albany county bar association...tion of an attorney. the olp should not be permitted to limit this...

PRESIDENT’S MESSAGE

NEWSLETTER

ALBANY COUNTY BAR ASSOCIATION

WHAT’S INSIDE:

December 2017 | A Publication of the Albany County Bar Association

Continued on page 2

JAMES E. HACKER, ESQ.E. Stewart Jones Hacker Murphy LLP

[email protected]

In October 2015 the American Bar Association launched a partnership with Rocket Lawyer, a company backed by Google Ventures, that takes a mass marketing approach to helping con-sumers consult with lawyers and create legal documents. The ABA President, Paulette Brown, lauded the program as an “exciting opportunity” to provide small businesses with affordable legal services, while offering lawyer mem-bers a chance to serve new clients. Customers would pay $4.95 to ask an ABA-member lawyer a question on-line with one follow-up question. The lawyer and client would then negotiate for fur-ther services.

The ABA Law Connect was tested in California, Illinois and Pennsylvania. The state bar associations in Illinois and Pennsylvania denounced the program, criticizing it for reflecting “a ‘Blue Plate

Special’ mentality”. Interestingly, both Il-linois and Pennsylvania State Bars run a similar service where a client is charged approximately $25 – $30 for an initial consultation. California did not object. Regardless, the ABA abandoned the program after only 3 months.

The growth of law-related compa-nies such as Rocket Lawyer and Legal Zoom has unsettled many lawyers and bar groups that see the companies as a threat to small firms and solo practi-tioners. Others, meanwhile, see these alternative providers as addressing the nationwide need for civil legal services for those who would otherwise be un-able to afford a lawyer.

Like it or not, On-line Legal Providers (“OLPs”) are here to stay since their customer base continues to grow while venture capital continues to back their development. Legal Zoom has as a 60% brand awareness while the biggest law firms only have a 2 – 5% brand aware-ness. Meanwhile, membership in the ABA and other state bar associations continues to shrink.

For the last decade, bar associations around the country have pursued litiga-tion against the OLPs. The suits have alleged the unauthorized practice of law (“ULP”) by Legal Zoom. Most cas-es were lost or settled favorably to the OLPs.lost.

It should be noted that the Federal Trade Commission and the Department of Justice have long been hostile to a broad interpretation of UPL legislation. In a 2016 letter, they jointly recommended that the North Carolina General Assem-bly revise the definition of UPL to avoid

undue burdens on “self-help products that may generate legal forms”. They stated that these self-help products and other interactive software programs for generating legal documents would pro-mote competition by enabling non-law-yers “to provide services that historically were provided exclusively by lawyers”.

The pros and cons of OLPs have been debated by the New York State Bar As-sociation. Although the NYSBA does not have an official position on OLPs, they did issue an advisory opinion finding that Avvo’s Legal Services program vi-olates ethical rules. Consumers using Avvo’s Legal Services purchase spe-cific services, such as an uncontested divorce, for a flat rate. When a client receives services from a lawyer through

Pro Bono Corner ......................... .. 3Fruitcakes, Dummies, Whiners, and Weasels ................................. 4Health Law Update ........................ 6Immigration Law Update ............... 7Animal Law Update ....................... 8Labor and Employment ................. 9Practicing Law & Wellness ............ 11Matrimonial Law Update ............... 12The Amphibious Assault Ship of Court Systems .................. 13Surrogate’s Court Proceedings and Issues ................ 17Bench and Bar ............................... 19Classifieds ..................................... 24Calendar of Events ......................... 26

2 | Albany County Bar Association Newsletter | December 2017

EXECUTIVE DIRECTOR’S MESSAGE

Bar Membership. Renew it. Use it.

If you have not already received your ACBA membership renewal form, it should be arriving in your mailbox very soon. But you don’t have to wait, you can always go online or call us to renew your membership (albanycountybar.com | (518) 445-7691 x116).

In 2018, we will be continuing our popular Morning Meet and Greet Net-working Events, mixing it up at different locations and times throughout Albany County. Quarterly informal Brown Bag Lunches with Judges are also being planned for members to sit down and discuss freely on a variety of topics be-

The purpose of the Albany County Bar Association is to promote professional collegiality among the bench and bar; facilitate public service and access to justice for all; and offer programs, benefits and services to enhance the skills of its members.

MISSION STATEMENT

tween the bench and the bar. Also be-ing launched is a quarterly no frills CLE series that will be offered, you guessed it, free for our members.

The Masonic Lodge in downtown Al-bany is graciously opening its historic doors to host our upcoming Member-ship Appreciation event on Wednesday, December 20th from 5:30 to 7:30 PM. The event is free for ACBA Members or soon-to-be ACBA Members. Reserva-tions are appreciated, so please RSVP online.

And be on the lookout for an exciting announcement in your inbox to kick-off the new year. ●

MARQUITA JO RHODESExecutive Director [email protected]

Best Wishes for a Safe and Happy Holiday Season,

Marquita Jo

President James E. Hacker

President – Elect Hon. Christina L. Ryba

Vice President Daniel J. Hurteau

Treasurer Michael P. McDermott

Secretary Douglas R. Kemp

Immediate Past President Daniel W. Coffey

Board of Directors

Elizabeth J. Grogan

Mathew P. Barry

Hon. Ryan T. Donovan

William T. Little

Lisa R. Harris

Kathleen A. Barclay

Alicia Ouellette ex officio

Vincent E. Polsinelli

Lorraine R. Silverman

Eileen M. Stiglmeier

Committee on Admissions

Caitlin J. Monjeau

Albany County Bar Association 2017 OFFICERS

Avvo, it collects a marketing fee. In a lengthy opinion, the NYSBA concluded that a lawyer paying Avvo’s current mar-keting fee for Avvo’s Legal Services is making an improper payment for a rec-ommendation in violation of Rule 7.2 (a).

Recently, the New York County Law-yers’ Association (“NYCLA”) appointed a Task Force on On-Line Legal Provid-ers to, among other things, review is-sues related to on-line legal documents. At the November meeting, the New York State Bar Association House of Dele-gates voted overwhelmingly to approve the report and recommendations of the NYCLA Task Force. Instead of attempt-ing to outlaw or legislate out of existence OLPs, the NYCLA adopted a more tra-ditional regulatory approach designed to protect the public by ensuring that it is adequately informed of the risks at-tendant with using forms generated by OLPs, particularly in sensitive situations. The Task Force noted that it preferred that the legislature or other appropriate

regulators enact appropriate regulatory standards. The Task force also recom-mended that the OLP industry adopt a voluntary standard as a useful interim measure. To that end, the Task Force of-fered a statement of Best Practices for Document Providers, which it called on OLPs to voluntarily adopt immediately.

The Task Force’s recommendations are intended to counter the one sided nature of OLP form contracts. Typical-ly, such contracts contain no warranties and, indeed, often disclaim warranties. The contracts also generally contain ar-bitration clauses which OLP providers contend are favorable to consumers but are likely to require the consumer to bear costs and arbitrate in a distant place. The use of any online service in-volves disclosure of personal data and potential closure sensitive information about a user’s transactions and circum-stances. OLPs can make use of this data for marketing purposes, or may try

Continued from page 1

PRESIDENT’S MESSAGE (continued)

Continued on page 3

Albany County Bar Association Newsletter | December 2017 | 3

The Albany County Family Court has done some updating in 2017. We have new furniture, new partnerships, new volunteers, and most importantly, more available time for litigants seeking as-sistance. The ACBA pro bono program is greatly encouraged by this progress. Let’s keep up the momentum in 2018!

Some recognition is in order. Thank you to the Help Center’s anchor firms, who have each donated four or more hours a month through volunteers: William Berglund and Kelly Mikullitz (O’Connell and Aronowitz) and Michael Belsky (Tully Rinckey). A special thanks goes out to our Pro Bono Advisory Com-mittee Chair, Lorraine Silverman, and her colleagues Joseph Williams and Kayla Molinaro (Mack and Associates) who have staffed the Help Center a to-tal of nine hours in November. Firm do-

PRO BONO CORNER

Thankful to So Manynations can revolutionize the amount of service provided at the Help Center and the community is grateful to these first few firms who have started the ball roll-ing with this new staffing model.

Solo volunteers have continued to demonstrate commitment to helping Albany’s unrepresented litigants. Our thanks go out to Judge Joseph Teresi and Ann Lapinksi for being enthusias-tic veteran Help Center volunteers. A warm welcome back is also extended to Marcella Sgroi, who volunteered in 2016 and has resumed volunteering in Octo-ber. New to our volunteer pool is Nicole Kilburg who has personally spent more than twenty-two hours in the Help Cen-ter since September.

Are you inspired yet? Come learn more about doing pro bono work at the Help

Center! More Help Center Training CLEs will be scheduled during the first part of the year or we can always come to your office to present to you and your team. The training will cover the main goal of the Help Center: working with litigants to complete family court form petitions clearly and present enough relevant in-formation for the case to survive a motion to dismiss. This 1.5-credit CLE covers the basics in family law needed to begin volunteering at the Help Center even if you are not a family law practitioner. Con-tact me to learn more today. ●

to sell it outright. Nothing in the current contracts preclude them from doing so.

The NYCLA Task Force sets forth list of general provisions and consider-ations for the regulation of online provid-ers of legal documents. These recom-mendations can be broken down into 4 categories.

The Usefulness and Propriety of Forms: the OLP should be required to provide clear plain language as to how to complete forms and the appropriate uses for each form. There should be a warranty that is enforceable in in the rel-evant state, and if the document is not enforceable in the relevant state, what steps can be taken to make it enforce-able including, if necessary, the reten-tion of an attorney. The OLP should not be permitted to limit this warranty, or recovery under this warranty in anyway. Further, the documents should be kept up to date and account for any changes

in the law. Finally, if the OLP selects the service agent for a document, the OLP will be legally responsible for the proper filing of the document.

Protection of Customers: the OLP should be required to inform their cus-tomers of all the ways (if any) they in-tend to use and share customers’ per-sonal and legal information with the OLPs’ business associates and ask for consent to do so. The OLP must protect the customers’ personal and legal infor-mation with up to date security practices and be required to inform the customer of any breach.

