the miscellaneous personal property which was substituted for cash.

Illustration of Effective Creditor Negotiation

To illustrate the above, let’s assume Mr. Smith, a married man whose wife is the sole beneficiary of his Last Will and Testament, dies possessed of a bank account with $120,000 in his name alone and possessed of all of the items enumerated in EPTL § 5-3.1(a)(1), (a)(2), (a)(3), (a)(5) and (a)(6) at the maximum value allowed under each respective subparagraph. Let’s further assume that Mr. Smith was a spend-thrift who died owing $200,000 in cred-it card debt. After her husband’s pass-ing, Ms. Smith, being a woman who is not sentimental in the least, elects to receive $92,500 in cash as exempt

property from her husband’s estate and allows her husband’s Executor to take possession and legal title to all of Mr. Smith’s other property.

Being a diligent person, the Executor immediately takes possession of the $27,500 remaining in Mr. Smith’s bank account, after payment to Ms. Smith of her $92,500, and inventories the other miscellaneous items of personal property formerly owned by Mr. Smith, which he allows to remain in Mr. and Ms. Smith’s apartment. While Mr. Smith’s Executor can bet his bottom dollar that Mr. Smith’s credit card com-pany, who is owed $200,000, will gladly take the $27,500 in Mr. Smith’s estate bank account in partial satisfaction of their claim against Mr. Smith’s estate, what is the likelihood that the credit card company will take possession of Mr. Smith’s couch, toaster, tuba, record album collection, 2013 Mercedes Benz and other various items of miscel-laneous personal property in partial satisfaction of their debt?

While it is true that the credit card company could force the Executor to sell Mr. Smith’s miscellaneous prop-erty and provide the cash proceeds of such sale to the credit card company, this scenario is only slightly more likely than the credit card company taking possession of Mr. Smith’s mis-cellaneous personal property. The most likely outcome in this scenario: the credit card company will accept pay-ment from Mr. Smith’s Executor in the amount of $27,500 in full satisfaction of their claim and Mr. Smith’s couch, toaster, tuba, record album collection, 2013 Mercedes Benz and all other var-ious items of miscellaneous personal property will remain at the apartment

he used to share with Ms. Smith. In short, by electing to take the

$92,500 in cash in lieu of the enumer-ated items of personal property set-off by EPTL § 5-3.1, Ms. Smith was able to keep not only the $92,500 in cash, but the items which were substituted for cash.

Christopher C. Haner, Esq. is a Senior Associate at the Law Office of Roy A. List, where he concentrates his practice in Trusts & Estates, Elder Law and Civil Litigation.

1. See generally EPTL § 5-3.1 and all legislative amendments thereto.2. See EPTL § 5-3.1(a)(3).3. See EPTL § 5-3.1(a)(1). 4. See EPTL § 5-3.1(a)(2).5. See EPTL § 5-3.1(a)(5).6. See EPTL § 5-3.1(a)(6).7. EPTL § 5-3.1(c).

8. EPTL § 5-3.1(a).9. Creditors of the decedent’s estate include any debt the decedent owed at the time of death. For purposes of this article, creditors of the estate do not include persons claiming against the estate for the reimbursement of reasonable funeral expenses. 10. See EPTL § 5-3.1(a)(5)(surviving spouse or surviving child may elect to receive in cash an amount equal to the value of the motor vehicle, not to exceed $25,000); EPTL § 5-3.1(b)(“no allow-ance shall be made in money or other property if the items of property described in subparagraph (1), (2), (3) or (5) of paragraph (a) are not in exis-tence when the decedent dies.”) See also Turano & Radigan, New York Estate Administration, 2014 Edition, § 12.02[b]; 11. See Turano & Radigan, New York Estate Administration, 2014 Edition, § 12.02[b]. See also EPTL § 12.1.1 concerning a creditor’s ability/inability to “claw back” certain estate assets dis-tributed to estate “distributees” or “beneficiaries.” 12. See EPTL §§ 5-3.1(a)(4), 5-3.1(a)(5), 5-3.1(b).13. See EPTL § 5-3.1(a)(4).14. See EPTL § 5-3.1(b)(“no allowance shall be made in money or other property if the items of property described in subparagraph (1), (2), (3) or (5) of paragraph (a) are not in existence when the decedent dies.”) While this statutory provision, which is far from clear, is typically interpreted as a limit to a surviving spouse or child’s ability to substitute other property or cash for items of exempt property which are not in existence as of the date of the decedent’s death, this provision could also be read to allow a surviving spouse or child such substitution if the enumerated items of exempt property are in existence on the date of the decedent’s death, as the negative implica-tion of the portion which provides “no cash if the property is not in existence” is that “cash shall be allowed if the property is in existence.”15. See EPTL §§ 5-3.1(a)(5), 5-3.1(b). See also Turano, supra n. 11, § 12.02[b] and 2010 N.Y. Laws 437.

HEARTS ...


February 17, 2016. The Hon. Andrew M. Engel, Hon.

Rhonda E. Fischer, Hon. Gary F. Knobel, Hon. Douglas J. Lerose, Hon. Jack L. Libert, Hon. Anthony W. Paradiso, Hon. Joy M. Watson, and Court Attorney Referee Marie McCormack were joined by NCBA President Martha Krisel and new lawyers from a diverse range of practice areas to share stories about practicing law, exploring other practice areas, becoming involved in the bar association, giving back to the commu-

nity and a variety of other topics. The lunch was a tremendous success

and meaningful to all who participated. If you are a member of the judiciary or new lawyer and NCBA member, we hope to see you at the next luncheon scheduled for Friday, March 11, 2016 at 12:45. Mark your calendars, and send your R.S.V.P. to Donna Gerdik via email at [email protected].

Andrea M. Brodie, Esq. is an associate at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP and the co-chair of the Steven J. Eisman New Lawyer/Judiciary Relations Task Force.

Jennifer L. Koo, Esq. is an associate at Sales Tax Defense, LLC and the co-chair of the New Lawyers Committee.

Please join us to celebrate and recognize those law firms, solo practitioners and individuals

who have performed exemplary pro bono service to the community this past year at

The Second Annual

Pro Bono Recognition Cocktail Reception

Wednesday, April 6, 20165:30p.m. - 7:30p.m.


Please RSVP to Cheryl Cardona at(516)747-4070 x231 or [email protected]

BENCH ...


In short, by electing to take the $92,500 in cash in lieu of the enumerated items of personal property set-off by EPTL § 5-3.1, Ms. Smith was able to keep not only the $92,500 in cash, but the items which were substituted for cash.

Supreme Court Justice Hon. Jack L. Libert speaks to the NCBA new lawyers.


At the Eleventh Annual Black History Month Celebration last month the Nassau County Courts Black History Committee and the Amistad Long Island Black Bar Association hon-ored Hon. Jerald S. Carter with the Hon. Alfred S. Robbins Memorial Award, Rivkin Radler, LLP with the Amistad Presidential Award, Vickie A. Hicks with the Hon. Michele M. Woodard Service Award and Julius Pearse with the Trail Blazer Award. (l-r) Hon. Alfred D. Cooper (ret.); Acting Supreme Court Justice, Hon. Antonio I. Brandveen; Acting Supreme Court Justice, Hon. Jerald S. Carter; Vickie A. Hicks; Julius Pears; Partner at Rivkin Radler LLP, William Savino, Esq.; Nassau County District Attorney, Madeline Singas; Supervising Judge of the District Court, Hon. Norman St. George; President, Amistad Bar Association, Maxine Broderick, Esq.; and, Chief Clerk Nassau County Supreme Court Kathryn Driscoll Hopkins, Esq.(Photos by Hector Herrera)

Tax Department’s Authority to Conduct Regulatory Inspections and the Fourth Amendment

CELEBRATING BLACK HISTORY MONTH

Nassau County Bar Association President, Martha Krisel, speaks at the Black History Month Celebration.

Law Student Membership

at the Nassau County Bar Association

Jamie A. Rosen

As a first year law student at Hofstra University School of Law (now Maurice A. Deane School of Law at Hofstra University), a fellow law stu-dent told me that joining the Nassau County Bar Association would be a great way to meet practicing attorneys and potentially get an internship. I was sold! I immediately joined and started taking advantage of network-ing events and opportunities to speak with attorneys, such as attending the Young Lawyers Committee (now New Lawyers Committee) meetings and Holiday Party as well as other monthly committee meetings.

As a “new” or “young” lawyer, I am very passionate about encouraging law students to join the Bar Association. Over the past several months the Steven J. Eisman New Lawyer / Judiciary Relations Task Force has worked very hard to ensure that law students have access to the Bar Association and participate in social events and committee meetings. We started our outreach in Fall 2015 with First-Year Orientation programs at local law schools. In August 2015, I moderat-ed a panel of fellow young alumni at Hofstra entitled “What I Wish I Knew Then: Law School From the Alumni Perspective”. The panel discussed top-ics such as work-life balance and the importance of gaining practical experi-ence in law school through moot court, trial advocacy, clinics, and internships. Andrea Brodie, Esq., Co-Chair of the Task Force with the Honorable Jeffrey Goodstein, and Michael DiFalco, Esq., current Co-Chair of the New Lawyers Committee, attended the St. John’s University School of Law Fall Festival to try and engage prospective members. In addition, members of the Task Force, including myself, attended a meeting with Dean Eric Lane and his adminis-tration at Hofstra to brainstorm oppor-tunities for law student members. The Task Force has also used Facebook to educate law students as to why they should join the Bar Association.

My participation in the Bar Association as a law student made a significant impact on my professional career and continues to play an import-ant role in my life as a practicing attor-ney. I hope to continue our outreach efforts and encourage all current law students to take advantage of the many opportunities available to them at the Bar Association.

Jamie A. Rosen, Esq. is an Associate Attorney at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, where she practices Mental Health, Health Care and Elder Law. She received her J.D. from the Maurice A. Deane School of Law at Hofstra University, where she was an Associate Editor of the Hofstra Law Review. She may be reached via e-mail at [email protected].

In New York sales of cigarettes are big business. Many supermar-kets, chain stores, drug stores, delica-tessens, bodegas, among others, sell cigarettes. Competition is fierce, and, when the Tax Department steps in to stop dealers from engaging in this business, the consequences can be devastating. Issues concerning stat-utory authority of Tax Department Investigators to conduct regulatory inspections that evolve into crimi-nal enforcement actions, Fourth Amendment limitations and suppres-sion of evidence, consequences to cig-arette vendors found in possession of untaxed product, and the legal recourse available to vendors, are dis-cussed below.

The United States Constitution1 and New York State Law2 guarantee to citizens the right to be protected

against unrea-sonable searches and seizures. In New York, when police officers have informa-tion sufficient to show that evi-dence of a crime may be found at a certain prop-erty, in order to enter such prop-erty and secure the evidence

they must present the information in a search warrant application to a Criminal Court Judge. If the Judge finds that there is probable cause to believe that the crime has been com-mitted and that evidence of the crime may be found in a particular premises,

the Judge will issue a search warrant directing that a police officer search the premises and seize evidence.3

Courts have carved out various exceptions to the requirement for a search warrant. One in particular, the regulatory inspection exception, enables government agents and inves-tigators to conduct unannounced inspections of businesses regulated by such agencies. The United States Supreme Court has upheld such inspections regarding strictly or “per-vasively” regulated industries4, 5.

