li life calendarleif rubinstein said he’s been volun-teering his time for the pro bono foundation...

_____________By Laura Lane

Members of the Suffolk County BarAssociation and friends celebrated thededication and extraordinary commitmentof eight Suffolk County volunteer attor-neys at the SCBA Pro Bono FoundationRecognition Night held at the WatermillRestaurant.

“This evening we will celebrate theaccomplishments and exemplary work ofSuffolk County volunteer attorneys whohave donated more than one million-dollarsworth of legal service to the under repre-sented,” said Pro Bono FoundationManaging Director and SCBA Second VicePresident Dennis R. Chase. “The SuffolkCounty Bar Pro Bono Foundation’sstrength springs from the many talents andprofessional dedication of the attorneyswho have truly distinguished themselves byproviding representation to clients whohave nowhere else to turn for legal help.”

Attorneys Richard F. Artura, Stuart P.Gelberg, Melvyn L. Jacoby, Richard A.Jacoby, Patricia F. Neumann, Leif I.Rubinstein, Harvey B. Savitt and MitchellShapiro received much praise for their

contributions. They were each presentedwith a plaque, a way to not only commem-orate the occasion, but also pay tribute tothem for their dedication to helping thosewho can not help themselves.

“Collectively, these attorneys have onething all people, and especially attorneys,could use more of and that is perspective,”SCBA President Sheryl L. Randazzosaid. “These individuals have busy profes-sional lives, families, personal interestsand other obligations, yet they still findtime to share their expertise as lawyerswith people genuinely in need. Their per-spective, and commitment to ‘doing thepublic good,’ is beyond admirable.”

Leif Rubinstein said he’s been volun-teering his time for the Pro BonoFoundation for the past 15 to 20 years andenjoys doing so. “The fact is if we didn’tgive these people assistance no onewould,” he explained.

For some, the idea of hiring an attorneyis financially out of the question. Theattorneys helping these clients through thePro Bono Foundation provide an invalu-able service. But, helping people in thiscapacity is not only beneficial for the

client. Mitchell Shapiro said the experi-ences he’s had are more rewarding thanone might believe. “You get back as muchas you give if not more,” he said. “It’sgood to give something back and theclients are so grateful to have somebodyhelping them through this horrible time intheir lives.”

This year marked the third time thatMelvyn and Richard Jacoby were namedPro Bono Attorneys of the Month as it wasfor Patricia Neumann. Richard Artura hasspent 136 hours since 1999 working with

Pro Bono Project clients and StuartGelberg has amassed 226 hours in 131cases in Suffolk County. Leif Rubinsteinwho closed his law office and moved toTouro Law Center as Assistant Professorand Director of the Mortgage, Foreclosure,and Bankruptcy Clinic remains committedto the Pro Bono Project. He has completed179 cases since 2005 and also brought hisstudents to help out at the Bro BonoProject’s Clinic. Harvey Savitt has helpedindigent clients in matrimonial matters

PRESIDENT’S MESSAGE

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 27 No 3November/December 2010website: www.scba.org

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

Holiday Toy DriveOngoing at the Bar Center

Holiday PartyFriday, Dec. 3, 4 – 7 p.m.Enjoy a fun evening celebrating the holi-day season at the Bar Center. For furtherinformation, call the Bar Center.

Judicial Swearing-In & RobingCeremonyMonday, Jan. 10, 9 a.m.Auditorium of Touro Law Center,Central Islip. (For further information seepage 26.)

Healthy Life Series–Acupuncture Monday, Jan. 10, 4 – 6 p.m.Bar Center. Speaker Nicole V. Rotundi,L.A.C., Dipl., AC., MS.

BAR EVENTS

Personal Service Contracts After Barbato .....9POA Still Needs Work ....................................10Using QPRT to Minimize Estate Taxes .........9Medicaid Home Care for Seniors ....................6Veteran’s Benefits Programs and Payments 11Seniors’ Right to Terminate a Lease.............11Social Security Age and Disability Benefits....6_______________________________________Courthouse History ...........................................3Meet your SCBA Colleague..............................3Remembering Arline Besunder .......................7Join the SCBA leadership.................................4SCBA photo album..................................14 - 15Restaurant review - Palà Pizza ......................19_______________________________________Legal ArticlesBench Briefs .......................................................5Civil Litigation.................................................17Consumer Bankruptcy....................................13Corporate Law.................................................12Court Notes ......................................................10Pro Bono...........................................................18Real Estate .......................................................16Second Circuit Briefs ......................................13Trusts and Estates (Cooper)...........................16Trusts and Estates (Harper)...........................17_______________________________________Academy News.................................................28Academy CLE Offerings ................................22Among Us ...........................................................8Calendar: Academy.........................................28Calendar: SCBA................................................2Committee Corner...........................................18

INSIDE…NOVEMBER/DECEMBER

2010FOCUS LIFETIME AND

ESTATE PLANNING

Remain Healthyand Stress-freeDuring the Holidays____________________By Sheryl L. Randazzo

With the holiday season upon us, maintaining life andprofessional responsibilities can become even more harrowing for lawyers.Clients perceive their problems as more dire, or want results before year end.Year end business tasks are looming, while our social calendars fill up morethan usual. And then there are the things we’d like to do to make the holi-days extra special for the people in our lives, or to fulfill goals we have setfor ourselves. My unsolicited advice to you is – “please relax.”