Recommendation of Attorneys to As-sist: the OLPs should be required to in-form their customers, in plain language, of the importance of retaining an attor-ney to assist them with any transactions and should not be permitted to adver-tise their services in a manner that sug-gests that their services are a substitute

for the advice of a lawyer.

Dispute Resolution: OLPs should be required to submit to the jurisdiction of the courts of the State of New York for the resolution of any dispute with New York customers and should not be per-mitted to require arbitration of any dis-putes. OLP should not be permitted to preclude their customers from joining in class actions, or require shifting of legal fees to the consumers.

It remains to be seen whether the House of Delegates approval of the NY-CLA report will convince OLPs to volun-tarily adopt the recommendation or spur the New York State Legislature to action. It should be remembered that the same House of Delegates voted overwhelm-ingly to endorse a New York Consti-tutional Convention. That did not turn out very well at the polls. Although, the NYSBA did hand out some nifty stickers and buttons to support ‘yes’ votes. ●


PRESIDENT’S MESSAGE (continued)

Kristin Petrella, Esq. Coordinating [email protected]


In the stunning climax of “A Few Good Men,” on cross examination, Jack (Tom Cruise) presses Colonel Jessup (Jack Nicholson) for the truth. Baring teeth that had snapped off a head or two over the years, the witness retorts: “You can’t han-dle the truth!”

Wending out of the movie theatre or getting up for a snack after catching the film on your flat screen, the enormity and power of those words echo in the view-er’s brain. The bad guy got his comeup-pance, but if you were representing Jes-sup at his court martial, how would you view “the truth”?

Words like “truth” and “lies” are ban-died about by everyone on the path to adjudication, yet objective “fact”, not sub-jective “truth” is the grist for the criminal justice mill. What can you expect from a fruitcake? Will he tell you the truth about what happened? Will she reveal the facts?

If you’re old enough to have watched (or even heard of) “Dragnet”, the original TV cop show aired in the 1950s, you’ll recall Sgt. Friday’s signature line while in-terrogating a witness. He always insisted that “all we want are the facts.”

Whether your ultimate objective with a fruitcake is to discover “truth” or uncover the “facts”, you need to have a plan.

In science, researchers propose an hypothesis and a null hypothesis. Since few, if any, readers of this publication are candidates for a Nobel Prize in Physics or Chemistry, we’ll try to keep it simple. When your client gives you his or her sto-ry, do you believe what you’re hearing? If you do, construct your defense strategy around the version of facts given. If you don’t, your job is to find a way to con-vince the client that his or her account won’t get him or her off the hook. The story may change and warp over time, but is that due to your client’s improved memory, or is it that she is reconstructing her version of events as new prosecution evidence comes to light? If it’s the latter, do you confront the client, or handle the

Michael A. Feit, Esq.Law Offices of Michael A. Feit, [email protected]

Rebekah B. Sokol, Esq.Albany County Public Defender’s [email protected]

issue in a more roundabout way? A com-mon scenario involves a client chatting about his case on the tier, doing legal research or having other inmates weigh in. Sometimes these clients will craft new twists to their version of events based on advice from others or defenses they just learned about. Maybe a client is secret-ly ashamed of what she did or thinks that by hiding the truth, what happened is less real and you will never find out about it. These types of individuals often fall under the “weasel” heading, but many times there is a fruitcake component—mental health issues, a low IQ, paranoia about their lawyers, etc.

The next question is why the client is changing her story. Often, for whatev-er reason, a defendant won’t trust her lawyer, opting to craft her own version of what happened and assume that the attorney will blindly accept it. More often than not, conflicts arise between attor-ney and client, especially when the law-yer isn’t buying the client’s story. To min-imize head-butting and to maintain your relationship with the client, follow one of the guiding principles of cross-examina-tion—don’t always telegraph or make it obvious where you are going. It is also im-portant to continue to maintain a working relationship with the client. Calling him an outright liar is often not effective, and can be less so when a client has mental health issues. Just like in therapy, a client’s de-ceptive behavior will usually prevent an attorney from helping as best they can. It is important to emphasize how an open and honest dialogue is crucial to your de-fense, and continue pressing your client to open up.

Playwrights and authors rarely, if ever, achieve perfection on the first draft. Cli-ents, for the most part, have 24 hours a day to ponder their circumstances. Few,

if any, will put their worst foot forward, even with you. Getting to the bottom of what can be proven in court, even where the scenario is damning, is the place you have to reach. In many cases, the client has first-hand knowledge of what actu-ally happened, and what the People can prove. Bad news, a couple of weeks into the case is not as catastrophic as having no notice and watching the “facts” play out in trial.

Help your client get to the best pos-sible place. Use his responses to your overtures to appreciate the web being woven and do your best to invent segues into mutuality of thought. To get started, consider the following colloquies. A cli-ent’s response to questions may change over time, and their answers usually are provocative—not only about the case, but about their mental state, mindset, and at-titude towards you.

What do you want to happen with the case?

How about a program?I’ll take a county bullet.Get me SHOCK.Me suing the county for wrongful im-

prisonment—I’m sitting on a goldmine!They never read me my rights…What do you think is going to happen

with the case?The cops took my phone. Can’t you get

it back?No one’s gonna show up to testify

against me. I don’t want to blow trial.It’s my first felony. Drug Court, right?A guy on my tier just got probation for

the same thing. What are you most concerned about?Never seeing my kids again.

FRUITCAKES, DUMMIES, WHINERS, AND WEASELS

Continued on page 5


These charges are hurting my chances with the ladies.

The “victim” getting on the stand and making stuff up.

Why I see you in my cell at night…The computer chip the police put in my

neck.What does your criminal history look

like?Only misdemeanors.Stuff… you know.A couple felonies, but nothing violent!I never took a case to trial.Nothing, unless you count the twenty

years I spent in a prison down south for attempted murder…

Have you ever had a problem with drugs or alcohol?

Nope.I already signed myself up for treat-

ment.Not really. I hardly ever have more than

two six-packs a night.Why are you asking? You think I’m an

alcoholic?!Will it help if I say yes?

Can you tell me what happened?Shouldn’t you already know? I know

you’re working with the DA.I told you the police never read me my

rights! Don’t you care?!I was helping a friend out with some

heroin. Yeah, I had a couple of bags in my shorts.

What do you want me to say? What’s the best defense you can think of?

I was too damn drunk to remember.You’ve told me that you weren’t in the

victim’s apartment, but the police say they have a street surveillance video of you in the neighborhood. Can I show it to you?

Walking on the street isn’t a crime!I said I wasn’t there? No, wait, maybe I

was… but he invited me in.That isn’t me! Everyone knows the po-

lice use CGI. That must be my twin… but she just

moved to Milwaukee. And I don’t remem-ber her number. I don’t memorize num-bers anymore and the police have my iPhone.

I can’t walk without a limp. If it was me you’d have seen a limp. Obviously.

Do you have any last questions for me before we wrap up today?

When am I getting out?I know I have 5 other DWI convictions.

Why can’t I get a conditional license?Did you think OJ was guilty? Do you

think EVERYONE is guilty? I want a paid lawyer.

Why won’t the judge set a lower bail? I didn’t DO anything!

Where do you get your eyebrows done?Different types of answers reveal more

about your client than he or she may re-alize. Is your client answering your ques-tion with a question? Not responding appropriately? Fixating on one aspect of the case? Certain responses may dictate your next move, both in dealing with your client and with the case. Are you repre-senting a dummy, whiner, or weasel, or are you looking at someone with a men-tal health problem? Over time, you will be better able to determine if your clients are not competent, if mental health issues af-fected their alleged criminal action, or if their mental state will affect how you ap-proach them. ●

Photo Quiz Do you remember when…?


On October 25, 2017, the New York State Department of Health (“DOH”) issued emergency regulations1 (“the Emergency Rule”) declaring certain health care facilities eligible to become a ‘designated caregiver’ for a patient who is a certified recipient2 of medical marijuana. The Emergency Rule was filed and went into effect on October 5, 2017.

As described in the Emergency Rule, the expansion is necessary to assist any certified patients currently “admitted into hospitals or resid[ing] in residential health care facilities, adult care facili-ties, community mental health residenc-es, mental hygiene facilities, residential facilities for the care and treatment of persons with developmental disabilities, and residential treatment facilities for children and youth.”3 Prior to the Emer-gency Rule, certified patients could only name an individual, natural person as a designated caregiver.4 The Emergency Rule revises the language of Section 1004.4 to allow certified patients to des-ignate either a natural person or a facili-ty as the patient’s designated caregiver.

Under the Emergency Rule, entire facilities may apply to become a desig-nated caregiver, or may choose to limit the application to “a division, depart-ment, component, floor, or other unit” within the facility.5 “By allowing [this ex-pansion] the regulations will authorize

Kathleen Evers Brown, Esq.O’Connell & Aronowitz, [email protected]

HEALTH LAW UPDATE

Emergency Regulations Allow Facilities to be Designated Caregivers of Medical Marijuana

the facility to lawfully possess, acquire, deliver, transfer, transport and/or admin-ister medical marijuana to certified pa-tients residing in, or attending, that fa-cility. In doing so, these regulations will help prevent patients from experiencing adverse events associated with abrupt discontinuation of this treatment alter-native.”6 Additionally, the Emergency Rule creates protections for designated caregivers, both natural persons and employees of registered facilities acting within the scope of their employment, against “arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or profession-al licensing board or bureau, solely for an action or conduct in accordance with [the Emergency Rule].”7

As explained in the Emergency Rule, DOH’s intent behind the expansion is to provide greater access to certified pa-tients who otherwise “might not be able to visit the dispensing facilities operat-ed by registered organizations to pick up their medical marijuana, or might not be able to administer medical marijua-na to themselves properly, and therefore need to rely on designated caregivers.”8 The proposed expansion of designated caregivers in the Medical Marijuana Program “would help to prevent patients from experiencing adverse events asso-ciated with abrupt discontinuation of a

treatment alternative that may be pro-viding relief for the severe debilitating or life-threatening condition.”9

As with all emergency rule making, these proposed changes have already gone into effect and are set to expire on January 2, 2018. Anyone interested in submitting comments to DOH regarding this rule are encouraged to do so by De-cember 9, 2017.