Statutory and Regulatory AuthorityThe New York State Department of

Taxation and Finance (hereafter “Tax Department”) is an administrative agency, that in addition to the admin-

Gary Alpert

See INSPECTIONS, Page 12


One Size Does Not Fit All – Ten Reasons Why Commercial Litigators Should Consider Commercial Mediation

Most commercial litigators love to litigate. Their fondness for the art of advocacy, competitive instinct, keen interest in pre-trial and trial strat-egizing, drive for personal satisfac-

tion, and—let’s be honest—love of lucre all drive these war-riors’ dreams of “scorched earth” legal victory. In some cases, their pugilistic desires are fine, even commend-able. However, in other cases, these desires can lead to an endless descent into needlessly

protracted proceedings. The negative consequences of such trench warfare include, but are not limited to ineffi-ciency, waste, reputational damage, and public distrust of litigators.

There are just some situations where litigation is not an appropri-ate form of dispute resolution (and exactly what those situations are is a topic well beyond the scope of this article). In such circumstances, medi-ation—“an informal and confidential process wherein the parties meet with a mutually selected impartial and neu-tral person who assists them in the negotiation of their differences”1—can present itself as an optimal (at least initially) dispute resolution method for one or more of the following ten reasons.

10: Scheduling FlexibilityIn any commercial litigation involv-

ing judicial intervention, the parties and their attorneys are at the mercy of at least one judicial schedule. In contrast, in commercial mediation, the parties and their attorneys generally remain in control of their respective schedules, rendering it a more attrac-tive dispute resolution option.

9: Recognition for Problem SolvingAccording to one founder of a firm

which specializes in representing entrepreneurs, the top reason why entrepreneurs generally hate to deal with lawyers is the perception that the latter cause problems instead of solving them: “Good lawyers are able to identify significant potential legal problems; great lawyers provide solu-tions to those problems.’”2

Commercial mediation defies this stereotype by its essence as an alter-native dispute resolution modality con-trolled by the disputants, not their attorneys. As such, commercial litiga-tors who support commercial media-tion stand in support of “doing some-thing”—problem solving—and not just “saying something”—problem identi-fication.

8: Judicial SupportJudges abhor (at least) two admin-

istrative nightmares: (a) an out-of-con-trol docket; and (b) reversal or signif-icant modification of their decisions.

Successfully mediated cases resulting in settlement prevent these night-mares from becoming reality. It fol-lows that judges throughout the world ardently support mediation,3 and com-mercial litigators who ignore this trend do so at their peril.

7: SpeedMediation is simply faster. Business

mediations “usually take between one and four months from start to finish, and many are completed with just one in-person session. Shorter duration = fewer billable hours expended (= frac-tional cost relative to adversarial pro-ceedings).”4

6: Increased Law Practice EfficiencyThe odds of a civil case ultimately

proceeding to trial are not exactly high. “According to the National Center for State Courts, only about 7.6 percent of civil cases go to trial in the United States, and only 0.6 percent receives a jury trial.”5 In contrast, commercial mediation offers practically mirror-op-posite odds: “more than 85% of mediat-ed business cases result[] in settlement agreements.”6

Considering these odds, allocating resources to mediation initiatives that can resolve more cases in less time is worthwhile and will likely increase law practice efficiency.

5: ConfidentialityIn the Information Age, any case

can be tried twice: once in the court-house, and once in the court of public opinion. Blasting a 160-character text or tweet of trial testimony to cyber-space that “goes viral” can easily cost any client—regardless of mainstream media presence—thousands of dollars in reputational damage in less than 160 seconds. Such damage can even occur when a client prevails.7

However, unlike a public trial envi-ronment, with narrow exceptions,8 commercial mediation is “entirely con-fidential.”9 While this designation of confidentiality is no guarantee against a wrongful disclosure of confidential information, it is certainly better than no protection at all. Furthermore, while the remedies for breach of medi-ation confidentiality are not partic-ularly punitive,10 courts do not take such breaches lightly.11

4: Neutral Assessment of Case Strengths and Weaknesses

The best commercial litigators rec-ognize that an assessment of case strengths and weaknesses is an essen-tial component of trial preparation.12 A type of evaluative mediation known as “information centered mediation” is particularly useful in testing case strength.13 This process involves the appointment of a mediator having practical or technical expertise who receives written submissions and sig-nificant documents from the parties in advance of meeting with them.14 After reviewing these materials and hearing from the parties or their attorneys, the appointed mediator renders an opinion on “the likely outcome and value of the dispute,” which he or she proceeds to

defend.15 It is in the defense of the mediator’s

opinion that an astute commercial lit-igator can strike gold by exposure to the mediator’s opposing perspectives on the case.16 And even where a case returns to a litigation track, analysis of case strengths and weaknesses will have occurred as part of the mediation process.

3: Reduced Discovery ExpensesClients often discover early that

the discovery process “can be lengthy, expensive, intrusive, and frustrat-ing.”17 While in commercial mediation, it is practically impossible to entire-ly eliminate discovery in advance of mediation sessions, “[e]ssential discov-ery can be conducted early, setting the stage for prompt resolution that saves the parties the vast bulk of fees and expenses that they otherwise would have incurred.”18

2: “Win-Win” PotentialWhen judges, court attorneys, or

even the parties’ attorneys settle a matter without mediator assistance, it is often done in the limited framework of compromise—what is also known as a “win-lose” framework because the parties sacrifice items to gain others or avoid liability exposure.19 This is large-ly because the restrictive structure of litigation limits available remedies and options. Courts, for example, are rarely able to compel parties to inter-act with each other outside of the scope of contractual arrangements that they have established or award remedies to them beyond those available at law.20

However, commercial mediators are not so limited and are often able to pro-pose extra-legal, “out of the box” cre-ative options that open the proverbial door to collaborative “win-win” conflict resolution.21

1: Client Retention Driven by Cost Savings

Finally, commercial mediation is often superior to commercial litigation because it offers a greater probability of client retention driven by cost sav-ings.22 In the United States, “parties spend $50,700 on average on each lit-igated case, [but] only $7,500 ($3,500 per party [in a two-party case]) for resolving their case by mediation, a cost-savings of approximately 85%.”23 Outside of the United States, the sav-ings are similarly significant.24

Moreover, it is not only clients who stand in support of commercial medi-ation in light of these savings, but the transactional attorneys counseling them, who in turn affect the future retention of commercial litigators. Recently, Loretta Gastwirth, Chair of the NCBA’s ADR Committee and a commercial litigator herself, advised that “inserting a mediation clause in a contract . . . is a no-brainer” in light of its potential to “save clients tons of money in the long run . . . .”25 The proverbial stage for commercial medi-ation is thus now being set by clients’ transactional attorneys prophylactical-ly, well before any submission of plead-ings.

Towards the FutureIt bears emphasis that commercial

mediation—or any dispute resolution process, for that matter—is no tal-ismanic panacea. “One size does not fit all” applies equally to commercial litigation and commercial mediation such that either is optimal only in appropriate cases, not every case. It is for this reason that some practitioners refer to ADR as “Appropriate Dispute Resolution”26 instead of “Alternative Dispute Resolution.”

However, as ADR continues to grow in popularity, it is not a question of “if” but “when” commercial mediation replaces it as a “first-line” option for dispute resolution. And at the end of the day, even those commercial lit-igators who stubbornly cling to the gladiatorial mindset of days gone by may come to welcome the turning of the tide. After all, it was no less than the great Chinese general Sun Tzu who declared, “For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.”27

Elan E. Weinreb, Esq., Managing Member of The Weinreb Law Firm, PLLC (http://www.weinreblaw.com), is a civil liti-gator, mediator, arbitrator, and member of the NCBA’s ADR and Commercial Litigation Committees. He can be reached at [email protected] or at 516.620.9716.

1. Arbitration & Mediation: Alternative Dispute Resolution Through the Nassau County Bar Association, Nassau County Bar Association, Feb. 19, 2013, http://www.nassaubar.org/UserFiles/Arbitration_Mediation_Broch ure.pdf (last visited Oct. 27, 2015). 2. Scott Edward Walker, Top 10 reasons why entrepreneurs hate lawyers, Venture Hacks, Jan. 14, 2010, http://venturehacks.com/articles/hate-lawyers (last visited Nov. 12, 2015) (empha-sis in original).3. See ADR Overview, Commercial Division – New York Supreme Court, July 9, 2015, http://www.nycourts.gov/courts/comdiv/ny/ADR_over-view.shtml (last visited Nov. 11, 2015); Mediation, Supreme Court of Victoria (Australia), Feb. 19, 2015, http://www.supremecourt.vic.gov.au/home/forms+fees+and+services/ mediation/ (last visited Nov. 11, 2015). 4. David J. Abeshouse, Business Alternative Dispute Resolution (ADR) Provides Fast, Fair, Flexible, Expert, Economical, Private, Customized Justice, 32 NYSBA Inside (No. 2) 18, 19, N.Y. State Bar Association Corporate Counsel Section, Fall 2014. 5. Philip B. Ytterberg, A Baker’s Dozen of ADR Practice Pointers to Boost Your Bottom Line, 3 GP|Solo Law Trends & News (No. 2) 44, 44, American Bar Association (General Practice, Solo & Small Firm Division), Sept. 2007 (available at http://www.americanbar.org/content/dam/aba/pub-lishing/law_trends_news_practice_area_enewslet-ter/ lawtrends0709.pdf). 6. David J. Abeshouse, Business ADR (Arbitration and Mediation) vs. Court Litigation for Commercial Cases, Avvo.com, June 18, 2013, http://www.avvo.com/legal-guides/ugc/busi-ness-adr-arbitration-and-mediation-vs-court-liti-gation-for-commercial-cases (last visited Nov. 16, 2015).7. See Joshua E. Bienstock, Students’ Lawsuits Proliferate: Is Mediation the Cure?, 65 Nassau Lawyer (No. 3) 7, 10 (Nov. 2015).8. See generally Max Factor III & Alice M. Graham, Better Practice Tip: Recognized Exceptions to Mediation Confidentiality and Remedies That Every Litigator Should Know, Mediate.com, July 2005, http://www.mediate.com/articles/factorm4.cfm (last visited Nov. 16, 2015).9. Ytterberg, supra n.5 at 45; see also Abeshouse, supra n.4 at 21; Bienstock, supra n.7 at 7.10. See Factor III & Graham, supra n.8. 11. See id. 12. See John Stuart Mill, On Liberty § II ¶ 23

Elan E. Weinreb

See MEDIATION, Page 12


istration of taxes, can regulate busi-nesses and individuals that engage in various commercial activities; it also has exclusive regulatory authority over businesses and individuals dealing in the wholesale and retail distribution of cigarettes and tobacco products, and regulatory oversight over the importa-tion, transportation and sale of petro-leum products, i.e., motor fuel (gaso-line) diesel motor fuel,6 and alcoholic beverages.7