No matter how real or perceived the crisis or time crunch is in your life, aday still has only 24 hours in it and your energy to handle all that is beforeyou is limited. Even those among us who try to control time and add hoursto their day by sleeping less and having more caffeine … you are fixing noth-ing and potentially setting yourself up for even greater, potentially life-alter-ing challenges.

The reports are out there. An early 1990’s Johns Hopkins University studymade the connection between the legal profession, stress and its related dan-gers when it concluded that, among 28 types of professionals, lawyers had thehighest rate of depression. More recently, a survey conducted by the OregonAttorney Assistance Program in February of 2007 found that the majority ofattorneys who responded found the most dissatisfying aspect of being alawyer was the time pressure and workloads. Clearly these are commonstresses in our profession.

So what is the answer? PERSPECTIVE. (Continued on page 20)

Annual Reception Honors Pro Bono Volunteers

Sheryl L. Randazzo

FOCUS ON

LIFETIME AND ESTATE PLANNING

SPECIAL EDITION

Ph

oto

by B

arry

M. S

molo

witz

SCBA President Sheryl Randazzo and Pro Bono Foundation Managing Director DennisChase, third from right, thanked Mitchell M. Shapiro, Leif I. Rubinstein, Melvyn L. Jacoby,Richard F. Artura, Richard A. Jacoby and Stuart P. Gelberg who were honored at Pro BonoRecognition Night for their outstanding contributions, dedication and commitment. Alsohonored but not in photo were, Patricia F. Neumann and Harvey B. Savitt.

(Continued on page 26)

THE SUFFOLK LAWYER — NOVEMBER/DECEMBER 20102

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

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

Thomas More GroupTwelve-Step Meeting

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

All who are associated with the legal profession welcome.LAWYERS COMMITTEE HELP-LINE:

631-697-2499

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

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

Please be aware that dates, times and locations may be changed because of conditions beyond our control.

Please check the SCBA website (scba.org) for anychanges/additions or deletions which may occur.

For any questions call: 631-234-5511.

NOVEMBER 2010

30 Tuesday ProBono Foundation, 8:00 am., Board Room. Supreme Court Committee, 5:30 p.m., Board Room.Animal Law Committee, 6:00 p.m., E.B.T. Room.

DECEMBER 2010

3 Friday SCBA’s Annual Holiday Party, 4:00 p.m., Bar Center7 Tuesday Insurance & Negligence - Defense Counsel Committee,

5:30 p.m., E.B.T. Room.8 Wednesday Labor & Employment Law, 8:00 a.m., Board Room.

Executive Committee, 1:00 p.m., Board Room.9 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.

Lawyer Assistance Foundation, 5:30 p.m., Board Room.Hispanic Bar Association, 6:00 p.m., Great Hall.

13 Monday Surrogate’s Court Committee, 5:30 p.m., Board Room.14 Tuesday ADR Committee, 8:00 a.m., E.B.T. Room.

Education Law Committee, 12:30 p.m., Board Room.15 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Solo & Small Firm Practitioners, 5:00 p.m., Board Room.Taxation Law Committee, 6:00 p.m., E.B.T. Room.

16 Thursday Professional Ethics & Civility Committee, 6:00 p.m., E.B.T. Room.21 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room.

JANUARY 2011

10 Monday Judicial Swearing-In & Robing Ceremony, 9:00 a.m. to 11:30 p.m. Touro Law Center.Healthy Life Series - Part III - Acupuncture, 4 p.m. - 6:00 p.m., Board Room.

11 Tuesday Education Law Committee, 12:30 p.m., Board Room.12 Wednesday Surrogate’s Court Committee, 5:30 p.m., Board Room.13 Thursday Criminal Law Committee, 5:30 p.m., E.B.T. Room.

Municipal Law Committee, 6:00 p.m., Board Room.18 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room.19 Wednesday Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.

Health & Hospital Law Committee, 5:30 p.m., E.B.T. Room.Board of Directors, 5:30 p.m., Board Room.