This article was written by Kathleen Evers Brown, Esq., an Associate in the Health Law Department at O’Connell & Aronowitz. ●

1 N.Y.S Reg. Vol. 39, Issue 43 (Oct. 25, 2017).

2 A patient may become certified in the Medical Mari-juana Program only if the patient’s diagnosis is a se-vere debilitating or life-threatening condition listed in 10 N.Y.C.R.R. § 1004.2(8).

3 Id. at 3.

4 N.Y. Pub. Hlth. § 3360(5).

5 Id. at 4.

6 N.Y.S Reg. Vol. 39, Issue 43 at 3.

7 Id.

8 Id. at 4-5.

9 Id.


IMMIGRATION LAW UPDATE

David W. Meyers, Esq.Meyers and Meyers, [email protected]

The Diversity Visa ProgramOn Halloween, 2017, an Uzbek immi-

grant purposely killed eight people in New York City with a rental truck he rent-ed from The Home Depot as he drove down a bike path in lower Manhattan and mowed down several people be-fore crashing into a school bus. Reports indicated that the 29-year-old Uzbek immigrant, Sayfullo Saipov, had entered the United States through what is called the “Diversity Visa Lottery Program” (the “DV program”).

The dust had barely settled on the tragedy, and President Trump tweet-ed, “The terrorist came into our country through what is called the ‘Diversity Visa Lottery Program,’ a Chuck Schumer beauty. I want merit based.” Not sur-prisingly, Senator Schumer immediately shot back, “I guess it’s not too soon to politicize a tragedy.”

So what exactly is the DV program that’s now being politicized? The di-versity immigrant category was add-ed to the Immigration and Nationality Act (“INA”) by the Immigration Act of 1990. Its purpose was to stimulate “new seed” immigration (basically, to foster new, more varied, immigration from un-der-represented parts of the world).

To accomplish this, the DV program makes 50,000 immigrant visas (i.e., “Green Cards”) available annually to individuals of countries from which im-migrant admissions were lower than a total of 50,000 over the preceding five years. The visas are divided among six global geographic regions according to the relative populations of the re-gions, with their allocation weighted in favor of countries in regions that were under-represented among immigrant admissions to the United States during the past five years. The INA limits each country to 7%, or

3,850, of the total, and further pro-vides that Northern Ireland be treated

as a separate foreign state for DV pro-gram purposes.

The qualifications are quite (or I should say deceptively) simple. First, an individual needs to be from a coun-try that is allowed to participate in the DV program. Second, the principal DV applicant must have a high school edu-cation, or its equivalent, or two years of qualifying work experience as defined under U.S. law.1

The program has its supporters and detractors. Its supporters argue that the DV program provides “new seed” immi-grants for an immigration system that’s weighted disproportionately in favor of family-based immigrants from a hand-ful of countries. Detractors argue that the program is vulnerable to fraud and misuse and, as President Trump is now tweeting, is potentially an avenue for terrorists, noting the difficulties of per-forming background checks in many of the countries eligible for the diversity lot-tery.2 The program’s supporters count-er that background checks for criminal and national security matters are per-formed on all prospective immigrants seeking to come to the United States, including those who have won diversity visas.

We’re now in the 2019 DV program. Approximately 14 million people around the world will apply for a visa.3 Only 0.3% of them will be successful. Anecdotally the DV program has been referred to as the “golden ticket”.

We can debate the policy of wheth-er the DV program should stay or go. While the President quickly pointed his finger at Senator Schumer for being re-sponsible for the DV program, what he failed (of course) to point out was that the legislation was overwhelming sup-ported by Congress in 1990, and then signed into law by then Republican President George H.W. Bush. President

Trump also failed to mention that pro-posed legislation passed by the Sen-ate in 2014 (but which did not pass the House), lead by the now defunct Gang of Eight (of which Sen. Schumer was a member), would have canceled this program.

In my view, canceling the DV program is not the answer to our problems, and will not make our country safer. The same laws are effect to screen potential immigrants from all countries, regard-less of the type visa that they enter the United States. Rather than pointing fin-gers in the aftermath of this terrible trag-edy (which the President was not willing to do after the Las Vegas shooting when gun control would have been at issue), we should focus on the root causes to prevent future attacks and to protect all Americans from those who seek to do us harm. ●

1 An individual qualifying with work experience must have two years of experience in the last five years in an occu-pation which, by U.S. Department of Labor (“USDOL”) definitions, requires at least two years of training or expe-rience that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (“SVP”) rating of 7.0 or higher. The USDOL provides information on job duties, knowledge and skills, education and training, and other occupational characteristics on their website http://www.onetonline.org/. The O*Net online database groups work experience into five “job zones”. While many occupations are listed, only certain specified occupations qualify for the DV Program.

2 In the “for what it’s worth” column, nationals of Uz-bekistan have not been singled-out in any of President Trump’s travel ban associated executive orders ... so far.

3 In FY2015, the last year for which statistics are avail-able, close to 14.5 million people from around the world applied for the 50,000 available visas.


In early August Gov. Cuomo signed into law S559 which imposes new re-quirements on all non-profit animal res-cues, SPCAs, humane societies and the like. All businesses that sell or otherwise adopt out dogs and cats are all effected by this new law. The new law substantial-ly amends NYS Ag & Markets Law sec. 400, et. seq. and cuts out the exemption of “duly incorporated humane societies” from the definition of “pet dealer” and imposes a registration requirement and filing (with $100 annual fee) for all res-cue organizations in order to seek ex-emption. Although the law was signed in early August it, the effectiveness was delayed by 90 days, and will be in effect by the time you are reading this. During that time it is expected that the Depart-ment of Agriculture and Markets will be issuing new regulations to implement the requirements of the law. I do not yet have these regulations, but I can make some informed assumptions.

The law is full of burdens for legiti-mate rescue organizations, some con-fusing language and vague references to yet to be issued regulations. It also imposes significant questions as to how the Department of Ag & Markets will be able to enforce its requirements with the limited number of animal health inspec-tors currently available for each of the State’s regions. The intent of the law is well placed, in that it seeks increased regulation of the health and welfare of animals which are often imported in mass into New York from other states and then adopted through rescue orga-nizations without proper veterinary care

Massive Overhaul to Pet Store and Not for Profit Animal Rescue Regulations

ANIMAL LAW UPDATE

Jonathan G. Schopf, Esq.Schopf Law, [email protected]

and examinations, a practice which all too often leaves families who have just adopted an animal responsible for vet-erinary expenses and occasionally an untreatable illness, such as parvo virus.

Until the Department’s regulations are issued, I cannot further analyze the practical aspects of what this imposes upon animal related businesses, but I have taken the steps of advising my affected clients that they can anticipate both their facilities and their volunteer foster families being subject to inspec-tion, registration and oversight by the Department. Going forward, all import-ers of animals regardless of non-profit status must follow the importation guide-lines and record keeping requirements for bringing in animals from out of state.

First Department declines to extend Court of Appeal’s vicious propensity rul-ing.

On March 16, 2017 the Appellate Divi-sion, First Department decided the case of Scavetta v. Wechsler1.

The Court in Scavetta declined to extend the Court of Appeals holding in Bard v. Jahnke2 which determined that an owner’s liability for injury caused by a domestic animal is determined solely by the application of the rule of strict lia-bility where the owner knows or reason-ably should have known of the animal’s vicious propensities.

The plaintiff in Scavetta had argued that the precedent established in Bard was not prudent in cases where injuries are proximately caused by a dog who although did not have vicious propen-sities, the injuries it inflicted were proxi-mately caused by the owner’s negligent conduct in failing to control the dog. The plaintiff argued that the Bard rule immu-nizes careless supervision of animals

and leaves those who are injured with-out recourse.

Although the Court of Appeals has had numerous occasions over the years since Bard to carve out exemptions to the rule, especially for dogs, it has de-clined to do so. The Scavetta court, in an excellent recitation of the many an-imal related negligence cases brought to the Court of Appeals over the last decade3 reluctantly declined to create an exemption and left the issue open for potential further interpretation by the high court.

NY creates first in the nation capital fund for animal shelters

Governor Andrew M. Cuomo an-nounced in late October that $5 million is available to support critical improve-ment projects at New York’s non-profit and municipal animal shelters, humane societies, and societies for the preven-tion of cruelty to animals. Funded in the FY 2018 Budget, the New York State Companion Animal Capital Fund is the first state-funded program of its kind in the nation. It will allow eligible organiza-tions to make significant updates to their facilities to enhance animal care and health, as well as to support compan-ion animal adoptions. Administered by the New York State Department of Ag-riculture and Markets, the Companion Animal Capital Fund is available to not-for-profit pounds, shelters and humane societies that are operated by or are un-der contract with a municipality. Accord-ing to the New York State Animal Pro-tection Federation, more than 150,000 animals are brought to these facilities each year and many are adopted by New York families. The Fund will help these organizations continue to provide sheltering services to local communi-ties, promote better care for the animals and facilitate more adoptions.

Continued on page 10


In October, the Third Department issued Cushman & Wakefield, Inc. v. Commissioner of Labor (524096), a de-cision that examines the difference be-tween “employees” and “independent contractors.”

Cushman & Wakefield, Inc. (“Cush-man”) operates as a global real estate services firm that specializes in com-mercial properties, for which it provides sales, rental and management services. To perform these services, Cushman re-tains, among other positions, licensed real estate brokers who perform ser-vices required by commercial landlords, tenants, buyers and sellers. Following an audit triggered by the filing of a claim for unemployment insurance benefits by one of its brokers, the Department of Labor (“Department”) issued an initial determination finding Cushman liable for additional unemployment insurance contributions based upon remuneration paid to real estate brokers and others similarly situated from January 1, 2007 to March 31, 2010. Cushman objected, and, following a hearing, an Adminis-trative Law Judge (“ALJ”) overruled the Department’s assessment of unemploy-ment insurance contributions. Upon ad-ministrative review, the Unemployment Insurance Appeal Board (“Board”) re-versed the ALJ’s decision and upheld the Department’s initial determination assessing unemployment insurance contributions. Cushman appealed.