In regards to cigarettes and tobacco products, Investigators have authority

… to examine the books, papers, invoices and … records of any person in possession, control or occupancy of any premises where cigarettes or tobacco products are placed, stored, sold or offered for sale …as well as the stock of cigarettes or tobacco products in any such premises…(And), (t)o verify the accuracy of the tax imposed and assessed by this article, each such person is here-by directed and required to give to the commissioner of taxation and finance or his duly authorized repre-sentatives, the means, facilities and opportunity for such examinations.8 The Tax Department also has crimi-

nal enforcement authority with respect to certain taxes that it administers. In fact, Department Investigators are also police officers as defined under the New York State Criminal Procedure Law, regarding enforcement of such taxes.9 Possession of unstamped, counterfeit–stamped or out-of-state stamped ciga-rettes ‘for purposes of sale’ is a crime and such cigarettes are seized when-ever or wherever they are discovered10 and vehicles if any, that were used to transport such cigarettes may also be seized for forfeiture.11 The crimes of Possession for Purposes of Sale or Sale of Unstamped or Illegally Stamped Cigarettes range from Class D felony to Class A misdemeanor.12

In regard to sentencing, periods of incarceration or probation that may be imposed are based upon Penal Law criteria. However, under the Tax Law courts may impose fines substantially higher than those provided for in the Penal Law : for a felony, a fine not to exceed the greater of double the amount of the underpaid tax liability resulting from the commission of the crime or $50,000, or, in the case of a corporation the fine may not exceed the greater of double the amount of the underpaid tax liability resulting from the commission of the crime or $250,000 and for a mis-demeanor the court may impose a fine not to exceed $10,000, except that in the case of a corporation the fine may not exceed $20,000.13

In addition to the criminal fines, it should also be noted that the Department has the authority to levy civil fines varying in severity, depend-

ing upon quantities of unstamped or counterfeit stamped cigarettes or coun-terfeit stamps found in possession of the defendant,14 (even if the defendant is not convicted of the above mentioned crimes.)

Case LawThe lead case in New York addressing

the Department’s authority to do admin-istrative inspections involving cigarettes and tobacco products, and which had Fourth Amendment ramifications, was People v. Rizzo.15

There, the Tax Department received a complaint that a Ronald Rizzo had been arrested in New Jersey in possession of approximately 400 cartons of untaxed cigarettes, indicating two New York addresses connected with him. During surveillance at one of the addresses, an investigator observed the defendant in the garage in possession of 30 cartons of various brands of cigarettes. The investi-gator entered the garage without Rizzo’s consent, seized about 90 cartons of ciga-rettes in the garage and about 54 cartons from the trunk of his car and arrested the defendant for the crime of Possession of Untaxed Cigarettes.16

The trial court suppressed the evi-dence of the cigarettes as an unconsti-tutional search and seizure. The Second Department upheld the trial court’s deci-sion and the Court of Appeals followed suit. The Court confirmed that the inves-tigator lacked probable cause to believe that the storage or sale of cigarettes was taking place on the defendant’s property prior to entering the premises. It also outlined three situations17 that could be considered guidelines for Tax Investigators while conducting admin-istrative inspections involving cigarettes and tobacco products, as follows:

• Where the dealer is open and notorious either by license or holding himself out to the public, Tax Department Investigators are authorized to inspect records and inventory of that dealer.

• Where a party is engaging in regulated activity out of premis-es which are not publicly recog-nized as those of a dealer in that commodity and investigators have probable cause to believe that regulated activity is taking place, they may lawfully enter the premises and inspect records and inventory pursuant to their statutory power.

• However, where the regulated activity is in fact occurring but the investigators have nothing more than a suspicion (as opposed to probable cause) to believe that such activity is taking place, stat-utory authority will not suffice as the basis upon which to enter the premises under investigation.

The Impact of InspectionsNotwithstanding inspections of unli-

censed individuals and businesses, such as the Rizzo case, the majority of the Department’s regulatory inspections

involve businesses to which it has issued licenses and permits: cigarette stamping agents, wholesale and retail distributors. The Department is very proactive in its efforts to enforce the law. For example, for calendar year 2014 the Department had seized 2,017 cartons of cigarettes, 254,723 cigars, 2,059 pounds of loose tobacco, 14,738 counterfeit cigarette tax stamps and $35,658 cash.18

Consider the following example of a store that was found in violation of the law during an inspection: On June 25, 2015… Tax Department Cigarette Strike Force Investigators conducted a cigarette inspection at Stop & Go Friend Corp. located at 730 South St., in Peekskill. In total, the investigators seized 159 packages of cigarettes with counterfeit tax stamps. Sultan Ahmed Mosleh Ali, 28 was charged with crim-inal tax fraud and felony possession of counterfeit tax stamps. The defen-dant was processed at the Peekskill Police Department and remanded to the Westchester County Jail.19

As in the above case generally, • The store owner is either arrest-

ed or issued summonses,• untaxed cigarettes are seized,

andthe store’s permit (license) to do busi-

ness (its Certificate of Registration20 ) is also seized.

Confiscation of the Certificate of Registration translates into dire conse-quences for the business owner. Since Investigators have seized the store’s Certificate of Registration, the store is prohibited from purchasing cigarettes from wholesale distributors or continu-ing to sell any such product (includ-ing existing inventory) to its customers. Business is suspended!!

• loss of customers! • loss of income! • financial loss in money spent for

inventory of legally-stamped cig-arettes that the proprietor cannot sell!

And, in some cases finality; the shut down and discontinuance of business.

Options After SuspensionA defendant whose Certificate

of Registration has been suspend-ed because of unstamped or counter-feit-stamped cigarettes discovered on its’ premises has recourse. The Tax Law offers the business owner a procedure to apply for return of the store’s Certificate of Registration and reinstatement of the store’s authority to continue in business, i.e., the purchase and sale of cigarettes.

By filing a petition with the Department, the store owner has the right to have the seizure and suspen-sion of the store’s Registration reviewed. The Commissioner designates a Review Officer to hear the case. A hearing is conducted, during which the Petitioner may present evidence and witnesses in an effort to prove to the Review Officer’s satisfaction a basis for lifting the sus-pension.21

Petitioner has the burden of proof, to prove by a preponderance of the

evidence that the cigarettes were not unstamped or unlawfully stamped. However, based upon this writer’s expe-rience as a Department Review Officer, the Petitioner usually is unable to sus-tain this burden and the alternative is to present evidence of mitigating cir-cumstances concerning the incident. Counsel’s presentation of the case should include information such as:

• Period during which the peti-tioner operated ‘in good’ standing with the Department

• information identifying the dis-tributors from whom the client regularly purchases product, with copies of invoices and receipts reflecting such purchases

• explanation as to how the untaxed product came to be on the premises

• and, if available, information the client may have concerning incidents of illegal trafficking in cigarettes.

The Review Officer will decide the period of suspension or revocation of the Petitioner’s Registration and will submit findings to the Department’s Commissioner. Thereafter, the Commissioner will issue a decision regarding the Petitioner’s suspension. If the decision is to continue the sus-pension or revoke the Certificate of Registration, the Petitioner may appeal the Commissioner’s decision by com-mencing an Article 78 against the Tax Department Commissioner, in Supreme Court in Albany, NY.22

Gary Alpert is in private practice and Of Counsel to Hein, Waters & Klein, Garden City, and formerly as an attorney with Tax Department’s Criminal Investigations Division, supervised Tax Fraud Investigations and served as a Certificate of Registrations Review Officer.

1 United States Constitution, Fourth Amendment.2 New York State Constitution, Article One, § Twelve.3 New Criminal Procedure Law, Article 690, §§ 690.05 et. seq.4Colonade Catering Corp. v. United States, 397 U.S. 722 (1970). The Supreme Court approved the statutory authorization of Internal Revenue Agents to conduct warrantless inspections of fed-erally licensed dealers in alcoholic beverages. 5 United States v. Biswell, 406 U.S. 311 (1972). Dealer engaged in the pervasively regulated business of firearms sales accepts a license to do so with knowledge that his business records and inventory will be subject to effective inspection. 6 Tax Law Art. 12-A, §§ 281 et. seq.7 Tax Law Art. 18, §§ 420–445.8 Tax Law § 474(4).9 New York Criminal Procedure Law § 1.20(34)(q).10 Tax Law Art. 37, § 1846 et. seq.11 Tax Law Art. 37, § 1847 et. seq. 12 Tax Law Art. 37, § 1814(a) et. seq.13 Tax Law Art. 37, § 1800.14 Tax Law § 481(1)(b)(i) et. seq.15 People v. Rizzo, 40 N.Y.2d 425 (1976).16 Rizzo, 47 A.D.2d at 470 (1975).17 Rizzo, 40 N.Y.2d at 428 and 429 (1976).18 Press Release, NYS Dept. Taxation & Finance (Apr. 7, 2014)(on file with author).19 Press Release, NYS Dept. Taxation & Finance ( July 1, 2015)(on file with author).20 Tax Law § 480-a(1)(a).21 Tax Law § 480-a(4)(b).22 Tax Law § 480-a(4)(c).

INSPECTIONS ...


(Online ed., Bartleby 1999), http://www.bartleby.com/130/2.html (last visited Nov. 17, 2015). 13. See Norman Brand, Learning To Use The Mediation Process - A Guide For Lawyers, Mediate.com, Sept. 2000, http://www.mediate.com/articles/nbrand4.cfm (last visited Nov. 17, 2015).14. See id.15. Id.

16. See id.; Loretta Gastwirth, To ADR or Not to ADR: That is the Question, 65 Nassau Lawyer (No. 3) 16, 16 (Nov. 2015).17. Fact-Finding and Discovery, FindLaw, 2015, http://litigation.findlaw.com/filing-a-lawsuit/fact-finding-and-discovery.html (last visited Nov. 17, 2015).18. Abeshouse, supra n.4 at 24.19. See Janet C. Neuman, Run, River, Run: Mediation of a Water-Rights Dispute Keeps Fish and Farmers Happy - For A Time, 67 U. Colo. L. Rev. 259, 309 (1996); Gastwirth, supra n.16 at 16.20. See Am. Express Bank, Ltd. v. Uniroyal, Inc., 164 A.D.2d 275, 277 (1st Dept. 1990) (“Rather

than rewrite an unambiguous agreement, a court should enforce the plain meaning of that agreement.”); Caruso v. HSBC Private Bank, No. 650347/2010, 2015 N.Y. Slip Op 30736(U), ¶¶ 12-15 (Sup. Ct. N.Y. Co. Apr. 29, 2015) (Singh, J.) (denying cross-motion to amend complaint where relevant contract proscribed recovery for consequential and punitive damages); Gastwirth, supra n.16 at 16. 21. See Harriette M. Steinberg & Elizabeth P. Donlon, Using Mediation to Resolve a Will Contest (Maybe Even Before It Happens), 65 Nassau Lawyer (No. 3) 8, 22 (Nov. 2015).22. Brand, supra n.13 (section entitled “Building

a Practice”).23. Ytterberg, supra n.5, at 45.24. See Arran Dowling-Hussey, A Cheaper Way to Solve Disputes, Retail News, May 2014, at 62, 63 (available at http://issuu.com/retailnews/docs/rn_may_2014).25. Gastwirth, supra n.16, at 16.26. See Eugene S. Ginsberg, Eugene S. Ginsberg - Mediator Arbitration Long Island Attorney Nassau County Lawyer, 2015, http://www.eugenesginsberg.com (last visited Nov. 18, 2015).27. Sun Tzu, The Art of War 77 (Samuel B. Griffith trans., Oxford Univ. Press 1971).