20 Thursday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.26 Wednesday Solo & Small Firm Practitioners, 5:00 p.m., Board Room.

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

Sheryl L. Randazzo............................................................................................PresidentMatthew E. Pachman................................................................................President ElectArthur E. Shulman............................................................................First Vice PresidentDennis R. Chase ...........................................................................Second Vice PresidentWilliam T. Ferris ...............................................................................................TreasurerDonna England ..................................................................................................SecretaryHon. W. Gerard Asher.............................................................................Director (2011)Annamarie Donovan................................................................................Director (2011)Joseph A. Hanshe ....................................................................................Director (2011)George R. Tilschner.................................................................................Director (2011)Derrick J. Robinson .................................................................................Director (2011)Cheryl F. Mintz .......................................................................................Director (2012)Lynn Poster-Zimmerman.........................................................................Director (2012)Richard L. Stern.......................................................................................Director (2012)Kerie Pamela Stone .................................................................................Director (2012)Michael J. Miller .....................................................................................Director (2013)Hon. William B. Rebolini........................................................................Director (2013)Wayne J. Schaefer ...................................................................................Director (2013)Thomas J. Stock.......................................................................................Director (2013)James R. Winkler.............................................................Past President Director (2012)Ilene S. Cooper ................................................................Past President Director (2013)Sarah Jane LaCova.............................................................................Executive Director

Suffolk County Bar Association

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

E-MAIL: [email protected]

Board of Directors 2010-2011

SUFFOLK LAWYERLAURA LANE

Editor-in-Chief

DOROTHY PAINE CEPARANO

Academy News

Leo K. Barnes, Jr.

Eugene D. Berman

John L. Buonora

Dennis R. Chase

Elaine Colavito

Ilene S. Cooper

Justin Giordano

Robert M. Harper

David A. Mansfield

Craig D. Robins

Frequent Contributors

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

TH

E

PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

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

Send letters and editorial copy for The Suffolk Lawyer to: E.Mail: [email protected] or for Academy news: [email protected]

The Suffolk Lawyer560 Wheeler Road, Hauppauge, NY 11788-4357Fax: 631-234-5899 Website: www.scba.org

Calendar

Please help us brighten the holiday season for needy children in our greatercommunity. This year, The SCBA and the Academy of Law are collecting itemsfor the large scale toy drive “Holiday Magic” run each year by your colleagueCharlie Russo.

We hope you will take time to obtain a new, unwrapped toy for the drive.Please bring your contribution to the SCBA Center or to any of the committeemeeting or Academy seminars.

Ideas for contributions include: Books, Puzzles, Miniature Cars, Dolls andDoll accessories, Board Games, Sports Equipment, Blocks, Legos, Art Suppliesor any of the popular items you see advertised.

In today’s troubled economy, more and more children will have holiday sea-sons that are less than bright without the generosity of those who participate indrives such as this. We thank you, in advance, for your help and generosity andwish you and yours a joyous holiday season and a Happy New Year!

- Joseph Hanshe

Holiday Toy Drive

THE SUFFOLK LAWYER — NOVEMBER/DECEMBER 2010 3

The Suffolk County Courthouse Through The Centuries

_____________By Laura Lane

The creator of the television seriesPerry Mason and Harper Lee, the authorof To Kill A Mockingbird probablynever imagined just how much theywould influence those contemplating acareer in law. A fan of both, youngErnest R. Wruck, Jr. grew up certainthat he’d dedicate his life to law. But itwasn’t just the fictional lawyer heroesthat convinced him. Ernest had the priv-ilege of being the son of a real life superlawyer, his father, Ernest, who was alsoa Justice of the Peace. The father andson even formed a practice together,Wruck & Wruck, which lasted for 25years until Ernest Wruck senior passedaway. Yes, sometimes things are justmeant to be.

Do you believe your father influencedyou in your choice to become an attor-ney? He didn’t have to push very hard. Myfather was a solo practitioner and at a veryyoung age I knew I wanted to be an attor-ney. There was a lure about the profession.

What do you enjoy about being anattorney? The highlight has to be when

you see problems and you are able to finda resolution for everybody. I enjoy get-ting people to the goal line.

What do you least enjoy about beingan attorney? The bad part of it is thefrustration or impossibility of sometimesgetting people to that goal line.

Do you feel like you always have towin; that you have failed if you don’t?I have learned over the years that beingthere for people and explaining theprocess is as important as getting themthe results.

You started out as a solo practition-er just like your father, right? I wasfor a couple of years. I was a law secre-tary at Surrogates Court for three yearsbefore that.

When did you join the SuffolkCounty Bar Association? I graduatedfrom Balpraiso University Law School inIndiana in 1979 and was admitted short-ly thereafter. I immediately joined theSCBA.