In affirming the Board, the Court initial-ly noted that whether an employee-em-ployer relationship exists is a factual question to be resolved by the Board, and the Court will not disturb a deter-mination when it is supported by sub-stantial evidence in the record. In the context of an unemployment insurance appeal, “substantial evidence consists of proof within the whole record of such quality and quantity as to generate con-viction in and persuade a fair and de-tached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably -- pro-batively and logically. Although no sin-gle factor is determinative, the relevant

LABOR AND EMPLOYMENT PRACTICE

inquiry is whether the purported em-ployer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor.”

Here, the record was replete with evidence of control. Cushman recruit-ed experienced real estate brokers to provide real estate services to its cli-ents, and, prior to retaining those bro-kers, conducted a criminal background check. Cushman required its brokers to execute a written broker-salesperson agreement, which governed their rela-tionship.1 Pursuant to the agreement, Cushman provided its brokers with an office, various equipment – includ-ing a desk, telephone, stationary and business cards bearing the compa-ny’s name – and secretarial and other support services deemed by Cushman to facilitate the brokers’ transactional work. The agreement also specified that Cushman would furnish the brokers with advice, information and assistance that it deemed necessary for the brokers’ assigned real estate activities and re-quired the brokers to follow its written policies and procedures. Cushman also provided its brokers with medical and dental benefits and reported these ben-efits as taxable income for the brokers and retained the right, at any time and in its sole discretion, to modify those benefits.

The agreement required brokers to faithfully devote their full business time and best efforts to aid and assist Cush-man with the transaction of its business and, through the performance of their services, to promote the business and reputation of Cushman. To this end, Cushman reserved the right to direct the methods, techniques and procedures employed by the brokers. Significantly, the agreement prohibited the brokers from collecting or receiving any inde-pendent compensation for real estate services not performed in their capac-ity as a Cushman broker. Nor were the brokers permitted, without prior written consent from Cushman, to serve as a broker for any real estate transaction

not related to Cushman’s business. With regard to the brokers’ compensa-tion, which included the right to draw on commissions, the brokers were paid a commission according to a schedule of compensation established by Cush-man and subject to modification in its sole discretion. Cushman agreed to provide the broker with a “guaranteed draw” of $35,000 per annum, payable semimonthly in equal installments, in the event that the brokers’ commissions were less than that guaranteed draw amount.

In addition, Cushman had the sole discretion to determine the commission or fee charged to a client when a real estate transaction was completed, and the brokers were required to use only real estate forms approved by Cush-man. Cushman reimbursed brokers for certain travel costs and professional expenses, including their real estate brokers’ license application and renew-al fees as well as half of any member-ship dues in a local real estate board for brokers. The agreement also contained a non-compete clause prohibiting the brokers from soliciting Cushman’s cli-ents for one year after their employment with Cushman came to an end.

In view of the foregoing, and although there was some evidence in the record that might support a contrary conclusion, the Court easily found that the Board’s decision that Cushman exercised suffi-cient control over its brokers to establish an employment relationship was sup-ported by substantial evidence. ●

1 At the hearing before the ALJ, Cushman expressly de-clined to take the position that, based upon the written broker-salesperson agreement, its licensed real estate brokers were excluded from unemployment insurance coverage – and, therefore, that no employment relation-ship existed -- by operation of law (see Labor Law § 511 [19]).

Glen P. Doherty, Esq.McNamee Lochner P.C. [email protected]


The Companion Animal Capital Fund will provide competitive matching grants to offset the costs associated with capital projects, such as renovating dog kennels, improving medical facili-ties, or building more efficient shelters to reduce the cost of operation. Funds can be used to construct, renovate, re-hab, or acquire buildings or equipment needed to house, treat, and care for sheltered dogs and cats.

California requires pet stores to sell rescue animals only

Governor Jerry Brown on October 13, 2017 signed into law a requirement that dogs, cats and rabbits offered for sale in pets stores within the state must be from animal shelters only. The law prevents the commercial sale of com-mercially raised animals from so-called “puppy mills”. The law will go into effect on January 1, 2019. Private breeders will still be permitted to sell their animals privately, but not through commercial stores.

“Hank” set free in interesting Wash-ington State Dangerous Dog hearing

In late October in a case that has gar-nered international attention, Hank the dog is finally released by the courts to his owners. Hank’s story is a bizarre fac-tual circumstance that eventually lead to five separate court hearings.

According to news reports, Hank (originally named “Tank”) was seized by Lewis County, WA officials and desig-nated as dangerous due to accusations of killing livestock. However, county and animal shelter staff came to believe Tank was not dangerous. They attempted to find an adoptive family and when no one would take him due to his background,

they changed his name to Hank and ad-opted him to the Propp-Estimo family, with no mention of his previous “dan-gerous” declaration. County officials learned of the situation and seized Hank from his new family. Since the seizure, he has been held at the Lewis County Animal Shelter.

Famed animal attorney Adam Karp requested a temporary injunction stop-ping Hank’s court-ordered euthanasia. According to the Washington Chronicle, Judge Skinder gave a summary of the case for the many people in the court concerned about Hank and the rights of other animals.

“I know this is a case that many of you are very interested in,” he said. “This is the fifth court that had some contact with this case.”

First, Lewis County District Court Judge R.W. Buzzard ruled with the county that Hank was dangerous and ordered him to be euthanized. Karp filed an appeal allowing Hank to stay in the animal shelter pending future hearings. A Judge then considered Karp’s appeal motion and upheld Buzzard’s ruling.

Karp then appealed the decision to the state Supreme Court, but that ap-peal was dismissed to focus on the re-quest for the preliminary injunction in Thurston County, Skinder explained.

Skinder did not question the rulings of previous judges, but explained that Hank’s case concerned the distinction between a strict interpretation of the law and the legal principle of “equity.”

According to the Chronicle Skinder cited a 1968 court ruling regarding the principle of equity, which he said set a

precedent that citizens have a right to expect the same standards of treatment by the state as by any other citizen.

He also noted, as did Karp, that Propp-Estimo and her family had “clean hands” in the situation. While irregulari-ties in Lewis County employees’ actions have been well documented, Skinder said that Propp-Estimo had done noth-ing wrong in adopting a dog that she had no reason to believe was danger-ous.

“Ultimately, there was a fraud com-mitted that deeply harmed her and the dog,” Karp said, arguing that Propp-Es-timo and her family shouldn’t be pe-nalized by losing Hank because they adopted a dog under fraudulent circum-stances out of their control.

If she knew the dog was dangerous and sought to keep the dog in spite of county code, that might be a different story, Skinder said. “But that’s not the situation here,” he added. While the in-consistencies in Lewis County employ-ees’ actions might not be significant to Hank’s fate under a strict legal interpre-tation, they do matter under the princi-ple of equity.

Based on that, he granted the pre-liminary injunction, ruling that Hank be released under restrictions defined in Lewis County code for a dog deemed “potentially dangerous.”

Both of the officials who changed Hank’s name and falsely adopted him were criminally charged in the case, but the charges were later dismissed. ●

1 149 AD3d 202 (1st Dep’t. 2017).

2 6 NY3d 592 (2006).

3 Too many to list here, please refer to Scavetta, 149 AD3d 202 (1st Dep’t. 2017).

ANIMAL LAW UPDATE (continued)



Some of you may think this is an odd topic for my December article but I think it is apropos of the season. Overeating and indulging in rich food are an integral part of the “season” which runs from Thanksgiving to New Year’s Day. More than half of Americans experience some kind of heartburn and about 20% expe-rience it at least twice a week – meaning they may have GERD or Gastrointestinal reflux disease.

GERD is chronic condition that affects the ring muscle between the esophagus and stomach- called the lower esoph-ageal sphincter (LES). Reflux occurs when the stomach contents go back up the esophagus. The most common symptom is a burning sensation mov-ing upward from the stomach. It can also leave an acid or bitter taste in your mouth.

GERD is not just about having a burn-ing sensation. If GERD is left untreated, it can cause cancer of the esophagus, bleeding, ulcers and chronic scarring. For many, the solution is to take an acid reduction medication. I think everyone who suffers from GERD should first try management strategies. If you only oc-

PRACTICING LAW & WELLNESS

Ann Lapinski, Esq.NYS Dept. of Environmental [email protected]

Heartburn Holidays – or Notcasionally suffer from heartburn, the management strategies could end your problems.

MANAGING GERD

Chew Gum (Sugarless, of course)

Gum chewing may reduce reflux, most likely because it increases saliva production. Saliva is acid-neutralizing. In addition, is encourages stomach contents to settle back down where they belong.

Sleep elevated /on your left side

For reflux at night, sleep on an incline has been recommended for years. Now there is evidence that sleeping on your left side helps too. The valve between your stomach and your esophagus is on the right side of your body. Lying on your left side keeps stomach contents away from this valve. Doing both helps more than either one separately.

Mint does not help

Peppermint increases reflux. Mint re-laxes the esophageal valve encourag-ing burping. The burping causes stom-ach acid to wash back up. Peppermint tea drinkers beware.

Try acupunctureA recent analysis found that both tra-

ditional acupuncture and electroacu-puncture (which stimulates acupunc-ture points with electricity instead of needles) found that these treatments reduced reflux by 40%. Acupuncture appears to improve all digestive func-tion making the GI system run more smoothly.