MEDIATION ...



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NASSAU ACADEMY OF LAW MARCH 9 Dean’s Hour: Mind Your Manners: Civility and Courtroom Decorum With the NCBA Ethics Committee Sign-in 12:30: Program 1:00-2:00PM 1 credit ethics Hon. Leonard B. Austin, Nassau County Supreme Court, Appellate Division, 2nd Department; Chris G. McDonough, Esq., McDonough & McDonough, Garden City; Omid Zareh, Esq., Chair, NCBA Ethics Committee MARCH 29 Dean’s Hour: Exciting World of Estate Tax Returns & Accountings: Basic Concepts and Litigation Fodder Sign-in 12:30: Program 1:00-2:00PM 1 credit professional practice or skills Patricia C. Marcin, Esq., Frank T. Santoro, Esq., Farrell Fritz, PC, Uniondale MARCH 31 Dean’s Hour: Mystery that is Valuation: Business Valuation of a Merger & Acquisition With the NCBA Tax Law Committee Sign-in 12:30: Program 1:00-2:00PM 1 credit professional practice or skills Pasquale Rafanelli, CPA/ABV, CVA, CBA, ASA, CFE, Valuation Manager, Grassi & Co., Jericho; Noelle Geiger, JD, Chair, NCBA Tax Law Committee APRIL 5 Rise ‘n’ Shine (Out to Lunch) Examination of a Business Valuation Learn what to look for in a business valuation and how to attack any financial expert’s report Lunch 12:30-1:00; Discussion 1-2PM Optional CLE credit available for purchase of $30. Program is free to attend. Must pre-register. Harold L. Deiters III, CPA/ABV/CFF/MAFF, Partner, Baker Tilly LLP, Melville; Joseph A. DeMarco, Esq., Schlissel Ostrow Karabatos PLLC, Garden City

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March We Care Dressed to a Tea to the - Wednesday, March 16 @ 5:00 p.m. $50pp

Featuring dinner, a spring fashion show and unique raffles. Contact: Jody Ratner x226 or

Hon. Elaine Jackson Stack Moot Court Competition - Tuesday & Wednesday, March 22 & 23. Third year law school students battle it out in Appellate Court. Contact: Jennifer Groh x209 or for competition schedule.

Thursday, April 14 @ 6:30 p.m. $35pp Channel your inner Picasso when a professional artist guides you in creating a masterpiece on canvas. Everyone goes home with their own painting. Reservations required. Enjoy an evening of painting, food and wine. Contact: Special Events x226 or [email protected]

Law Day Celebration - Tuesday, May 3 @ 5:30 p.m.

Cocktails and Awards Dinner presenting the Liberty Bell Award, Peter T. Affatato Court Employee of the Year Award and Thomas Maligno Pro Bono Attorney of the Year Award. Contact: Caryle Katz x211 or

117th Annual Dinner Dance - Saturday, May 14 @ 6:30 p.m. $195pp at the Marriott, Uniondale Join us in celebrating

the anniversaries of our 50, 60 and 70 year practitioners and the 2016 Distinguished Service Medallion recipient Senator John R. Dunne, Senior Counsel at Whiteman Osterman & Hanna, LLP, former United States Assistant Attorney General for Civil Rights under

President George H. W. Bush and former Deputy Majority Leader of the New York State Senate. To take an ad in the Dinner Dance Journal or make a Dinner Dance reservation contact: Special Events x226 or

Installation of Officers - Tuesday, June 7 @ 6:00 p.m. New officers and directors of the Nassau County Bar Association and new deans and officers of the Nassau Academy of Law are sworn into office for their terms of service at Domus. Contact: Special Events x226 or

Domus Open Golf Outing & BBQ - Monday, June 20 - Registration 12 noon - Tee-off 1:00 p.m.

Golf $195pp (Foursome $700) / Open Bar & BBQ Only $75pp. An afternoon of golf at Eisenhower "The Red” and BBQ at The Carltun. To register contact: Special Events x226 or

Stephen W. Schlissel WE CARE Golf and Tennis Classic - Monday, July 27 Annual day of golf and tennis followed by dinner. Tam O'Shanter and Mill River Golf Clubs. For pricing contact: Jody Ratner x226 or

WE CARE Mets Games... Details coming soon!

Watch the Nassau Lawyer WE CARE page for dates and times. For information contact: Jody Ratner x226

or jratner@nassaubar

BBQ at the BAR - Thursday, September 8 from 5:30 to 7:30 p.m.

The annual outdoor BBQ at Domus. Contact: Special Events or

Judiciary Night* - Thursday, October 20 at 5:30 p.m. NCBA hosts an evening in honor of all local judges. An opportunity for the bench and bar to mingle away from the courtroom. Contact: Special Events or [email protected]

WE CARE Thanksgiving Day Luncheon for Seniors, Thursday, November 24

To recommend seniors who are alone for this holiday, to make a donation or volunteer to serve contact: Jody Ratner x226 or [email protected]

Gingerbread University* - Saturday, December 3 - Two sessions - 9:30 to 11:30 a.m. and 1 to 3 p.m. Children of all ages decorate their own gingerbread houses. Contact: Jody Ratner x226 or

NCBA Holiday Celebration* - Thursday, December 8 - 6:00 p.m. The annual telling of the “Tale of Wassail” by

the NCBA President-Elect, seasonal entertainment, goodie bags for kids and holiday fare. Contact: Special Events or

*Pricing to be determined Event location is @ Domus, unless otherwise noted

EVENT SOLD OUT!

[email protected]

Canvas and Wine -

$55pp Law Day 2016 Miranda, more than words.

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[email protected]

April

May

August

December

June

September

No Charge.

No Charge.

July

November

October

2016 Special Events of the Nassau County Bar Association There Is Something For Everyone...Mark Your Calendar œ �

For Information call (516)747-4070


CAREER DEVELOPMENT GROUP

The Career Development Group will meet at 12:30 on the last Wednesday of each month at the NCBA. Formerly the Un/Underemployed Group, the Career Development Group will include peer support, a mentoring program, speakers

and presentations on social media and marketing, practice management, career transitions, and niche practices. Please contact Beth Eckhardt, Director of the Lawyer

Assistance Program, (516)512-2618 with any questions about the group. She is always interested in additional

suggestions for relevant topics of interest.

2016 Annual HS Mock Trial Tournament Underway

The Honorable Thomas A. Adams, Administrative Judge of Nassau County, welcomed more than 500 high school students, parents and school officials as the kick off of the 2016 Nassau County Competition in the 2016 New York State Mock Trial Tournament got under way in the Supreme Court. Nassau’s Mock Trial Tournament is a joint initia-tive sponsored by the Nassau County Bar Association, the New York State Bar Association and is hosted by the Nassau County Court System.

The annual tournament allows high school student teams to compete against one another by trying com-plex legal matters before volunteer judges in courtrooms of the Supreme Court in Mineola.

“I would like to thank the Nassau County Bar Association for coordi-nating this wonderful initiative,” said Judge Thomas Adams. “Nassau County judges and the countless attorneys who volunteer their time for this extraordinary initiative are investing in the promising futures of the students who are here tonight.”

The tournament is co-chaired by

NCBA Board member Hon. Marilyn Genoa, NCBA Past President Peter H. Levy and Hon. Lawrence Schaffer and is coordinated by Caryle Katz, NCBA Community Relations Coordinator. Nassau’s tournament is the largest single-county tournament in New York State with 44 Nassau County school districts participating this year.

Nassau County volunteer judges and attorneys advise the high school teams and preside over individual tri-als to provide students with an oppor-tunity to further their understanding of both the content and processes of the legal system. The program pro-vides high school students with an opportunity to gain practical skills needed to work in a professional legal setting, introduces students to the ethics and responsibilities required in practicing law and enables individu-als to apply their education in the law, while under the direct supervision of experienced staff.

The winning team from Nassau County goes on to compete for the New York State championship title in the spring.

(l-r) Administrative Judge of Nassau County, Hon. Thomas A. Adams, commenced the 2016 Mock Trial Tournament by welcoming more than 500 students, teachers and parents to the Nassau County Supreme Court. Co-Chair and NCBA Board Member Hon. Marilyn Genoa, NCBA Community Relations Coordinator Caryle Katz, Co-Chair and NCBA Past President Peter Levy were on hand to also welcome the students.

Photo by Hector Herrera

cising the decanting and to any person having an interest in the invaded trust and the receiving trust, by registered mail, certified mail, personal delivery, return receipt requested or as directed by a court that has jurisdiction over the invaded trust.13 The decanting must be effective thirty days after the date of such service and any person interested in the invaded trust may object to the decanting by serving a written notice of objection upon the trustee exercising the authority to decant prior to the effective date.14 However, the failure to object does not constitute consent.15

The tax consequences of a decanting have not been resolved. The Internal Revenue Service in Notice 2011-101 asked for comments regarding these uncertainties, and in Revenue Procedure 2014-3, the IRS placed decanting on its “no ruling” list for specific income, gift, and GST-tax issues.16 There are signif-icant potential tax issues in decanting that any practitioner should be familiar with to avoid potential missteps. For example, if a beneficiary acquiesces in a reduction of a beneficial interest in a decanting, the beneficiary may have made a taxable gift.17

This concept is further bolstered by the fact that the New York decanting statute provides a beneficiary with a legal right to object to the decanting18 and, thus, an acquiescence or consent would arguably be a voluntary transfer under the Internal Revenue Code section 2511. Similarly, a decanting can cause estate tax inclusion if a beneficiary is deemed to make a gift but the gift was incomplete because of a retained limited

power of appointment.19 With the availability of decanting,

irrevocable no longer means forever. For this reason, it is important for practi-tioners to discuss the potential of decant-ing with grantors to enable a grantor to decide whether to expressly allow for decanting in specific circumstances or to expressly forbid decanting in all or some circumstances. Also, practitioners should discuss with trustees, who elect to decant, the interplay between a fidu-ciary’s duties and a fiduciary’s actions and should take steps to document rea-sons for the trustee’s decisions, whether directly in the body of the receiving trust, in the notice of the decanting, or in a separate paper. And finally, always remember that while anyone can decant, it still requires a comprehensive analy-sis, and so the trust terms, the decanting statute, and the possible tax implications must always be reviewed and carefully considered.

Moira A. Jabir is an Associate in the Trusts and Estates Department of the Long Island office of Moritt Hock & Hamroff LLP and focuses her practice on trust, estate and tax matters.

1. EPTL §10-6.6(h). 2. Id.3. EPTL §10-6.6(b).4. EPTL §§10-6.6(b)(1), (2).5. EPTL §10-6.6(b)(3). 6. EPTL §10-6.6(b)(4).7. EPTL §§10-6.6(c), (c)(1). 8. EPTL §10-6.6(c)(2).9. EPTL §10-6.6(c)(3). 10. EPTL §10-6.6(c)(4). 11. EPTL§ 10-6.6(j).12. Id.13. Id.14. Id.15. Id.16. See Rev. Proc. 2014-3, 2014-1 I.R.B. 111.17. See Tres. Regs. § 25.2512-8, Rev. Rul. 81-264. 18. EPTL §10-6.6 (j)(4).19. IRC §§ 2036, 2038.