Why did you join so quickly? Beingthe son of an attorney I already had a rap-

port with the older attorneys. I couldn’timagine another alternative.

You were comfortable among themembership but were there any addi-tional reasons why you joined? Ithought it would be a great place to learnand get guidance.

What do you enjoy the most aboutbeing a member now? That would bethe continuing legal education. Youknow, we are one of the best programs inthe state. The Suffolk County BarAssociation offers a wonderful opportu-nity for people to interact with peoplefrom all parts of the profession.

Would you recommend membershipto other attorneys and if so, why? Thebar association is a great resource forlearning and the personal relationshipsare tremendous. In this business it isimportant to meet other attorneys andhave a social interaction with them aswell as professional.

How have you been involved in theSCBA? I have never held an officialposition but I have taught CLE estate

courses for the past 30 to 40 years. I amon the mentor program. We have a calllist for young attorneys and I’ve been onit for the past 25 years in the estate area.I got a lot of calls over the years and notjust from young attorneys. I’m happy tohelp others attorneys if they need it. I’vefound this to be a great opportunity toshare in the profession.

Ernest R. Wruck, Jr.

__________________By John L. Buonora

The following article, whichwill be the first in a series aboutSuffolk County’s courthouses, isthe result of a collaborative effortand substantial research andwriting contribution from MarthaRogers, Principal Law Assistantto Acting County Court JudgeMartin Efman. Past discussionswith Ret. Supreme Court Justice ThomasM. Stark and his book, Riverhead: TheHalcyon Years, 1861-1919, have alsobeen a great help. Other research sourcesused were Sharon A. Pullen, SuffolkCounty Archivist and The RiverheadStory, 1792 -1967 by Evelyn RowleyMeyer. Some information covering theyears 1969 to date came from my person-al recollections, which in the past some-times have proven to be less than perfect.

Suffolk County currently has a popula-tion of approximately 1.5 million citi-zens. In addition to numerous town andvillage courthouses in all ten of its town-ships, the bench, bar and citizens ofSuffolk County are served in the John P.Cohalan Court Complex in Central Islipand the Arthur M. Cromarty CriminalCourts Building in Riverhead. The pre-sent incarnation of the original SuffolkCounty Courthouse sits on Riverhead’sGriffing Avenue together with its recent-ly built Annex on the Court Street side ofthe building. The massive Alphonse P.D’Amato United States Courthouse inCentral Islip, while not possessing thehistory and tradition of some of its sisterstructures, is yet another impressive judi-cial venue.

Of course, Suffolk County was notalways a municipality with a million anda half residents, nor did it always boastthe impressive courthouses as it doestoday. Suffolk was one of the 12 originalcounties of New York State (actually theProvince of New York at the time) creat-ed in 1683. Suffolk was named after a

similarly named county inEngland. Interestingly, for atime it was known as EastRiding of Yorkshire, anothercounty in the northeast ofEngland. In 1683, Suffolk’sland area pretty much resem-bled what it is today.

The earliest figures existingfor Suffolk County are from the1790 census showing a popula-

tion of 16,400 people. In 1825 the popula-tion of Riverhead Township was 1,816. Atthat time the first Suffolk CountyCourthouse had already been in existencesince 1728, having been built on BridgeStreet (now known as Peconic Avenue) inthe hamlet of Riverhead. It was a two storystructure with a cupola and weather vaneand housed biannual sessions of theCounty Court as well as town meetings,church services and other community gath-erings. The County Court heard both civiland criminal cases and even cases of horsetheft.

The County Jail was attached to theCourthouse and was the site of occasion-al executions carried out before an audi-ence on a gallows outside of the jail.Execution expenses incurred by the sher-iff included money for rope, a cart andrum. (I couldn’t determine whether therum was for the prisoner, the executioneror the audience). Suffolk County’s lastexecution took place in 1854.

In 1855 the original courthouse wassold to Alex MacDonald and J.R. Perkins(as in the Henry Perkins Hotel, where inyears gone by many a trial lawyer, includ-ing this writer would await a verdict fromdeliberating jurors while having afew……, oh never mind). The new own-ers renovated the courthouse to house sev-eral stores. This building stood for 185years until destroyed by fire on July 4th,1911. The year 1855 also saw the originalcourthouse replaced by the second CountyCourthouse that contained a single court-room on the second floor and was locatedon Griffing Avenue. In 1910 a new jail

was built adjacent to the Griffing Avenuecourthouse. This second courthouse wasdestroyed by fire in 1929 and wasreplaced that year by the existing court-house which stands to this day albeit inmodified form (more about that later). Iguess that would make the present build-ing on Griffing Avenue the third countycourthouse and the second county court-house on Griffing Avenue. Once upon atime the Surrogate’s Court occupied oneof the floors of the three story CountyCourthouse, sharing the building with theCounty Court and the Supreme Court.