Be careful at the holiday parties

Most people think that spicy foods trigger reflux but recent research indi-cates that eating high fat foods can be a cause. Meals with a high fat content can relax the valve between the stom-ach and esophagus and will slow the rate at which food exits causing greater likelihood of reflux. Keeping meals lower in calories also helps reduce reflux. So eat less food and lower in fat to make your holiday season happier. You could also benefit by not gaining the pound or two that many people do during the an-nual season of indulgence. ●


In Matter of Worfel v. Worfel, 2017 Westlaw 4679943 (3d Dept. Oct. 19, 2017), the Third Department affirmed a February 2016 Family Court order, which upheld the Support Magistrate’s determination to impute income to him from: his rental properties, his shares in a family Subchapter S corporation, and an unpaid debt owed to his parents. The father was employed as the manager of a hardware store, as to which his par-ents are the majority shareholders of the related subchapter S corporation. The father argued that 2013 Subchap-ter S income “was improperly imputed to him as he never actually received this money.” The Appellate Division noted that while the father paid about $3,000 in taxes on Subchapter S earnings, he claimed to have “no clue” as to where the money was. The father had not be-gun to repay the promissory note to his parents according to its terms. The Ap-pellate Division concluded: “Upon this record, we find no abuse of discretion in Family Court’s determination to impute to the father the rental income reported in his 2012 tax return (citations omit-ted) *** and “no abuse of discretion in the determination to impute the income he received from his shares in the fam-ily company (citations omitted), or to impute an amount equal to the unpaid monthly payments on the promissory note.”

Child Support – College and Health Insurance Contributions Denied; Equitable Distribution - Proportions (Business Debt); Separate Property Credit

In Wallace v. Wallace, 2017 West-law 4680170 (3d Dept. Oct. 19, 2017),

MATRIMONIAL LAW UPDATE

Bruce J. WagnerMcNamee Lochner P.C. [email protected]

Child Support – CSSA – Imputed Income – Rental, Subchapter S, Unpaid Parent Loan

both parties appealed from a February 2015 Supreme Court judgment, which, among other things, distributed marital property upon a decision of the Court. The parties were married in May 2000 and have a daughter born in 1995 and a son born in 2001. The wife commenced the divorce action in December 2011 and the parties resolved the issues of custody and personal property. The Third Department upheld Supreme Court’s failure to credit the wife for the daughter’s college expenses, finding: “Although the court made no express finding on this request, *** the parties otherwise have limited financial resourc-es. The husband is paying $683.75 in child support and a payment in the same amount for arrears, and the parties in-curred heavy debt to pay for their busi-ness. The daughter, who is estranged from the husband and, unbeknownst to him, had enrolled in a state universi-ty (later transferring to a local commu-nity college), paid her expenses with various loans, grants and financial aid, and the wife did not qualify for parental loans. Under all of the circumstances, including the husband’s limited ability to pay, we decline to credit the wife for the daughter’s college expenses (cita-tions omitted).” As to the issue of health insurance, the Appellate Division noted “the wife testified that the children are covered through the Child Health Plus program at a cost to her of $30 each per month, and she has insurance through her employer, while the husband is en-rolled in Medicaid. Supreme Court prop-erly ordered the husband to pay his pro rata share (42%) of the children’s future unreimbursed health-related expenses and, when the children no longer qual-ify for this program, directed the wife to add them to her health insurance plan and the husband to pay the wife his 42% share of those costs. Given the child support award, minimal insurance costs under the program and the parties’ fi-nancial circumstances, we do not find, as the wife urges, that the court abused

its discretion in declining to credit her retroactively for the husband’s share of health care costs (citations omitted).” As to the husband’s cross appeal, the Appellate Division modified, on the law, and remitted to Supreme Court. The business was purchased with a bank loan (partially secured by a mortgage on the marital residence), marital funds and loans from the parties’ parents and had been listed for sale. The Third De-partment found: “Despite the wife’s lim-ited direct involvement in the business, the court ordered that the net proceeds be equally divided upon its sale, with certain adjustments related to the bank loan, and the parties were each held responsible to repay their respective parents. The husband argues that, giv-en the equal distribution of the business asset, the court should have equally apportioned the outstanding credit card debt and 401(k) loans — reportedly to-taling approximately $125,000 — that he incurred to directly support the busi-ness prior to the commencement of this action. He also requested credit for any payments made after the action was commenced. We agree.” The Appel-late Division concluded: “The husband offered uncontradicted testimony that, prior to the marriage, he contributed $17,575 from his separate property to-ward the down payment and purchase of the parties’ home ***.” While some of the funds were deposited in the parties’ joint account, the Third Department held that “this was done for convenience and those funds were used at the closing on the marital residence the following week,” and *** they ‘retained [their] character as separate property.’ (Cita-tions omitted).”

Custody – Mental Health Issues

In Matter of Agu v. Williams, 2017 Westlaw 4532200 (2d Dept. Oct. 11, 2017), the Second Department affirmed a June 2016 Family Court order, which, after a hearing, and in accord with the



“It is a popular delusion that the gov-ernment wastes vast amounts of money through inefficiency and sloth. Enor-mous effort and elaborate planning are required to waste this much money.” P.J. O’Rourke

“Seven Civil Court judges who were elected Tuesday broke the rules. Brook-lyn’s Connie Melendez and Ellen Ed-wards failed to submit personal financial disclosure statements by the deadline, and five others failed to complete the mandatory campaign ethics training course in a timely fashion…Maybe they took a cue from state Chief Administra-tive Judge Larry Marks, who just pub-lished a legally mandated annual report six and a half months late. If judges can’t obey the rules, how can they de-mand that the rest of us do?” New York Daily News, November 8, 2017

The Judiciary Law requires the Chief Administrator of New York’s Courts to report by March 15 to the governor and the legislature of the state of the unified court system during the preceding year. Jonathan Lippman and his successors as Chief Administrative Judge eventu-ally pushed this out to September and this year Judge Marks filed the report Halloween. It’s a doozy.

As usual, the report begins with a tip of the hat to the Chief Judge. “The year also began with the investiture of our outstanding new leader, Chief Judge Janet DiFiore.” Indeed. Then extolling all of her wonderful initiatives, the vari-ety of new courts (Adolescent Diver-

sion Parts for example) and programs (Legal Hand?) and the success of the court system, we get down to the nuts and bolts of the most expensive per capita court system in the world. Just to put this in perspective, New York gets over $2.4 billion from its citizens. Know what costs $2.4 Billion? The USS Trip-oli (LHA-7) which was christened on September 16, 2017. It is an amphibi-ous assault ship aircraft carrier that has a length of 844 feet and a crew of over 1,000. Unlike the court system, it has missile launchers, machine guns, heli-copters and strike fighters. Kyrgyzstan, a country of over six million people has a total budget of less than the New York court system. We’ll keep that in mind when Judge Marks submits next year’s budget request based on this report.

So, what did we learn? Although the Chief Administrative Judge has finally, after years of untruth, stopped saying they handle 4 million or nearly 4 million cases, the numbers continue to show a significant decline in cases handle by the court system. Here’s the scoop. Judge Marks wrote, “In 2016, 3,435,146 cases were filed statewide in the tri-al courts.” In 2008 the number was 4,671,265. That is a 26% decline and it has declined every year. Also the way statistics are compiled by the Office of Court Administration is completely bo-gus. They count parking tickets as trial court cases which bumps the numbers over 108,000. Why? It is one of the few things that went up last year. In Family Court, rather than count the filings, they count the children in each family. So if a

person files for custody or child support for three children, even though that is one petition they count it as three.

In Family Court there were 621,107 “filings” statewide, a decline of over 19,000. So, tell me again why 25 Family Court judges were added a few years ago? This year they did not break down the Family Court filings by county al-though they did want you to know that there were 63 small claims filings in the City of Hudson in 2016. Glad I know that.

So, stay tuned. In the meantime, if you want some good news, the Judicia-ry Civil Legal Services program, which to me is an unconstitutional payment of taxpayer money to private not for profit organizations, increased its largesse from $70 million to $85 million in 2016. But what’s an extra $15 million in the grand scheme of things? In his intro-duction, Judge Marks noted in 2016 there was a mandate of the new Chief Judge: “Do a better job today than we did yesterday, and do better tomorrow than we did today. In 2016, that mindset permeated our entire organization, from top to bottom.” Sure it did, your Honor, sure it did. ●

The Amphibious Assault Ship of Court SystemsMichael P. Friedman, Esq. 77770 Concha CourtLa Quinta, CA 92253(518)225-7636 [email protected]

November’s Morning Meet and Greet was generously hosted by Whiteman, Osterman & Hanna

The Past President’s Dinner offered advice to Hon. Christina Ryba as the next ACBA President.

Court of Appeals Dinner Committee Co-chairs Cailtin Monjeau and James Peluso were all smiles testing and approving the 2018 dinner menu.


Diversity Internship Reception | November 2, 2017


forensic expert and the attorney for the child, granted custody to the father. The Court stated: “Here, the evidence pre-sented at the hearing established that the mother had been diagnosed by at least two mental health experts as suf-fering from ‘Psychotic Disorder NOS’ and/or ‘Personality Disorder NOS with Paranoid and Schizotypal Features,’ that the mother refused to obtain appro-priate treatment for her serious mental health problems, and that these prob-lems impaired her ability to function ap-propriately as a custodial parent (cita-tions omitted).”

Custody – Third Party – Grandparent – Standing Denial Reversed

In Matter of Monroe v. Monroe, 2017 Westlaw 4680065 (3d Dept. Oct. 19, 2017), the Third Department reversed a September 2015 Family Court order, which granted the mother’s motion to dismiss the paternal grandparents’ July 2015 visitation petition, for lack of standing. The two subject children were born in 2013 and 2015 and the parents were not married. The Appellate Divi-sion found: “Here, the grandparents *** aver that the mother has willfully and deliberately denied them any access to the children — without any reasonable cause for doing so — since their respec-tive births.” The Third Department found “the proof adduced in support of the grandparents’ petition to be sufficient to confer standing to seek visitation with their grandchildren ***” given “that the mother has made deliberate and imme-diate efforts to preclude the grandpar-ents from having and/or developing any significant relationship with the subject children — since the very day they were born — without any stated reasonable justification for doing so (citation omit-ted). Further, given the young ages of the children and the brief amount of time that has elapsed between their re-spective births and the disruption of the grandparents’ visitation, equity dictates that we not allow the lack of an estab-lished relationship be used as a pre-text to prevent the grandparents from

otherwise exercising their right to seek visitation.” The father did not oppose the relief sought by his parents on ap-peal. The Appellate Division remitted to Family Court to conduct a hearing as to whether visitation by the grandparents is in the best interests of the children.