DECANT ...



We Care

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

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

Checks made payable to Nassau Bar Foundation-WE CARE

Donor In Honor ofHon. Stacy & Chuck Bennett Michael Mirotznik, 50th birthday celebrationStephen & Meryl Gassman Birth of Landon Ratner, son of Michael RatnerEllen G. Makofsky Emily F. FranchinaJean M. Roncallo Hon. Joseph B. Girardi, InductionJean M. Roncallo Hon. Jack L. Libert, Induction

Donor In Memory ofAdrienne Flipse Hausch Marvin RosenHon. Fred J. Hirsh Frank C. O’Donnell, father of Hon. Colin F. O’DonnellHon. Fred J. Hirsh Kayle Brooke Honigman, granddaughter of Hon. Edmund DaneHon. James P. McCormack Frank C. O’Donnell, father of Hon. Colin F. O’DonnellJean M. Roncallo Hon. C. Albert ParenteLisa Schoenfeld Leatrice Kelly, mother of Deborah KellyLois Schwaeber Hon. Lawrence J. BrackenHon. Denise L. Sher Irene Samenga, mother of principal law clerk, Mary SamengaHon. Arthur D. Spatt Hon. Lawrence J. BrackenJill Stone Donald Tesser

Please Note: Marvin Zevin was incorrectly listed “In Memory of” in the February 2016 issue. We apologize for this oversight.

Questions? Contact Jody Ratner (516)747-4070 or [email protected]

Dressed to a Tea

to the

Wednesday, March 16, 20165:00 p.m. at Domus

SOLD OUT!

Tam O’Shanter Golf ClubBrookville, NY

The Mill River ClubOyster Bay, NY

SAVE THE DATEThe WE CARE Fund

Stephen W. Schlissel Golf and Tennis Classic

Monday, July 25, 2016

Details to FollowFor information contact:

Jody Ratner (516)747-4070 ext. 226 or Ken Marten (516)747-5800

SAVE THE DATETuesday, August 2, 2016

Mets/Yankees Game

Second game to be announced

MORE DETAILS COMING SOON!


Before you do it, is it Ethical?

After you did it, is it Misconduct?

By Omid Zareh

Practitioners in Nassau County ought to be proud of the Nassau County Bar Association’s Ethics Committee and the role it has played in maintaining the high standards of our profession. Not only does the Committee address compli-cated nightmare situations of indi-vidual attorneys, it also educates the entire bar as to how to avoid such dilemmas in the first place. The Committee is tasked with the enormous burden of tackling these conundrums and publishing these findings in an archive so that members of the bar and aca-demia may learn from the Committee’s efforts. The Ethics Committee is a valuable resource for NCBA members. It is comprised entirely of volunteers who selflessly provide advice, educate attorneys, and look out for the interests of the profession and the public.

What is the role of Ethics Committee?

Whether one is a seasoned prac-titioner who has seen it all before or right out of law school, one ought to look to the Ethics Committee. The Ethics Committee provides both formal and informal guidance to attorneys in circumstances where they question

the proper course of conduct under the applicable regulations and laws, including the New York Lawyer’s Code of Professional Responsibility (the “Rules”). The Committee meets these goals in several ways.

The Ethics Hotline One of the lesser known, but incred-

ibly helpful services provided by the Committee, is to be a direct help desk for attorneys’ inquiries about the Rules.

The inquiries are made to the Ethics Committee through telephone (516-747-4070), email ([email protected], put “ethics opinion” in the subject line) as well as tradi-tional snail mail. More informal or urgent inquiries are answered by the volunteers who are on call on a particular week on the phone line or by a mem-ber of the Ethics Committee.

Typical inqui-ries involve how to

handle client funds or escrow accounts, what an attorney is to do when a conflict of interest is discovered, and issues of attorney - client privilege, dis-agreement or discord. While the Ethics Hotline does not handle attorney griev-ances and complaints by clients, it is a tremendous resource for attorneys to attempt to proactively prevent such issues.

The Hotline’s informal or more immediate responses do not necessar-ily get memorialized in written form, but they often provide the inquiring attorney with a practical course of con-duct. At times, all that is necessary is to point the inquiring attorney to the applicable Rules. On other occasions,

By Mary Rita Wallace

The Grievance Committee at the NCBA is one of the hardest working committees yet one of the least understood. We handle hundreds of complaints every year and we serve both the bar and the public with dil-igent and knowledgeable attorneys who volunteer as investigators. There are several frequently asked ques-tions about the Committee that this article will address. Our Committee welcomes any inquiries beyond these basic facts.

What is the Nassau County Bar Association Grievance Committee?

The NCBA Grievance Committee derives its authority to handle com-plaints of attorney misconduct from 22 NYCRR §806.6.

To understand how the Committee operates, it is necessary to distin-guish the NCBA Grievance Committee from the Grievance Committee of the Tenth District of the Appellate Division of the Second Department (Tenth) established pursuant to 22 NYCRR §691.4

The members of the Tenth District are full-time attorneys and investi-gators as well as appointed volun-teer attorneys. In contrast, the NCBA Committee consists only of appoint-ed volunteer attorneys who conduct investigations.

The Tenth District receives all grievances filed against attorneys who have offices in Nassau County. The Tenth refers lesser claims of misconduct to the NCBA Grievance Committee, while processing more serious allegations of attorney mis-conduct. Drastic remedies, including disbarment, can be recommended by the Tenth. The NCBA Committee

can only recommend dismissal or dis-missal with a letter of advisement rec-ommending how the attorney should modify their actions in the future.

What is the possible subject matter of the complaints?

The NCBA Committee only deals with complaints of misconduct and does not address matters involving fee disputes. But the scope of the complaint can be extremely broad. Notably, it can pertain to work done outside the practice of law. As long as the respondent is licensed to practice law in the state and the actions com-plained of “reflect on the reputation of the bar,” the matter will be investigat-ed. So a respondent who buys, sells and manages real estate can be the subject of a grievance whether or not he is practicing law at the time.

It is also worth noting that the definition of what constitutes mis-conduct in the Second Department is more expansive than in the

NCBA’s Ethics Committee is Dedicated to Highest Professional Standards

& Responsibility

Addressing conduct before the factThe Ethics Committee is a resource to the bar, but does not serve as an arm of the NCBA Grievance Committee. Accordingly, attorneys with questions about the Rules should readily use the Ethics Committee’s resources. While the Grievance Committee concerns itself with the propriety of attorney behavior on a post-facto basis, the Ethics Committee attempts to address attorney conduct before the fact (by way of education and Ethics Opinions) or at the time of the deci-sion-making (by way of the Ethics Hotline).

NCBA Grievance Committee Investigates

and Makes Recommendations

See ETHICAL, Page 21 See MISCONDUCT, Page 21

The Tenth District receives all grievances filed against attorneys who have offices in Nassau County. The Tenth refers lesser claims of misconduct to the NCBA Grievance Committee, while processing more serious allegations of attorney misconduct. Drastic remedies, including disbarment, can be recommended by the Tenth. The NCBA Committee can only recommend dismissal or dismissal with a letter of advisement recommending how the attorney should modify their actions in the future.


LAWYER LIT

Rogue Lawyer by John GrishamReviewed by Prof. Anthony Michael Sabino

Colleagues, who among would not be intrigued with a book enti-tled Rogue Lawyer? Now include the added attraction that the author is one of us, lawyer turned author John Grisham, whose legal thrillers (The Pelican Brief, The Firm) are literary and cinematic landmarks.

In addition to the above, the fur-ther attraction to this latest work is how it compares with Grisham’s past novelizations set against the backdrop of our profession. Foremost are these questions: has he gone stale after well over thirty books? Or is Grisham still a master of suspense?

The pleasing answer is that it is unequivocally the latter. Notwithstanding the melodramatic title, and some of the more far-fetched aspects of this novel, Grisham is still very much on the top of his game. Rogue Lawyer is fast paced, engaging, and compels you to turn pages late into the night.

All that said, a few words of fore-warning. Over the years and his many works, John Grisham has increasingly utilized his novels to put forth what are no doubt his personal views, some of them scathingly critical of the legal profession and the judicial system. Grisham fans no doubt recall his ear-lier work, The Appeal, which was an unabashed critique of judicial elec-tions, and a thinly disguised retelling of what in the real world eventually became the 2009 Supreme Court case Caperton v. A.T. Massey Coal. Do not be put off by this. The opening chap-ters provide a rousing start to Rogue Lawyer and irresistibly urge you to read on.

Rogue Lawyer opens with bombast; Sebastian Rudd, the title character, first provides an overview of a law practice so dangerous, so extraordi-nary, that he has no fixed office, has a bodyguard, and carries a gun because every side of the law — gangster cli-ents, corrupt cops, and vengeful judges — want him dead or worse. It is a bit maniacal, but hold on — it gets even better, and quickly.

Notably, it is told in the first person. To be sure, the majority of Grisham’s 3 other works (The Firm, The Appeal, The Associate), were told in the more traditional style. Notwithstanding some initial skepticism, the first per-son device proved to be quite effective.

Make no mistake. Attorney Sebastian Rudd is the classic anti-hero (reminiscent of the Marvel charac-ter Deadpool). Rudd is arrogant, an ethical nightmare, and, by his own admission, thoroughly unlikeable. Yet Grisham succeeds in making Rudd a starkly effective platform to rail against injustices and corruption, both inside and outside the legal system.

This is exemplified in the some-what fanciful, but nonetheless engag-ing, three opening scenarios of Rogue Lawyer. The novel opens with Rudd in the midst of defending a low-life that is innocent of the charge of murdering two young girls, yet is being railroaded by the authorities. Here Grisham goes to the mat against cops and prosecu-tors only concerned with an easy win,

a local jury out for blood but not the truth, and an entire town that wants to hang the lawyer alongside his client.

We quickly segue to Scene Two, where Rudd bears witness to the escape from death row of a differ-ent client, this one a ruthless crime lord minutes away from his execution. Putting aside a nearly cartoonish pris-on break, and the fact that Grisham fully avails himself of the opportunity to express what is no doubt his per-sonal loathing of capital punishment, you are still left with a cautionary tale of the risks of representing a vicious murderer that is just as willing to kill his defense lawyer as he was to murder his criminal rivals.

For his third preliminary subplot, Grisham launches a diatribe against the use of paramilitary tactics by the police, and the cover-up of same by corrupt politicos and police brass. The vehicle is a trigger-happy SWAT team that kills an elderly woman in a botched house raid, and the sub-sequent prosecution of the woman’s husband for the attempted murder of a police officer because he took a shot at what he thought was a home invad-

er. Our Rogue Lawyer is called in to defeat the scurrilous charge against the grieving widower, and bring a civil suit against the police. Rest assured justice is served, and in grand style.

As to this subplot, tantalizing here is that Grisham has neither lost his touch for drama, nor has he forgot-

ten what it is like to litigate a high profile case. It is an intriguing study in demolishing contrived testimony via cross-examination, bare-knuckle settlement tactics, and a few other skills that attorneys might hesitate to call upon, but sometimes must, in the interests of justice.