When this writer moved out to SuffolkCounty from Queens in 1969 to seek hisfame and fortune (probably falling shorton both accounts), the District Attorney’sOffice was housed in the classic styledbuilding on Griffing Avenue next to andimmediately south of the CountyCourthouse. In the District Attorney’sbuilding were the County Court Bureau(sometimes referred to as the TrialBureau) and the Appeals Bureau. In thosedays there were virtually no specializedbureaus; the County Court Bureau han-

dling most every felony prosecuted in thecounty.

At one time there were two CountyCourt criminal terms in the buildingreferred to as “Part I” and “Part II.” TheseParts, or courtrooms, would handle allmanner of felonies from arraignment tosentence. With growing volume and com-plexity of administering the criminal jus-tice system an Arraignment Part was cre-ated. There was no room for it on GriffingAvenue, so it was housed in a rentedbuilding around the corner on CourtStreet. Since the building was notdesigned as a courthouse, it had somequaint features such as columns locatedwithin the well of the courtroom thatlawyers would have to navigate aroundwhile making their case. I seem to recallthat it had a roof that leaked considerablywhen it rained. In describing this court-room the word ‘dingey” comes to mid.This Arraignment Part was called Part III.One would expect that the first stop in thecriminal justice system would be calledPart I, but since we already had a Part I

John L. Buonora

The Griffing Avenue Courthouse in 1988. The exterior of the building was substantially thesame as it was when it was built in 1929.

Ph

oto

is from

the a

rchiv

es of th

e Su

ffolk

Cou

nty

Bar A

ssocia

tion

.


MeetYour SCBAColleague Ernest R. Wruck, Jr.an estate attorney from Wruck & Wallace, L.L.P. in Patchogue,believes it is important to stand up and advocate for your clients.


g{x fâyyÉÄ~ _tãçxÜ ã|á{xá àÉ à{tÇ~_|yxà|Åx TÇw Xáàtàx cÄtÇÇ|Çz fÑxv|tÄfxvà|ÉÇ Xw|àÉÜ _|Çwt `A gÉzt XáÖA?yÉÜ vÉÇàÜ|uâà|Çz {xÜ à|Åx? xyyÉÜà tÇw xåÑxÜà|áx

àÉ ÉâÜ aÉäxÅuxÜBWxvxÅuxÜ |ááâxA

Each year, our membership elects aPresident, President Elect, two VicePresidents, a Treasurer, a Secretary, andfour Directors. The Officers’ positionsare for one year, the Directors’ terms arefor three years. The next election, pur-suant to our Bylaws, will be at ourAnnual Meeting, Monday, May 2, 2011.The membership also elects at the AnnualMeeting, three members to serve on theNominating Committee for a term ofthree years. Each member of each classshall be the immediate past president ofthe Association.

Except for the office of the president,the Nominating Committee is now seek-ing applications for the aforementionedpositions. If you are interested in becom-ing a leader and willing to assume a rolein the activities of the SCBA, please sendyour résumé, either by mail or email, tothe Executive Director [email protected] byDecember 2010.

As Officers and Directors of the SCBA,you manage the affairs of the Association

subject to and in accordance with theAssociation’s Bylaws and all applicablelaws; elevating the standard of integrity,honor and courtesy in the legal professionand cherishing the spirit of goodwillamong the members. The membership isdeeply appreciative of the energy, dedica-tion and hard work performed by theOfficers and Directors of the Associationespecially in these challenging times.The Directors are required to attend allscheduled Board meetings of theAssociation. Eligibility of Board mem-bers as noted in the Association’sBylaws: “No member shall be eligible forelection to the Board of Directors whohas not been an Active Member of theAssociation for at least five years and amember of a committee, task force, rec-ognized foundation of the association, anOfficer of the Suffolk Academy of Law,or any combination thereof, for at leastfour years during such period.”

- LaCova

An Invitation to Join Our LeadershipThe Nominating Committee seeks Candidatesfor the 2011 – 2012 Administration

Our Special Section Editor forNovember/December

LINDA M. TOGA, ESQ., founder of the Law Offices of Linda M. Toga, P.C.,is a sole practitioner concentrating in the areas of estate planning and elder law, realestate and civil litigation. She is a past president of the Suffolk County Women’sBar Association, immediate past co-chair of the Suffolk County Bar Association’s(“SCBA”) Elder Law and Estate Planning Committee and an active member ofnumerous SCBA committees, including the Judicial Screening Committee. Ms.Toga has also participated as a speaker at a number of SCBA CLE programs and atthe Senior Citizen Law Day held at Stony Brook University.