Pendente Lite – Exclusive Use and Occupancy

In L.M.L. v. H.T.N., 57 Misc3d 1207(A), 2017 Westlaw 4507541, NY Law Journ. Oct. 20, 2017 at 21, col. 5 (Sup. Ct. Monroe Co. Oct. 3, 2017, Dollinger, A.J.), the parties were married and have two sons, ages 12 and 9, and lived in the marital residence together. The wife moved for exclusive possession, alleg-ing that the husband’s temper and the parties’ verbal disputes make it unsafe for them to remain together. The Court noted that the parties’ affidavits pre-sented diametrically opposed versions of events. The attorney for the children supported the wife’s motion, upon the children’s statements that the environ-ment was very stressful and unhealthy for them. Supreme Court granted the motion, subject to a hearing in 45 days, finding that a more enlightened view of “domestic strife” under DRL 234 man-dates that the court consider constant verbal conflict between the parents in terms of its effect upon the children. The Court directed the husband to vacate in 15 days, and directed the wife, upon her prior consent, to make $10,000 avail-able to the husband within 10 days so that he can relocate.

Pendente Lite – Temporary Maintenance Guidelines (Former); Carrying Charges; Upward Deviation

In Galvin v. Galvin, 2017 Westlaw 4679950 (3d Dept. Oct. 19, 2017), the wife appealed from a January 7, 2016 Supreme Court order, which directed the husband to pay $15,415 in monthly household expenses (for the marital res-idence and a Colorado condominium), plus $2,500 per month as temporary maintenance, where the husband’s in-come exceeded the then $543,000 cap.

The parties married in 1995 and have three children, one unemancipated. The husband commenced the divorce ac-tion in 2015 and both parties continued to reside in the marital residence. The wife claimed total monthly expenses in excess of $54,000 and had some in-come, the amount of which was unspec-ified. The presumptive amount of tem-porary maintenance payable to the wife was $160,331 per year, or $13,361 per month. On appeal, the wife contended “that Supreme Court erred by complete-ly offsetting the presumptive award by the husband’s payment of the house-hold expenses” and that “he should be permitted to offset no more than 50% of the household expenses [$15,415 per month/2 = $7,707.50] against the pre-sumptive amount of temporary mainte-nance.” The wife argued that in effect, the husband is paying her share of the household expenses ($7,705.50 per month), plus $2,500 = $10,207.50 per month, which is less than the presump-tive guidelines amount ($13,361 per month). The Third Department agreed and modified, on the law, “to allow the wife to receive the properly calculated presumptive share of maintenance.” The Appellate Division noted: “It is ap-parent that Supreme Court believed it was appropriate to award temporary maintenance in excess of the statutory cap, and the submissions provide am-ple support for this conclusion. Where, as here, the parties continue to reside together in the marital residence during the pendency of a divorce, we find that it is appropriate to credit the pay-or spouse with one half of the court-or-dered carrying charges (citations omit-ted).” The Court concluded that “the wife is entitled to the presumptive award of $13,361 each month, plus $2,500 for the amount of the husband’s income above the statutory cap, offset by one half of the household expenses, or a credit in the amount of $7,707.50 each month” and that “in addition to the de-fined household expenses, the monthly amount payable by the husband to the wife as temporary maintenance should be increased by $5,654, for a total of $8,154.” ●

MATRIMONIAL LAW UPDATE (continued)



Hon. Stacy L. Pettit, SurrogateAlima M. Atoui, Esq., Law ClerkDeborah S. Kearns, Esq., Chief ClerkAlbany County Surrogate’s Court

DIGITAL ASSETS IN THE DIGITAL AGE – NEW EPTL ARTICLE 13-A

One of us has a 95-year-old mom with email accounts, a Facebook page with posted pictures and comments, online bank accounts, paperless automatic bill payments, a Netflix account, and who knows what else. Yes, she is un-usual for her age, but just think about how many digital assets you have. You probably have pictures and documents saved in the cloud, online calendars and contacts, a LinkedIn account, your law firm website, and business assets including online tax services, payroll services and credit card processing. Have you purchased books and music online? If so, who owns the downloads? Some digital accounts have recurring automatic credit card charges, and oth-ers have value such as credit for airline miles. While all these accounts are con-venient for the user, such assets gener-ally cause difficulty for an executor who needs access to them to administer the estate.

In each home, there is usually one person who is the primary bill payer, tax preparer and asset manager. When you are that person, and perhaps the one who also keeps the family in contact through social media, there will be cha-os if you are gone. Many people have a long list of passwords which they try to update on a frequent basis in case family members need access to the ac-counts. However, even if the family has the passwords, they may be violating federal and state computer and com-munications privacy laws when they ac-cess a deceased person’s digital assets and accounts (see 18 USC § 2701, et seq.; Penal Law § 156.00 et seq.).

The Administration of Digital Assets Law in New York

Because of the difficulty faced by fi-

An Insiders’ View

SURROGATE’S COURT PROCEEDINGS AND ISSUES

duciaries trying to manage digital as-sets, digital asset legislation was enact-ed in New York, effective Sept. 29, 2016. The law is located in Article 13-A of the Estates, Powers and Trusts Law. Under the law, a digital asset is defined as “an electronic record in which an individu-al has a right or interest. The term does not include an underlying asset or liabil-ity unless the asset or liability is itself an electronic record” (EPTL 13-A-1 [i]). “Ac-count” is defined as “an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user” (EPTL 13-A-1 [a]).

The User May Choose

Pursuant to EPTL 13-A-2.2, “[a] user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications.” As an example, Facebook has an online tool in its terms of service agreement for a user to provide directions for disclo-sure or nondisclosure after death, in-cluding allowing a “legacy” page to be maintained by the designee.

If there is no online tool, the user may allow or prohibit disclosure of some or all of the user’s digital assets, including electronic communications, in a will, trust, power of attorney or other record (see EPTL 13-A-2.2 [b]).

If a user has died, the fiduciary must determine whether the user has provid-ed directions about disclosure and ac-cess to such assets, either in the online account, or if not, in the user’s estate planning documents. If the user did not provide directions online or in es-tate planning documents, the account’s terms of service agreement applies (see EPTL 13-A-2.3).

Procedure to Obtain Disclosure

Once a fiduciary has determined the existence or lack of instructions from the

user, the fiduciary may request disclo-sure from the account custodian. Under EPTL 13-A-2.4, the custodian has dis-cretion regarding the amount of access to provide, and may require a court or-der.

Procedure to Obtain Disclosure of Content of Electronic Communications of Deceased User

If the user consented to disclosure or a court orders disclosure of electronic communications (i.e. email or text mes-sages), the fiduciary must supply the following to the account custodian:

“(a) a written request for disclosure in physical or electronic form;

(b) a copy of the death certificate of the user;

(c) a certified copy of the letter of ap-pointment of the executor, administrator, or personal representative or a small-es-tate affidavit or court order;

(d) unless the user provided direction using an online tool, a copy of the user’s will, trust, or other record evidencing the user’s consent to disclosure of the con-tent of electronic communications; and

(e) if requested by the custodian:

(1) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(2) evidence linking the account to the user; or

(3) a finding by the court that:

(A) the user had a specific account with the custodian, identifiable by the information specified in subparagraph (1);

(B) disclosure of the content of elec-tronic communications of the user



would not violate 18 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other applicable law;

(C) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or

(D) disclosure of the content of elec-tronic communications of the user is reasonably necessary for administration of the estate” (EPTL 13-A-3.1).

Procedure to Obtain Disclosure of Other Digital Assets (Other than Content of Electronic Communications) of Deceased User

Digital assets other than electronic communications (i.e. online banking ac-counts, calendar or contact information) may be obtained by a fiduciary pursu-ant to EPTL 13-A-3.2 “unless the user prohibited disclosure of digital assets or the court directs otherwise.” Unless prohibited by the user or the court, “a custodian shall disclose to the executor, administrator or personal representa-tive of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of elec-tronic communications, of the user, if the executor, administrator or personal rep-resentative gives the custodian:

(a) a written request for disclosure in physical or electronic form;

(b) a copy of the death certificate of the user;

(c) a certified copy of the letter of ap-pointment of the executor, administrator, or personal representative or a small-es-tate affidavit or court order; and

(d) if requested by the custodian:

(1) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(2) evidence linking the account to the user;

(3) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the es-tate; or

(4) a finding by the court that:

(A) the user had a specific account with the custodian, identifiable by the information specified in subparagraph (1); or

(B) disclosure of the user’s digital as-sets is reasonably necessary for admin-istration of the estate.

Suggestions for Attorneys

When discussing estate planning with a client, it is important to ask what infor-mation a client does, or does not, wish to be accessed after death or incapac-ity, and to include clear instructions in the client’s will and power of attorney. Since those instructions will be provided to a custodian of digital assets, the lan-guage used in the planning instruments should specifically authorize custodians to grant the chosen access to the fidu-ciary.

It should be noted that there is a big distinction between “electronic commu-nications” and “other digital assets.” A typical person may wish to keep the content of emails and other electron-ic communications private after death, while desiring the fiduciary to have full access to other digital assets such as online accounts, contacts, calendars, and social media pages. Our emails and texts (“electronic communications”) are generally private messages be-tween individuals, while our online ac-counts, contacts and calendars (“other digital assets”) may be necessary to properly administer our estates. In addi-tion, Facebook pages, like other social media accounts which are not private communications, have become a sub-stitute for photo albums and journals we would like our families to have.

If a decedent did not provide written instructions regarding access to digital assets and communications, a fiduciary should still be able to access those dig-ital assets reasonably needed to admin-ister the estate. It should be anticipated that account custodians like Google may request a court order if there has been no instruction from a decedent, even though the statute regarding dis-closure of digital assets which are not “electronic communications” states that the custodian “shall” disclose such as-sets unless prohibited by the user (see EPTL 13-A-3.2).