Grisham is in fine form here. To be sure, he paints a somewhat outra-geous, if not at times outright insulting picture of police, prosecutors, defense lawyers, and judges at their worst. And the protagonist is no angel either, as Grisham exposes Sebastian Rudd in all his obstinacy and self-righteous-ness.

Yet is that not the definition of an anti-hero — a character you hate, but you root for anyway? Those are precisely the feelings that Grisham invokes in the reader, and he does it masterfully. The use of the first person narrative proves to be quite cunning, as Grisham skillfully maneu-vers Sebastian Rudd through multiple self-examinations of his own shortcom-ings, foremost his failure as a father to his son from a ill-fated marriage (as an aside, Rudd’s ex-wife is a hard charging litigator herself, and while their interaction is brief and almost operatic, it reminds us that we lawyers are spouses and parents too, and often all too human ourselves in those roles).

The truly good news, which makes Rogue Lawyer worthwhile reading, is that all of the foregoing is merely the “set up” to the main story! These first three fast paced laps around the track exposit the protagonist’s, shall we say, unique practice of law, and, equally important, just what a vile character he can be. Nevertheless, one cannot help but start to grudgingly root for the anti-hero, because his all too human frailty makes him believable.

It is only then that John Grisham accelerates Rogue Lawyer to break-neck speed, as Sebastian Rudd races not only to save his law practice, but his soul.

In conclusion, most of us have no desire to be rogue lawyers (hmm, then again), but it is compelling to read about one (and imagine). Rogue Lawyer is a worthwhile, satisfying, and just plain enjoyable read. Have fun.

Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C. specializes in com-plex business litigation in the federal courts, including white-collar criminal defense, securities litigation and arbitration, and serves as a FINRA arbitrator. He is also a Professor of Law at the Tobin College of Business, St. John’s University, and a spe-cial adjunct professor of law at St. John’s School of Law. He can be reached at [email protected].

Rouge LawyerAuthor: John Grisham2016DoubledayHardcoverList price: $17.37

Is that not the definition of an anti-hero — a character you hate, but you root for anyway? Those are precisely the feelings that Grisham invokes in the reader, and he does it masterfully.


follow up questions and deliberation with other Committee members may be necessary to help guide the inquir-ing attorney. Hundreds of such helpful advisories occur annually.

Formal Ethics OpinionsThe Ethics Committee also serves

to promulgate more formal responses as Ethics Opinions. There is no pre-scription for which topics or inquiries will result in Ethics Opinions. The Ethics Committee, as a whole, deter-mines which opinions merit a formal Ethics Opinion. Ethics Opinions stem from inquiries that require a lengthier response, are complicated in their fact pattern or analysis, or have no clear-cut conclusion. Still others address an interesting point of law or provi-sion of the Rules. The Committee also will write Ethics Opinions where a Committee member has raised an issue of significance and the rest of the Committee’s members agree a formal opinion ought to be drafted. Typically, the opinion then is drafted by a Committee member, circulated to the entire Ethics Committee for feedback, and discussed at the next meeting, where it often is voted on and, hopefully approved.

These Ethics Opinions are a treasure trove of responses to some of the most difficult (and therefore interesting) inquiries posed to the Ethics Committee over the decades. Now, for the first time, they on our website available to the public and electronically search-able. These opinions are often cited as guidance by practitioners, academics and treatises throughout the country.

Continuing Legal EducationIt is no easy task to simultaneously

program for both experienced prac-titioners, as well as newly admitted attorneys. Nevertheless, the Ethics Committee attempts to provide profes-sional responsibility education to all members of the bar.

Presently, the Ethics Committee is putting on a series of Professional Responsibility CLEs to assist less experienced attorneys. The brainchild of co-presenter Chris McDonough, this series has discussed such topics as client retention, engagement letters, attorney escrow accounts, and what to do when faced with a grievance com-plaint.

The Ethics Committee also has presented panels for the profession-al responsibility implications of more substantive areas of law, and to wider topics of interest. For example, for the first time, the Ethics Committee tendered a panel discussion with the

Academy Award winning director of the movie (Dis)Honesty- the Truth about Lies, after a viewing of the film, and offered CLE credit to attendees.

The Ethics Committee is NOT the Grievance Committee or Lawyers’ Assistance Program.

The Ethics Committee is a resource to the bar, but does not serve as an arm of the NCBA Grievance Committee. Accordingly, attorneys with questions about the Rules should readily use the Ethics Committee’s resources. While the Grievance Committee concerns itself with the propriety of attorney behavior on a post-facto basis, the Ethics Committee attempts to address attorney conduct before the fact (by way of education and Ethics Opinions) or at the time of the decision-making (by way of the Ethics Hotline).

Further, while the Ethics Committee assists attorneys with respect to the Rules and best practices, it does not assist with matters of attorney mis-conduct or other improper behavior due to addiction, mental illness, or other similar issues. The latter sce-narios are very capably addressed by NCBA’s excellent Lawyers’ Assistance Program. While this program and these Committees complement one another, they are not the same.

The Bigger PictureThe Ethics Committee also is called

upon for other diverse matters. For example, the Committee was asked to provide feedback on proposed leg-islation affecting attorney conduct or matters affecting the applicability or enforcement of the Rules. The Ethics Committee also may be called upon to answer questions by other Committees at the Bar Association. Finally, the Committee has in the past, and invites future opportunities, to make presen-tations to other NCBA committees spe-cifically geared toward the common ethical concerns of those areas of law.

The members of the Ethics Committee are active, sensitive to attorneys’ needs, and generous with their time. They are to be commended for their efforts, and I am honored to be able to call on such a pool of talent.

The NCBA Ethics Committee pro-vides free inquiry services to any mem-ber who needs guidance in any ethical issue. Members are encouraged to con-tact the Ethic Hotline by calling NCBA at 516-747-4070, email [email protected] and put Ethics Opinion in the subject line, or write to the Bar. New Committee members always welcome.

Omid Zareh is the Chair of the NCBA Ethics Committee. He is also a founding partner of Weinberg Zareh & Geyerhahn, LLP.

First Department. In the Second Department, an attorney is deemed guilty of professional misconduct in this department for failure to conduct oneself “either professionally or per-sonally, in conformity with the stan-dards of conduct imposed on members of the bar as conditions for the privi-lege to practice law.” Judiciary Law § 90(2),

Who can file a grievance?Anyone who has had dealings with

an attorney can file a grievance with the Tenth. There is NO requirement for an attorney-client relationship between a respondent and complainant. So an attorney can be the subject of a grievance without an attorney – cli-ent relationship with the complainant. Attorneys and judges can file grievanc-es.

Who can be a respondent?Any attorney working in Nassau

County, including lawyers who main-tain an office here as well as those who participate in court appearances, appearing pro hac vice or not. 2d Dep’t R. § 691.1(a).

How is the grievance initiated?All grievances are referred to the

NCBA Committee from the Tenth District. There is no required form and it can be typed or hand-written. It does not have to be verified. A copy of the complaint will be served on the respondent by the NCBA Committee.

When does the attorney have to respond?

Within fifteen days from the date of such notification – not the date of the receipt.

Is there a required form for the response?

No. There is no standard form for a response and it does not need to be verified.

Are there service requirements for the response?

YES. The respondent must give the NCBA Committee two copies of the written response along with sup-porting documentation. Service is to be done personally or by certified mail.

The respondent must also mail a copy of all the papers to the com-plainant and the response to the NCBA Committee must contain an affirmation/affidavit of mailing.

Can the complainant reply to the response?

YES. This is optional. The NCBA Committee advises the complainant that she must reply within two weeks of receipt of the response. The com-plainant needs to send the reply to the NCBA Committee and mail a copy to the respondent. If the complainant fails to file a reply within this period, the matter is processed without it.

What happens next?When all the documents are

received, the NCBA Grievance Committee chair and vice-chairs review them and decide: 1) whether to investigate the claim and if so, 2) which Committee member to assign as the investigator. Investigators are chosen based on the type of legal prac-tice involved in the complaint.

The investigator can meet with the parties, conduct telephone interviews and/or review the documents. The investigator then drafts a fact-finding report with a recommendation for res-olution. The Chair performs the final review.

Is the respondent told of the outcome?

YES. The respondent and the com-plainant are advised in writing that the complaint has either been dis-missed or that the respondent receives a letter of advisement. In either case, there is no record of the outcome kept by the NCBA Committee.

Can a grievance be withdrawn by the complainant during the process?

NO. Once filed, a grievance will be acted upon. If the complainant seeks to withdraw the complaint, the inves-tigation continues regardless .The concern here is that a complainant would be pressured by a respondent to withdraw the complaint. The fact that the complainant wants to with-draw a complaint is something that will be considered by the investigator in his final recommendation.

Is the grievance process confidential?

YES. The process is strictly con-fidential. When the investigators complete their evaluation, they must return the entire file to the NCBA Committee. Investigators are cau-tioned to rely on minimal support staff who are discreet and responsible.

What should I do if I receive a grievance?

This will be the subject of a sub-sequent article. In the meantime, should this happen, please call us at the Committee (516-747-4070) and we will be pleased to help you with any questions or concerns.

Mary Rita Wallace is the Chair of the NCBA Grievance Committee and an attorney at Duffy &Duffy PLLC.

ETHICAL ...


MISCONDUCT ...


n NCBA ETHICS OPINIONS

Ethics Opinion 2015-1Out-Of-State

“Federal”Practice Attorneys

in New YorkA newly released opinion from the

NCBA Ethics Committee has deter-mined that out-of-state immigration lawyers who are not admitted to prac-tice in New York State may practice and advertise in the jurisdiction so long as they advise only on Federal immi-gration matters. These attorneys may advertise their practices in New York as long as it is made clear that that they are not members of the New York bar. Although the opinion pertains to an attorney practicing in the field of immigration law, it has far-reaching implications for all aspects of Federal legal practice within the jurisdiction.

“The out-of-jurisdiction attorney may advise and represent exclusively on Federal immigration laws, but must only remain in this limited capacity, and must coordinate with a member of the New York bar about the New York- related consequences of the Federal practice so as to properly advise the client,” NCBA Ethics Opinion 2015-1 states. “The attorney also may adver-tise services, so long as all other adver-tisement requirements under the Rules of Professional Conduct are adhered to, and the attorney makes proper disclo-sures so as to inform the public of the limited nature of the practice at issue.”

The complete Ethics Opinion 2015-1 is available online at www.nassaubar.org.