________________By Alan E. Weiner

Note: This written corres-pondence does not constitute anopinion and is not intended orwritten to be used, and it cannotbe used, by any taxpayer for thepurpose of avoiding penaltiesthat may be imposed on thetaxpayer.

Executive SummaryThe theme of this article is an alert to

any attorney (AND his/her employees)who, on and after January 1, 2011, pre-pares any type of tax return (estate, gift,fiduciary, individual and other types oftax returns) and gets paid for doing so.The PTIN registration is a mandatoryrequirement for all such preparers

(whether or not he/she will bethe person signing the taxreturn).

This article explains theInternal Revenue Service(“IRS”) reasoning and it is a‘how to’ for securing the PTINonline (which gives immediategratification, i.e., a PTIN almostsimultaneously with the onlinefiling, in most instances) or via

a paper application (which can take 4-6weeks before receiving the PTIN). Evenattorneys who already have a PTIN underthe old system must go through a re-regis-tration (called “refreshing”) process. Suchattorneys most likely will have received aletter from the IRS in November inform-ing them of the need to ‘refresh’; howev-

Alan Weiner

Preparer Tax Id Number ("PTIN")Another number that you may need


[ Over 20 Years \

Providing Consultation to Attorneys

& the Courts on Psycho-legal Matters

• Criminal Cases: Competency Issues, Criminal

Responsibility, Extreme Emotional Disturbance, Risk

Assessment, Sex Offender Workups & Dispositional

Planning

• Matrimonial & Family Court Cases:

Custody/Visitation, Neglect/Abuse, Termination,

Delinquency, Family Violence, & Adoptions

• Civil Cases: Competency Issues, Head Trauma,

Sexual Harassment, Discrimination, Immigration,

& Post-Traumatic Stress Disorders

Comprehensive Diagnostic &Treatment Services

WWW.NYFORENSIC.COM

26 Court Street, Suite 912, Brooklyn, NY 11242

718-237-2127

45 North Station Plaza, Suite 404, Great Neck, NY 11021516-504-0018

139 Manhattan Avenue, New York, NY 10025212-280-3706

The New York Center forNeuropsychology

& Forensic Behavioral Science

Dr. N.G. Berrill, Director


Suffolk County Supreme Court

Honorable Paul J. Baisley, Jr.Motion by plaintiff to strike defen-

dants’ jury demand granted; failure totimely file jury demand after note of issueconstitutes waiver; waiver may beexcused if failure was inadvertent and didnot result in any prejudice.

In Marion Rose v. Gary Rose, DoreenRose, Estate of James H. Rose, GaryRosa, as Executor, Index No. 20662/01,decided on August 28, 2009, the courtgranted the motion by plaintiff to strikedefendants’ jury demand. Plaintiff filedthe Note of Issue on March 17, 2008. Shedid not demand a jury. Defendants serveda demand for a jury on June 19, 2008. Ingranting the motion the court reasonedthat pursuant to the CPLR, upon the ser-vice and filing of the note of issue, inwhich a jury is not demanded, a partymay serve and file a demand for a jurywithin 15 days after service of such noteof issue. Failure to do so results in a waiv-er. Such a waiver may be excused if thefailure to demand a jury was inadvertentand did not result in any prejudice. Here,the court found that the defendants didnot offer an explanation as to why theyfiled an untimely demand but merelyasserted that since the plaintiff’s claimssounded in law, they were entitled to ajury on the legal claims.

Honorable Joseph FarnetiPlaintiffs’ motions for a protective

order conditionally striking the answersof defendants denied; at the time that

plaintiffs’ application was made, none ofthe depositions of the parties had beenconducted; cross-motion by defendantdismissing plaintiffs’ complaint pur-suant to CPLR 3211(a) (7) granted;plaintiffs failed to sufficiently plead anycauses of action against the cross-movant

In Robert O’ Gorman and JayneO’Gorman v. County of Suffolk, SuffolkCounty Police Department, SuffolkPolice Detective Clifford, CID, SuffolkCounty Police Officers, John “Doe” 1through 10, and Police Officers Jane“Doe”1 through 10, Suffolk CountyDistrict Attorney Thomas Spota and hisagents, servants, representatives andEmployees, including but not limited toSuffolk District Attorney InvestigatorRobert Berger, Long Island PowerAuthority (“LIPA”), Richard Kessel,Chairman of LIPA, Heather Schapiro-LIPA Customer Relations, Barbara O’Britis-LIPA Representative-RevenueProtection Division, Michael Lowndes-LIPA representative, David Whiddon-LIPA Investigator, Index No. 9464/07,decided on April 7, 2010, the courtdenied plaintiffs motions for a protectiveorder conditionally striking the answersof defendants Suffolk County DistrictAttorney Thomas Spota and RichardKessel, Chairman of LIPA based upontheir willful failure and refusal to providediscovery and to appear for examinationsbefore trial as demand by plaintiffs. Thecourt further granted cross-motion byDefendant County of Suffolk for an orderdismissing plaintiffs’ complaint pursuantto CPLR 3211(a) (7). The court found