A discussion of the application of the statutes can be found in the recent de-cision and order in Matter of Serrano (56 Misc 3d 497 [Sur Ct, NY County 2017]). In that case, a voluntary administrator requested a small estate certificate to access the decedent’s Google emails, contacts and calendar to “be able to in-form friends of his passing” and “close any unfinished business etc.” Google had requested a court order. The court ordered Google to disclose the contacts and calendar information from the dece-dent’s Google account as “reasonably necessary for the administration of the estate” but denied, without prejudice, disclosure of the content of the dece-dent’s email communications because the fiduciary had not demonstrated the emails were needed to administer the estate.

We hope you enjoy our articles, and we look forward to seeing you in Albany Surrogate’s Court! ●


SURROGATE’S COURT PROCEEDINGS AND ISSUES (continued)

The ACBA welcomes the following new members:

Kathleen M. O’HareDarien Smith

Saima QureshiArianna Beltrez

Richard WiorkowskiTiffani SilvermanFrank G. Barile

NEW MEMBERS

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BENCH & BAR IN THE NEWS

McNamee Lochner P.C. is pleased to announce that MATHEW P. BARRY (Banking), JACOB F. LAMME (Busi-ness Litigation), and JEREMY H. SPEICH (Business & Cor-porate Law) have been named to the 2017 Upstate New York Rising Stars list. Mathew P. Barry is a member of the firm’s banking, real estate and business litigation practice groups and was recently named a Rising Star in banking law. Mr. Barry represents business owners and financial institutions in all facets of commercial lending and real es-tate transactions. Mr. Barry routinely handles multi-lender and multi-million dollar financing transactions throughout New York State. Jacob F. Lamme is a member of the firm’s Litigation and Land Use & Zoning practice groups, and was recently named a Rising Star in business litigation. Mr. Lamme provides litigation and corporate counsel to local, statewide, national and international businesses in a vari-ety of matters, including commercial litigation, labor and employment disputes, real property tax assessment chal-lenges, and Article 78 proceedings. Mr. Lamme practices in state and federal courts, and he also provides advice and counsel to clients seeking to avoid litigation. Jeremy H. Speich is a member of the firm’s corporate, tax and commercial real estate practice groups and was recently named a Rising Star in business and corporate law. He represents new, emerging and established businesses in connection with succession and tax planning, mergers and acquisitions, purchase and sale of businesses and the formation and operation of business entities and joint ventures. He also represents business and developers in connection with commercial real estate acquisitions and lease transactions.

BOND, SCHOENECK & KING PLLC was recognized with nine attorneys from our Albany office for inclusion in The Best Lawyers in America® 2018. The following Bond attorneys were selected for inclusion: John M. Bagyi, Gregory J. Champion, Nicholas J. D’Ambrosio, Jr., San-jeeve K. DeSoyza, Robert H. Feller, Hermes Fernandez, John A. Miller, Carolyn Shearer and Arthur J. Siegel. Six of the firm’s attorneys resident in Albany and one in Sara-toga Springs are recognized in the 2017 New York Super Lawyers Upstate Edition. Recognized as Super Lawyers in Albany: John M. Bagyi, Nicholas J. D’Ambrosio and Sanjeeve K. DeSoyza – Employment and Labor; Hermes Fernandez – Administrative Law; and and Stuart F. Klein and Arthur J. Siegel – Business Litigation. Recognized in Saratoga Springs as a Super Lawyer: Michael D. Billok – Employment and Labor.

ROBERT S. REYNOLDS, partner at Whiteman Oster-man & Hanna LLP, the Capital Region’s largest law firm, has been selected by a nationwide peer review to be list-ed among the nation’s top lawyers in The Best Lawyers in America© for his work in the practice area of Trusts and Es-

tates. Mr. Reynolds is a partner in the Firm’s Estate Planning and Administration and Federal and State Taxation practice groups. Mr. Reynolds earned his Bachelor of Science in Fi-nance degree from Siena College, his Juris Doctor degree from Albany Law School, and his Master of Laws (LL.M.) in Taxation from Georgetown University Law Center while he was serving as an attorney advisor at the United States Tax Court in Washington, D.C. Mr. Reynolds joins his Whiteman Osterman & Hanna colleagues rated as Best Lawyers in America, including: Leslie M. Apple in the practice area of corporate law; James B. Ayers in litigation and trusts and estates areas; Beth A. Bourassa in education law; John Han-na Jr., Daniel A. Ruzow and Michael G. Sterthous in envi-ronmental law; Norma G. Meacham and Robert T. Schofield in employment law; Kevin P. Quinn in the practice area of government relations; Leslie K. L. Thiele in immigration law; and Michael Whiteman in communications and energy law.

Barclay Damon announces PAUL R. KIETZMAN and JA-MIE DUGHI HOGENKAMP have joined the law firm in the Health Care & Human Services and Health Care Contro-versies Practice Areas. They are resident in the Albany of-fice. Paul Kietzman is of counsel with Barclay Damon. Paul was the first general counsel to the New York State Office of Mental Retardation and Developmental Disabilities, where he served three governors and five OMRDD commission-ers. Paul also served as general counsel and then senior counsel to NYSARC, Inc., the state’s largest private provid-er of services to people with intellectual and developmental disabilities. During his career, Paul authored several piec-es of legislation, including, among others, portions of the Mental Hygiene Law and implementation legislation for the “New York State Cares” initiative, which supports develop-mentally disabled New Yorkers. Jamie Dughi Hogenkamp has rejoined Barclay Damon as an associate after accept-ing a position to serve as a law clerk for the Honorable Michael J. Garcia, Associate Judge of the New York State Court of Appeals. As a member of the Health Care & Hu-man Services and Health Care Controversies Practice Ar-eas, Jamie counsels health-care providers regarding com-pliance programs, administrative audits and investigations, self-disclosures, HIPAA compliance, licensure issues, and other legal matters. Jamie graduated summa cum laude and as salutatorian from Albany Law School, where she received many honors, was a senior editor of Albany Law Review, and founded and directed the Child Advocacy Pro Bono Project.

GOLDBERG SEGALLA has earned placement on For-tune magazine’s annual list of the 100 best workplaces in the country among businesses of 100 to 999 employees. The firm’s ranking on the national Best Medium Workplaces



It’s time to renew your membership for 2018!There are three easy ways to renew:

To renew your Lawyer Referral Service categories you must submit the paperwork

included with the membership packet!

If you have any questions about the renewal process please do not hesitate to

contact us by phone or email.

[email protected] | (518) 445-7691 x116

Login to your account online by visiting albanycountybar.com and renew through the website

Download and return the membership renewal paperwork to us by mail (available on our website on the home page and in email blasts)

Renew over the phone by calling us (518) 445-7691 x116


list is the result of an anonymous survey conducted by Great Place to Work®, a global research and consulting firm that uses a variety of internal and external factors including em-ployee feedback to recognize specific aspects of workplace culture.

On November 1, 2017, HONORABLE PETER G. CRUM-MEY, Colonie Town Justice, served as guest lecturer at three (3) Shaker High School Business Law Classes discussing the Judicial Branch and its application to the community at large.

TOWNE, RYAN & PARTNERS, P.C. is proud to announce that the Firm has been selected for inclusion in the 2018 U.S. News – Best Lawyers® “Best Law Firms” rankings by U.S. News & World Report and Best Lawyers. The Firm has earned a Metropolitan Tier 2 ranking for its practice in Litigation – La-bor & Employment in Albany. Receiving a tier designation re-flects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for its abilities, its professionalism and its integrity.

MCNAMEE LOCHNER P.C. is pleased to announce that J. Rochelle Cavanagh has joined the firm as an associate, work-ing in the Firm’s Matrimonial and Family Law Department. Ms. Cavanagh is an experienced civil litigator who has been practicing since 2009. She has focused her practice in mat-rimonial law, family court matters, including custody, support and divorce actions. Prior to joining the firm, Ms. Cavanagh worked as a Lead Litigator for an international law firm and focused on all areas of family law practice. Ms. Cavanagh received her J.D. degree from Albany Law School of Union University in 2009. She received her B.A. degree in Political Science and Sociology from Syracuse University in 2006. She is a member of the New York State Bar Association

U.S. News & World Report and Best Lawyers has recog-nized Hinckley Allen as a Best Law Firm for the eighth year in a row. Hinckley Allen has been ranked in the 2018 U.S. News – Best Lawyers® “Best Law Firms” list nationally in 5 practice areas and regionally in 58 practice areas.

TOWNE, RYAN & PARTNERS, P.C. is pleased to announce that Principal James T. Towne, Jr. was honored with The Giv-ing Circle’s 2017 Founders Award. The award was among the eight compassion awards presented at The 2017 Compas-sion Awards which recognize individuals, businesses and organizations that go above and beyond to help the needy and suffering beings locally, nationally and internationally. The esteemed Founders Award is presented to an individual each year who has demonstrated a lifetime of selfless works and acts of compassion. This award encourages selfless acts and promotes altruism and compassion in future generations.

LAFAVE WEIN AND FRAMENT, PLLC has been listed in the “Best Law Firm” rankings of the Eighth Edition of the Best

BENCH & BAR IN THE NEWS (continued)Continued from page 19

Lawyers and U.S. News & World 2018 Report on lawfirms. Partners Paul H. Wein, and Jason A. Frament have been listed in the Upstate New York edition of Superlawyers™ for 2017 in the field of plaintiff’s personal injury practice. Partner Cynthia S. LaFave and Special Counsel Patrick J. Higgins have also been listed in the Upstate New York edition of Superlawyers™ for the year 2017 in the field of plaintiff’s medical malpractice.

Partner Cynthia S. LaFave has also been listed in the 2017 National Trial Lawyers Top 100 Trial Lawyers publication and received its lifetime Achievement Award for Upstate New York in 2017.

Special Counsel Patrick J. Higgins has been selected by his peers for inclusion into the 2018 Edition of Best Lawyers in America in the field of plaintiff’s medical malpractice and plaintiffs’ personal injury litigation, and received an AV Preem-inent Rating from Martindale Hubbell for 2018.