NCBA Committee Meeting Calendar • March 15 - April 14, 2016Questions? Contact Stephanie Pagano (516) 747-4070 [email protected]

Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.Check website for updated information: www.nassaubar.org

GENERAL/SOLO/SMALL FIRM PRACTICE Tuesday March 15, 2016 12:30 p.m. Gary Port

NEW LAWYERS Tuesday March 15, 2016 6:30 p.m. Michael DiFalco/Jennifer Koo

VETERANS & MILITARY LAW Tuesday, March 22, 2016 12:30 p.m. Steven Raiser

TAX LAW Wednesday, March 23, 2016 8:30 a.m. Noelle Geiger

WOMEN IN THE LAW Wednesday, March 23, 2016 12:30 p.m. Martha Haesloop

CRIMINAL COURT LAW & PROCEDURE Wednesday, March 23, 2016 12:30 p.m. Andrew Monteleone

DOMUS OPEN Thursday, March 24, 2016 12:30 p.m. Dan Russo

SURROGATES COURT ESTATES & TRUSTS Thursday, March 24, 2016 5:30 p.m. John Graffeo/Lori Sullivan

PLAINTIFF’S ROUND TABLE Thursday, March 24, 2016 6:00 p.m. Terrence Tarver

INTELLECTUAL PROPERTY Monday, March 28, 2016 12:30 p.m. Ariel Ronneburger

REAL PROPERTY Tuesday, March 29, 2016 6:00 p.m. Mary Mongioi/Kevin McDonough

ELDER LAW SOCIAL SERVICES & HEALTH ADVOCACY COMMITTEE Tuesday, March 29, 2016 6:00 p.m. Saundra Gumerove/Maureen Rothschild DiTata

COMMERCIAL LITIGATION Wednesday, March 30, 2016 12:30 p.m. Thomas McNamara

CIVIL RIGHTS Wednesday, March 30, 2016 12:30 p.m. Jason Starr

CORPORATION BANKING AND SECURITIES LAW Thursday, March 31, 2016 12:30 p.m. Kate Heptig

ETHICS Monday April 4, 2016 5:30 p.m. Omid Zareh

APPELLATE PRACTICE Tuesday, April 5, 2016 12:30 p.m. Richard Langone

HOSPITAL & HEALTH LAW Thursday, April 7, 2016 8:30 a.m. J. Kemp Hannon

COMMUNITY RELATIONS & PUBLIC EDUCATION Thursday, April 7, 2016 12:45 p.m. Ira Slavit

SENIOR ATTORNEYS Tuesday, April 12, 2016 12:30 p.m. Bruce Hafner

DISTRICT COURT Tuesday, April 12, 2016 12:30 p.m. Mitchell Hirsch

LABOR & EMPLOYMENT LAW Tuesday, April 12, 2016 12:30 p.m. Jeffrey Schlossberg

EDUCATION LAW Wednesday, April 13, 2016 12:30 p.m. Candace Gomez

CRIMINAL COURT LAW & PROCEDURE Wednesday, April 13, 2016 12:30 p.m. Andrew Monteleone

ASSOCIATION MEMBERSHIP Wednesday, April 13, 2016 12:45 p.m. Marc Gann/Geoffrey Prime

MATRIMONIAL LAW Wednesday, April 13, 2016 5:30 p.m. Rosalia Baiamonte

TECHNOLOGY & PRACTICE MANAGEMENT Thursday, April 14, 2016 8:30 a.m. Deborah Kaminetzky

PUBLICATIONS Thursday, April 14, 2016 12:45 p.m. Christopher DelliCarpini

Ne w La w y e r of th e MoN th

Jamie A. Rosenby Andrea Brodie

The New Lawyers Committee is proud to honor Jamie A. Rosen as the New Lawyer of the month.

Ms. Rosen works at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP where she is an associate in the Mental Health law practice. Ms. Rosen represents cli-ents in mental hygiene law matters such as Kendra’s Law (Assisted Outpatient Treatment), involuntary psychiatric treatment and retention, mental health warrants, adult guardianship proceedings and other civil litigation and negotiations specific to mental health issues.

Ms. Rosen graduated cum laude from the Honors College at the University of Maryland with a B.A. in Psychology, Criminology and Criminal Justice in 2010.

In 2013, Ms. Rosen graduated from the Maurice A. Deane School of Law

at Hofstra with a concentration in Child and Family Advocacy. She was an Associate Editor of the Hofstra Law Review and Vice President of the Hofstra Trial Advocacy Association. During law school, Ms. Rosen also clerked for a Family Court Judge at the Nassau County Family Court, worked at a prom-inent family law boutique firm and served as a mediator in custody disputes and PINS diversion cases through Hofstra’s Mediation Clinic.

Ms. Rosen is admitted to practice in the States of New York and New Jersey. Ms. Rosen is an active member of the Nassau County Bar Association,

including the New Lawyers Committee, Hospital and Health Law Committee and the Steven J. Eisman New Lawyer/Judiciary Relations Task Force. She is also a Guest Editor for the Family Court Review Special Issue on Mental Illness to be published in January 2016. Ms. Rosen also contributed to numerous articles that are published in professional journals and newspa-pers, including: Nassau Lawyer, NYSBA Health Law Journal, The Journal of Criminal Law and Criminology of Northwestern University School of Law, Family Court Review, NYSBA Family Law Review, the New York Law Journal and The Risk Management Quarterly.

The New Lawyers Committee congratulates Ms. Rosen on her accom-plishments and contributions to the community and wishes her continued success in her endeavors.

Andrea M. Brodie, Esq. is an associate at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP and the immediate past Chair of the New Lawyers Committee.


Ruskin Moscou Faltischek, P.C. announced today that partner Jennifer Hillman, a member of the firm’s Trust and Estates Department, was selected by Long Island Business News for inclu-sion in their elite 40 Under 40 Class of 2016, an annual tribute to Long Island’s best and brightest.

Evan H. Krinick, Managing Partner of Rivkin Radler LLP, has announced that Ada Kozicz has joined the firm as Associates in the Health services Practice Group resident in the Uniondale office.

The law firm of Garfunkel Wild, P.C. (GW) is pleased to announce a number of promotions within the firm including NCBA members Eve Green Koopersmith, chair of the firm’s Discharge Planning and Elder Law Practice Group and Christina Van Vort, member of the Business, Finance and Real Estate, Health Care, Health Care Information and Technology, HIPAA Compliance, and Insurance Regulatory Practice Groups, who have been named partner/directors. Attorney Justin M. Vogel, a member of the Litigation and Arbitration, Appellate Litigation, Employment Law, and Environmental Practice Groups has been named a part-ner of the firm.

Brian Andrew Tully, Founding Partner of Tully & Winkelman, P.C., has announced the firm has released a new guidebook, which provides valuable information for adults on how they can plan for their elderly parents as they age: “How To Plan For Aging Parents 2016.”

Rachel Scelfo has joined the Land Use and Zoning Practice Group at Certilman Balin Adler & Hyman, LLP as Counsel. She is located in the firm’s Hauppauge office.

Deborah G. Rosenthal of Rosenthal, Attorneys at Law, P.C., has been nomi-nated to serve as President of the New York Women’s Bar Association for a term that commences on June 1, 2016.

Collins, McDonald and Gann, the longtime criminal defense and regulatory law firm co-founded more than 25 years ago by former Nassau County Assistant District Attorneys Rick Collins, Bob McDonald and NCBA Past President Marc Gann, has expanded the firm. Now known as Collins Gann McCloskey & Barry PLLC, the firm has added two new partners, Gerard McCloskey and

David Barry, who replace Bob McDonald upon his election as a New York State Supreme Court Justice. The firm has expanded into a number of new practice areas -- including Elder Law and Personal Injury Law -- forming strategic partnerships with

a number of attorneys both locally and nationally as part of the firm’s major expansion and will continue to work with California lawyers in the area of dietary supplement and FDA law.

As of January 2016, the New York State Bar Association re-elected NCBA and NYSBA Past President A. Thomas Levin as Vice-Chair of the International Section, a position he has held since 2004. He will also continue as a member of the Executive Committee of the Local and State Government Law Section, and as Trustee, Counsel and member of the Executive Committee of the Historical Society of the New York Courts.

Karen Tenenbaum, tax attorney of the Melville law firm, Tenenbaum Law, P.C., has been nominated for the Future 50 Awards program under the Emerging Growth category as a Long Island busi-ness leader.

Madison Porzio has joined Lake Success-based Vishnick McGovern Milizio LLP in the firm’s Trusts and Estates Practice Group. Ms. Porzio con-centrates in the areas of Trust and Estate Administration, Trust and Estate Litigation and Estate Tax Planning.

The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, events and recent accomplishments of its members. All submissions must be made as Word documents. Due to space limitations, submissions may be edited for length and content.

The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to repre-senting attorneys for nearly 35 years, Ms. Rice is a Past President of NCBA.

PLEASE E-MAIL YOUR SUBMISSIONS TO: [email protected] with subject line: IN BRIEF

ASSOCIATION NEWS

We welcome the following new members

NCBA New Members

AttorneysNatasha Singh Agarwal

Sunil K. Agarwal, P.C.

John W. Barker

Vigorito, Barker, Porter

& Patterson, LLP

Gregory H. Cayne

Rivkin Radler LLP

Dmitriy Chernyy

Goldberg Segalla, LLP - Garden City

Sarah A. Chussler

Miller & Milone, PC

Anthony C. DiPaolo

The Law Offices of DiPaolo &

DiPaolo, LLP

Krista C. Giannattasio

Goodwin Procter LLP

Scott Evan Gross

Larry R. Mergentime

Rosenberg & Estis, P.C.

Mary E. Murray

Christine Settineri

Wisselman, Harounian & Associ-

ates, P. C.

Michael D. Siff

StudentsSavanna Arabi-Katb

Friday, Richard L. Catalano

Estrella Cedillo

Danielle Greco

Michael Hassard

Douglas Rockitter

Kaila Marie Rodriguez

Brandon Ross

Allaina B. Sines

Kevin Waszak

in Brief

Marian C. Rice

Nassau County Bar Association members Acting County Court Judge Anthony Paradiso (r) and former Floral Park Acting Village Justice Bill Corbett (l) received Certificates of Appreciation for 20 years of service from Lion District Governor Tejinder S. Anand, as former Floral Park Mayor and Lion Ann Corbett looks on at a recent dinner meeting at the Swan Club in Glenwood Landing. Judge Paradiso is for-mer Lions District Governor.

LAWYERS’ AA MEETINGNassau County Bar Association

1st Wednesday of the month

For more information call516-512-2618


NCBA

Sustaining Members2015 - 2016

Hon. Merik R. AaronMartin P. AbruzzoMary Ann Aiello

Mark E. AlterJames P. BarrettErnest T. Bartol

Jack A. BennardoJames D. Bennett

Neil R. CahnRalph A. Catalano

Alan W. ClarkLeonard S. ClarkRichard D. CollinsAnthony C. Curcio

James C. DalyJoseph G. Dell

Alfred DiGirolomo, Jr.John P. DiMascioSteven J. Eisman

Charo Ezdrin Howard S. Fensterman

Samuel J. FerraraPatrick Formato

Lawrence R. GaissertDomingo R. Gallardo

Marc C. GannLouise E. GenussaEugene S. Ginsberg

Frank Giorgio, Jr.John J. GiuffreDavid M. GlickLisa Golden

Avigail GoldglanczDouglas J. Good

Hon. Frank A. Gulotta, Jr.Andrew J. Hirschhorn

H. William Hodges

Alan B. HodishJames P. JosephElena KarabatosElizabeth S. Kase

Stephanie M. KeatingHon. Susan T. Kluewer

Martha KriselDonald F. LeistmanJonathan C. LernerSteven G. Leventhal

James N. LicalziGregory S. LisiGloria Lomeli

Robert G. LucasPeter J. Mancuso

Michael R. MartoneRobert A. McDonald

John P. McEnteeChristopher T. McGrath

Christina G. MiloneAnthony J. Montiglio

Linda G. NanosHon. Michael L. Orenstein

Joseph J. PerriniGary PetropoulosKenneth J. Ready

Joan Lensky RobertEdward T. Robinson

Anne RosenbachLee Rosenberg

Hon. Marie G. SantagataStephen W. SchlisselHon. Peter B. Skelos

Ira S. SlavitHon. Arthur D. SpattMichael F. Sperendi

Jill C. StoneJoseph B. Strassman

Sanford StrengerRobert G. Sullivan

Hon. Joy M. WatsonDana L. White

Elliot C. WinogradGerald P. Wolf

Kathleen Wright

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

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

become a Sustaining Member. The NCBA is grateful for these individuals who

strongly value the Nassau County Bar Association’s mission and its contributions for

the betterment of the legal profession.