that at this juncture it was inappropriateto conditionally strike the answers of theDistrict Attorney and Mr. Kessel as thecourt did not finds their conduct to bewillful or contumacious. The court notedthat at the time that plaintiffs’ applicationwas made, none of the depositions of theparties had been conducted. In decidingthe cross-motion, the court pointed outthat County Law § 54 prevents suit formoney damages against the head of anyagency, department, bureau or office of acounty for any act or omission of subor-dinates. Thus plaintiffs’ complaint whichsought to hold the District Attorney vic-ariously accountable for the acts or omis-sions of his subordinates, must be dis-missed, as claims premised on vicariousliability do not lie against the head of amagency. Here the court found that theDistrict Attorney’s office prepared andfiled misdemeanor information, whichinitiated a criminal proceeding againstplaintiff. As such, the court reasoned thatthe District Attorney was entitled toabsolute immunity with respect to quasi-judicial actions taken thereafter withinthe scope of his official duties. Plaintiff’sallegations specific to the DistrictAttorney were allegedly defamatorystatements made at a press conference. Ingeneral, a qualified or conditional privi-lege attached to statements in which theparty communicating possessed a legalduty to communicate the information toanother provided that the communicatorhad a good faith belief that the informa-tion was true. Based on same, the courtheld that plaintiffs failed to sufficientlyplead any causes of action against the

District Attorney. Honorable Emily Pines

Motion for summary judgment granted;no liability attached to homeownersunder the common law or under LaborLaw § 200

In Carlos A. Elgueta v. Julianne SaaryLittman, Marc Littman and A & MPainting and Decorating, Index No.13370/06, decided on March 23, 2010, thecourt granted defendants Julianne SaaryLittman and Marc Littman’s motion for anorder in favor of summary judgment. Inrendering its decision, the court noted thatowners of a one-or-two family dwellingare exempt from the absolute liabilityimposed under Labor Law § 240 (1) andthe vicarious liability imposed underLabor Law § 241 (6) unless they directedor controlled the work being performed.The phrase direct control has been con-strued strictly and referred to the situationwhere the owner supervised the methodand manner of work. The court found thatthe home owners’ established that theylacked the requisite supervision an controlover plaintiff’s work and were entitled toprotection of the homeowners exemptionas a matter of law. The court noted thatprotection provided by the Labor Law §200 codified the common law duty of anowner or employer to provide employees asafe place to work but here the allegeddefect or dangerous condition arose fromthe contractor’s work and the homeownersexercised no supervisory control over themethod and manner of the work. As such,no liability attached to them under thecommon law or under Labor Law § 200.

BENCH BRIEFS


__________________By Janna P. Visconti

The programs that compriseCommunity Medicaid on Long Islandoffer seniors the opportunity to age inplace in their own homes. This option canprovide one-on-one care at less cost thaninstitutionalization, and is the preferredalternative for many seniors. To bestguide their clients through the maze oflaws and programs that comprise theMedicaid home care system, attorneysmust understand their client’s physicaland mental condition, ability to performthe activities of daily living, and familysupport network, as well as the optionsavailable to their clients through

Community Medicaid. Thisarticle provides a brief surveyof those options.

Home Care Agency If the client begins home care

services during the Medicaidapplication process, the transi-tion to the Medicaid programwill be eased if the home careagency selected also contractswith the Department of Social Services(“DSS”), and accepts Medicaid payments.Some home care agencies have a Medicaidpending program which allows the clientto begin services prior to Medicaidapproval.

Traditional Home Care As soon as the attorney

receives the DSS approval, he orshe should call the home careintake desk at DDS (631-854-9584) and request a home careassessment. Be prepared toanswer general questions such asyour client’s name, address,Medicaid number, primary care

giver, physician, and health issues. Yourclient’s physician must complete FormMA-241-A stating the diagnosis, andmust make a general request for homeservices. The doctor’s conclusions mustbe based upon a recent examination and

should particularize your client’s need forassistance with activities of daily living.After receiving the physician’s recom-mendations, DSS will make an appoint-ment for a home visit during which the


Janna P. Visconti

FOCUS ON


SPECIAL EDITION

________________By Scott R. Tirrell

Estate planning attorneys are wellaware that many factors should be con-sidered when advising their clients.Among those factors are the likelysources of future income available to

their clients. This future incomeoften includes benefits receivedthrough the Social SecurityAdministration (SSA).Consequently, a working knowl-edge of the benefits that maypresently be available for agiven client through SSA, orthat may become available in thefuture, is a useful tool for theestate practitioner.