E. STEWART JONES HACKER MURPHY, LLP is proud to announce that its associate attorneys Brett Williams and Da-vid Iversen have been named “Rising Stars” for 2018 by Su-per Lawyers. Attorney Brett Williams joined E. Stewart Jones Hacker Murphy in 2015, becoming the first attorney to join the legal team after the merger of the E. Stewart Jones, LLC and Hacker Murphy, LLP law firms. Attorney David Iversen began working with E. Stewart Jones Hacker Murphy in May of 2013, originally as a summer associate who joined the firm after passing the bar exam.

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Your thoughts are important to us!

Contact us at [email protected]


ALBANY COUNTY BAR ASSOCIATION

PRESIDENTJAMES E. HACKER

PRESIDENT-ELECTHON. CHRISTINA L. RYBA

VICE PRESIDENTDANIEL J. HURTEAU

TREASURERMICHAEL P. MCDERMOTT

SECRETARYDOUGLAS R. KEMP

IMMEDIATE PAST PRESIDENTDANIEL W. COFFEY

BOARD OF DIRECTORSELIZABETH J. GROGAN

MATHEW P. BARRYHON. RYAN T. DONOVAN

WILLIAM T. LITTLE, JR.LISA R. HARRIS

KATHLEEN A. BARCLAYALICIA OUELLETTE ex officio

VINCENT E. POLSINELLI LORRAINE R. SILVERMAN

EILEEN M. STIGLMEIER

CHAIR OF ADMISSIONSCAITLIN J. MONJEAU

EXECUTIVE DIRECTORMARQUITA JO RHODES

112 STATE STREET | SUITE 1120ALBANY, NY 12207P: (518) 445-7691F: (518) 445-7511

[email protected]

Court of Appeals Dinner 2018 | Sponsorship and Advertising Opportunities

Parking Sponsor | $5,000 (One sponsorship available)The first and last thing of the evening. Where and how to park for an event? And how much will it cost? Nothing – thanks to this sponsor who will be featured in multiple e-communications (+3) leading up to the event as well as at all the reception meeting hot spots including: registration, food stations and the open bar stations. Additional recognition will be made thanking sponsors for providing parking during the event’s program. The Parking Sponsor package includes two honorary tickets ($500 value) as well as the exclusivity of the full page ad on the inside front cover ($800 value).

The After Party Sponsor | $5,000 (One sponsorship available)Imagine the beautiful Egg lobby graced with your logo throughout, as guests make their way from the dinner to the after party “pop up” lounge. As they continue to mingle with colleagues and friends, your company and logo will stay top of mind throughout the evening including: a signature drink featuring the name of your company, and opportunities for your creative premium placements (should you so desire). A DJ is also scheduled to be onsite to complete the ambiance. The After Party Sponsor package includes two honorary tickets to the event ($500 value) as well as the exclusivity of the full page back cover ad in the event program ($900 value). Additionally, this sponsorship will be featured in multiple e-communications (+3) leading up to the event.

Photography Sponsor | $3,500 (One sponsorship available)Be part of the historical record! Anytime a photo is used from the evening, your logo will remain apart of it. Place your company logo along side ACBA’s on the backdrop of the “step-and-repeat” that will be used by the photographer and selfie-takers all night. The Photography Sponsor package includes two tickets to the dinner ($300 value) as well as the exclusivity of the full page inside back cover ad in the event’s program ($800 value).

Dinner Sponsor | $3,000In addition to having all the recognition of a Reception Sponsor, have your company featured throughout the evening dinner, as attendees enjoy an ongoing photo presentation of images from the Association’s 117 year history. Additionally a public mention will be made of your commitment to ACBA and the event. The Dinner Sponsor package includes two tickets to the event ($300 value) as well as a full page ad in the program ($600 value).

Favor Sponsor | $3,000What better way to keep your company top of mind then with your logo marked on the evening’s take home rememberance fo the event. We will place your logo on the selected premium and place it at each table setting for guests to use long after the glitter of evening fades. The Favor Sponsor package includes two tickets to the event ($300 value) as well as a full page ad in the program ($600).

SOLD


Reception Sponsor | $2,000Kick off the night with a reception designed to show off your company’s best angle. Be among sponsors recognized at all the reception meeting hot spots including: food stations and the open bar stations. Additional recognition will be made thanking sponsors for providing music for the reception. The Reception Sponsor package includes two tickets ($300 value) as well as a full page ad ($600 value).

Coffee Break / Hot Cocoa Sponsor | $2,000Sometimes the best way to connect is over coffee. Post dinner, a gourmet coffee and hot drink station will be set up ear the after-party as an additional hot spot for attendees to gather. The Coffee Break Sponsor package includes two tickets ($300 value) as well as a full page ad ($600 value).

Court of Appeals Dinner Program AdvertisingThe COA Dinner Program is a keepsake for many of those who attend the event each year. Ad creative is due January 23, 2018. All ads are in color.

Full Page 7 (h) x7 (w) $600Half Page 7 (h) x 3.25 (w) $450Quarter Page 3.25 (h) x 3.25 (w) $350

Sponsorship and advertisement confirmation are due January 23, 2018. Please contact us for additional information. [email protected] | (518) 445-7691 x116

Albany County, in partnership with The Albany County Bar Association and The County Attorney Association of the State of New York presented an annual Issues in Juvenile Delinquency Prosecution Conference in mid-November. The program featured an additional day to cover and address the Raise the Age legislation and the implementation statewide.


ADVERTISING POLICY FOR THE ACBA NEWSLETTER

Advertising & articles appearing in the ACBA Newsletter does not presume endorsement of products, services & views of the Albany County Bar Association.

2017 Rates and Deadlines: Albany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words).

The rates for all photo ready ads are: full page (8.5" x 11") = $550; half page (7.5" x 5") = $375; Quarter page (3.5" x 5") = $300; Business card size (3.5" x 2 .5") = $200.

Classified Advertising Policy: All ads must be prepaid and in writing. We also hold the right to edit all ads. For display advertising rates and information, please call (518) 445-7691. All ads must contain wording “Paid Advertising” at the top. It shall be the policy of the Albany County Bar Association that no advertisement should indicate any preference, limitation, specification, or discrimination based on color, handicap, religion, sex, national origin, or age.

Change of Scene and Bench & Bar in the News: Provided at no cost to our members and inclusion is limited to ACBA Members. All notices must be submitted in writing. E-mail is preferable.

Deadline: *Please note change: The third Friday of the prior month. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 1120, Albany, NY 12207. We also take credit cards, call (518) 445-7691.

LITIGATION ATTORNEY – Hurwitz & Fine, P.C., seeks a motivated at-torney to join our litigation practice group in Albany, NY. The candidate will assist in general litigation, insur-ance defense, including commercial, auto and other litigation matters as needed. Qualified candidates must have a minimum of 3 - 7 years of ex-perience. Must have experience with all aspects of litigation including trial, strong academic credentials and ex-cellent writing, research, analytical and communication skills. Success-ful candidate must be able to man-age multiple projects in a fast paced environment and be a self-starter with the ability to work independent-ly and as part of a team. Submit re-sume, writing sample and salary re-quirements to Hurwitz & Fine, P.C., Attn: Susan Ruhland, 1300 Liberty Building, Buffalo, New York 14202 or fax to 716-855-0874 or email to [email protected]

LEGAL SECRETARY – full-time po-sition with a 4-attorney, Albany litiga-tion firm.RESPONSIBILITIES:• Maintain electronic and physical files;

CLASSIFIED

• Prepare and assemble documents and exhibits;• Electronic Court Filing;• Scan and post correspondence, emails, and other documents;• Electronic calendar maintenance;• Dictation.REQUIREMENTS:• 2 employment references;• Proficiency with Microsoft Office Suite and document management software;• 2 years experience as a Litigation Legal Secretary/Assistant;• Must be able to prepare draft doc-uments using Word or templates and revise and finalize as directed;• Must be highly organized, have good prioritizing skills, and solid written and verbal communication skills.Submit resume to Kathy Trombley –[email protected]

ASSOCIATE ATTORNEY – Mack & Associates, PLLC (M&A) is seeking a motivated full-time Associate Attorney with 1-3 years of matrimonial and fam-ily law experience to join our Albany,

NY office. Candidates should desire a fast-paced and challenging work environment, have the ability to work directly with clients and have superi-or written and verbal skills. Salary will be commensurate with experience. Candidates should submit a resume, cover letter and transcript to Shali Natesan, Esq. at [email protected].

LAW OFFICE AVAILABLE – Ideal situation for attorney ready to start their own practice

Two Offices Available in Multi-Lawyer Suite with experienced attorneys

21 Everett Road Ext., (Near I-90 Exit 5)

Conference Room, Kitchen

Phones, Voice Mail, Fax/Scanner/Copier, Postage Meter

Legal Research Access provided.

Ample parking. Reasonably Priced Rent.

Contact Stephen Levy or Kathleen McCaffrey Baynes at 489-1098.

mailto:[email protected]





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COURT OF APPEALS DINNER

FEBRUARY 7, 2018EMPIRE STATE PLAZA CONVENTION CENTER


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The Albany County Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Provider of CLE in the NYS and has also been given approval to provide non-traditional CLE format courses. Hardship Scholarships are available. For a list of our CDs, or additions to our programs, please visit our website: www.albanycountybar.com.

December 12 Jury Selection Master Class CLE Albany County Courthouse, Room 373

20 ACBA Member Appreciation Reception Masonic Lodge, 67 Corning Pl, Albany

January18 Installation of ACBA New Board President and Board Albany County Courthouse, Room 443

February6 Brown Bag Lunch Series: Meet the Judge – Hon. Mae D’Agostino

Federal Court Conference Room, Albany

7 Court of Appeals Dinner Empire State Plaza Convention Center, Albany

28 Investigating and Preventing Employee Misconduct: From Cybersecurity to Fraud CLE 112 State Street, Cahill Room, Albany

March1 Morning Meet and Greet Great Oaks Office Park, Albany


Thank you to our Diversity Internship Reception Sponsors

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