To become a Sustaining MemberPlease contact the NCBA Membership Office

(516)747-4070

We’ve Made Your Job Search Easier!Career Center Expands Services

Attorneys Associates Paralegals Legal Secretaries

Administrative Interns Expert Witnesses Finance

Consultants Marketing Office services Recruiters

NCBA CAREER CENTER www.nassaubar.org

Long Island’s Only Online Job Board For The Entire Legal Profession

Another community Service from the Nassau County Bar Association

By Valerie Zurblis

Two new services, TalentBoost and Resume Critique, are now available at the NCBA Career Center, Long Island’s only online job board specific to the legal industry. TalentBoost and Resume Critique are designed to make the Career Center even more valuable as a career development tool for those looking for employment, and serve as the gateway for employers to hundreds of additional job listing sites.

The NCBA Career Center connects job seekers with prospective employers in the legal industry. The job board can be found at www.nassaubar.org. Access is available to NCBA members as well as all members of the public looking for employment in the legal industry, including lawyers, parale-gals, secretaries, office help, etc. All those looking for employment can use the service for free. Employers listing positions pay just $99, much lower than other job boards. The benefit for NCBA members is that they can now see job postings a few days before they are opened to the general public.

With the new Resume Critique ser-vice, job seekers on the site now have the option to request a free, confiden-tial resume evaluation from a profes-sional resume expert and writer from TopResume, a leader in the resume/career coach industry. Within 48 hours of requesting an evaluation, a detailed, custom email will be sent outlining the resume’s specific strengths, weakness-es and suggestions to improve chances of landing an interview.

For those who are searching for candidates, TalentBoost makes it even easier to expand your reach. By using the NCBA first to post jobs, employers can upgrade for an extra $199 and have their jobs automatically listed on hundreds of other sites within the same niche without spending the time to post and pay for each site individ-ually.

“The Nassau County Bar Association is the source for legal information for Long Island,” said NCBA President Martha Krisel. “Enhancing our online career center for professionals in our field—and in our geographic region—is a natural extension of that mission. We are doing what we can as an asso-ciation to help legal professionals who are out of work or underemployed, as well as assisting employers fill legal positions.”

The Career Center exclusive bene-fits continue to:

• provide more legal job opportu-nities all on one site for mem-bers looking for work

• allow job seekers to post anon-ymous resumes, which employ-ers can view

• set up job alerts • cost less than other job boards• free up staff time - everything is

done online automatically• easily upgrade to promote open-

ings to hundreds of sitesIt’s win-win situation for all

involved! The Career Center is locat-ed on the NCBA website, nassaubar.org, and click on any tab on the left for Jobs.


LAW YOU SHOULD KNOWLAW YOU SHOULD KNOW

LAW YOU SHOULD KNOW

Hosted by: Kenneth J. Landau, Esq.Shayne, Dachs, Sauer & Dachs, LLP Mineola•

on 90.3 FM WHPCCelebratong 25 Years!

On 90.3 FM radio or voicestream over the internet at www.ncc.edu/whpcor listen on your smartphone with radio app Tunein.com

*You can earn CLE by listening to (or purchasing Cd’s) of these shows. Check with the

Nassau Academy of Law for the details (516)747-4464 or www.nassaubar.org

Mon • March 21, 2016 • 4 p.m.or Tues • March 22, 2016 • 1 p.m.or Sun • March 27, 2016 • 7 a.m.

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The Safe Center LI (“TSCLI”) is proud to recognize Maureen McLoughlin as the Nassau Lawyer March Pro Bono Attorney of the Month. She is being honored for the work she does with victims of abuse and her myriad other volunteer activ-ities.

She received her JD from St. John’s School of Law in 2002 which she attended at night while working full-time. Having first completed a Masters in Social Work in1982 from Fordham University School of Social Services she spent the majority of her career with the Nassau County Department of Social Services. From 1991 – 2011 she served as Director of Child Protective Services (“CPS”) where she was responsible for the investigation and management of over 7,000 reports annually of Child Abuse and Maltreatment received from the

NYS Child Abuse Register. She was honored for her years of service as the 2010 New York State Social Worker of the Year.

Ms. McLoughlin retired from CPS in 2011 and embarked on her legal career as a solo practitioner special-izing as an Attorney for the Child (“AFC). In that capacity she has rep-resented over 300 children in Custody/Visitation, Orders of Protection, Child Abuse and Neglect and PINS proceed-ings in the Nassau County Family and Supreme Courts. She also handles immigrant children guardianships and special findings work as an AFC. Her background with CPS makes her uniquely suited to handle these types of matters and her pro bono work with TSCLI clients.

Shortly after opening her practice, Ms. McLoughlin attended a domestic abuse matrimonial training given by our agency which was then known as the Nassau County Coalition Against Domestic Violence and immediately requested a case. She subsequently

accepted five assignments. Her first divorce case was recently settled and the divorce packet has been filed with the Matrimonial Clerk. In addition to consultations and direct represen-tation of TSCLI clients, she’s also available to TSCLI staff attorneys and other pro bono attorneys who need guidance regarding CPS issues. Maureen is always more than willing to lend her expertise to those who seek it and we are fortunate to have such an expert a mere email or phone call away.

Among her other volunteer work, Ms. McLoughlin serves as co-chair of the Nassau County Women’s Bar Association (“NCWBA”) Pro Bono Clinic held at the Mary Brennan INN in Hempstead. She has also recruited her colleagues to volunteer there as well. In 2014 she was awarded the Virginia Duncome Award from the NCWBA for her work with the Clinic.

Ms. McLouhglin is member of numerous professional organiza-tions, both in the legal and social work fields. She currently serves as Treasurer of the Nassau County Women’s Bar Foundation and belongs to the Nassau County Bar Association, where she is involved in many com-mittees, the Nassau County Women’s Bar Association, the Women’s Bar Association of the State of New York and the New York State Bar Association. While with CPS she served as the Liaison to the Nassau County Family Court, and as a mem-ber of the Bi-County Task Force of the New York State Office of Prevention of Domestic Violence and the County Executive’s Domestic Violence Task Force. In addition to her legal practice and volunteer activities, Ms. McLoughlin is also an Adjunct Professor at Hofstra University and a lecturer at Molloy College.

Ms. McLoughlin’s stated objec-tive on her resume is to “Integrate Knowledge of Child Welfare and Social Services Law by utilizing both Legal and Social Work Education and Experience”. It is clear that she has met and exceeded her objective pro-viding excellent representation and peace of mind to those members of our community who need it the most. As a small token of our admiration and appreciation, we are privileged to recognize Ms. McLoughlin as the Pro Bono Attorney of the Month.

Gail Broder Katz, Esq. is the Pro Bono Project Coordinator for The Safe Center LI (formerly Nassau County Coalition Against Domestic Violence.) She can be contacted at [email protected] or 516-465-4700 for information about the Project and how you can help.

Local legislators came to the Nassau County Bar Association in February to learn more about current immigration laws and programs and services available for immigrants at an informative breakfast meeting hosted by the Community Relations and Public Education Committee. (l-r) Christina M. Gaudio, Esq. Legal Aid Society of Suffolk County, Inc.; Jason Starr, Esq., NY Civil Liberties Union, Nassau Chapter; Thomas Maligno, Esq., Touro Law Center; Victoria Starrett, Esq., Legal Aid Society of Nassau County;. Theo Libermann, Esq., Hofstra Law School; Carmen Maquilon, Catholic Charities; Lois Schwaeber, Esq., The Safe Center LI; Linda Nanos, Esq., Vice Chair NCBA Immigration Committee; Steven G. Leventhal, Esq., NCBA Vice President; Patrick Young, Esq., Central American Refugee Center (CARECEN); and, Ira S. Slavit, Chair, NCBA Community Relations & Public Education Committee.(Photo by Hector Herrera)

MAUREEN McLOUGHLINBY GREG T. FISHKIN

Pro Bono Attorney of the Month

NCBA Updates Legislators on Services for Immigrants

Ms. McLoughlin’s stated objective on her resume is to “Integrate Knowledge of Child Welfare and Social Services Law by utilizing both Legal and Social Work Education and Experience”. It is clear that she has met and exceeded her objective.


CommiTTee reporTs

Plaintiff’s Round TableMeeting Date: 2/4/16Chair: Terrence L. Tarver

The February 2016 com-mittee meeting was held in conjunction with the Nassau Academy of Law, co-sponsoring a CLE pro-gram entitled “Navigating ERISA, Medicare, & Medicaid Liens In Personal Injury Cases.” The pre-sentation was given by Joan Robert, Esq., and John Tomsky, Esq., who discussed various topics, including the basics of Medicaid, Medicare, and ERISA Liens and the steps needed to address issues that arise regarding each for personal injury practitioners.

The upcoming meeting, sched-uled to be held Thursday, March 24, 2016, at 6 p.m., will be a general body meeting to discuss matters of interest including proposed legisla-

tion amending the CPLR to establish a comparative negligence standard for claims under Labor Law Sections 240 and 241 with respect to recalcitrant workers.

The Committee Reports col-umn is compiled by Michael J. Langer, a partner in the Law Offices of Kenneth J. Weinstein, P.C. Mr. Langer is a former law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County

Attorney in the Office of the Nassau County Attorney. Mr. Langer’s practice focuses on matrimonial and family law, criminal law and general civil litigation.

Michael J. Langer

For Nassau Lawyer

Thank you to our Corporate Partners 2015-16

Business, Personal, Medical, Life, Professional Liability Insurance

A D V E R T I S E I N T H E

Call (631)

737-1700

[email protected]

A D V E R T I S E I N T H E

Call 631-737-1700 l [email protected]

Please join us to celebrate and recognize those law firms, solo practitioners and individuals

who have performed exemplary pro bono service to the community this past year at

The Second Annual

Pro Bono Recognition Cocktail Reception

Wednesday, April 6, 20165:30p.m. - 7:30p.m.


Please RSVP to Cheryl Cardona at(516)747-4070 x231 or [email protected]

CONFIDENTIAL HELP IS AVAILABLE TO LAWYERS AND JUDGES

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The J of n CounTy Bar assoCiaTion March 2016 … · Hon. Elaine Jackson Stack ... Sabino Page 20...

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