One such benefit is age-related SocialSecurity (“SS”) benefits. These benefitsare available to individuals who workedfor a sufficient number of years and paidinto the system out of their earnings dur-ing that period. At retirement age, suchindividuals can collect a retirement bene-

fit determined by SSA basedupon that individual’s lifetimeearnings. Historically, full retire-ment age was 65 but, since theSocial Security Amendments of1983, full retirement age is grad-ually increasing for individualsborn in 1938 or later. For some-one born in 1960 or later, fullretirement age is 67. The fullretirement age for individuals

based upon their date of birth can befound on the SSA’s website athttp://www.ssa.gov/pubs/ageincrease.htm

A person can pursue early retirementbenefits at age 62 even if they were bornin 1960 or later. However, electing earlyretirement results in a monthly benefit for

the rest of the individual’s life that is lessthan the amount of full retirement bene-fits. Alternatively, working beyond fullretirement age, without filing for agerelated SS benefits, results in a highermonthly benefit for life than the fullretirement benefit amount.

Even if an individual has never workedoutside of the home (an “SS non-contrib-utor”), he/she may still be eligible for aretirement benefit equal to one-half of theamount that his/her spouse/ex-spouse isentitled to collect. This benefit is avail-able when the married SS non-contributorreaches retirement age provided the mar-riage lasted for at least a year. In situa-tions where there are children, such bene-

The Basics of Social Security Age and Disability Benefits

Scott R. TirrellFOCUS ON


SPECIAL EDITION

Medicaid Home Care for Suffolk County SeniorsBeyond Financial Eligibility




____________________By Sarah Jane LaCova

Arline Besunder, a member ofthe legal community, wife ofpast president Harvey B.Besunder, mother of Alison andEric, mother-in-law of Allyn,grandmother of three year oldEmma, and another baby girlwho will be born to Alison andAllyn by the time this edition isout, who dealt with an autoim-mune disease Multiple Sclerosis,so courageously and so quietly was laid torest on November 1, 2010.

At the funeral service held at the NorthShore Jewish Center, Rabbi Hoffman,who led the service, told stories of hisconversations with Arline and her familyover many years. It was their House ofWorship and Rabbi Hoffman was the fam-

ily’s spiritual leader. In a syna-gogue sanctuary filled to capac-ity with people who knew andloved Arline, Eric eulogized hisbeloved mother and shared sto-ries of his and Alison’s adven-tures growing up in a lovinghousehold. Harvey regaled theaudience with his most memo-rable stories, from their firstmeeting in P.S. 189 where theymet and fell in love threemonths later, to two years later

when they entered into a contract knownas the “Katuba.” Harvey and Arline had awonderful marriage filled with hopes,dreams and commitment; they producedtwo great children, both of whom fol-lowed in their parents’ footsteps andbecame lawyers (Harvey’s father Alfred

Saying Goodbye to a Loved One….

OBITUARY


Arline Besunder

John Aicher Rory Alarcon Susan Beckett Nancy Bertolino Deidre Byrne James Corcoran Vincent Cuocci Judy Donnenfeld Robert Edelstein William Etherson Anthony Focarile Edmond Foy

Guido Gabriele, III John Gannon James Gentile John Giordano Richard Guttman Barry Heettner Jeffrey Herzberg Irwin Izen Raymond Lang Barry Lites Paul Margiotta Marina Martielli Cheryl Mintz

James Moran Curtis Morrison Karen Napolitano Mark Needleman Jerem O’Sullivan Sam Owusu Debra Petrillo Eric Sackstein Richard Satin Trudie Walker Glenn Warmuth Paula Warmuth

The Suffolk County Pro Bono ForeclosureSettlement Conference Project acknowledges withgratitude the following attorneys who have beenrepresenting the people of Suffolk County who havebeen impacted by the foreclosure crisis:

The SCBA would also like to pay tribute to Pro Bono Foreclosure SettlementConference Project Coordinator Barry M. Smolowitz and Administrator MelissaMcManaman for their continued commitment to proving the motto serving the pub-lic good. Barry has also stepped up and helped out in court when another pro bonovolunteer was not available. Through the efforts of many volunteer lawyers devot-ing untold hours of free professional services to hundreds of economically disad-vantaged people in Suffolk County, we have been able to provide access to the legalsystem. Our volunteer attorneys have truly distinguished themselves by providingrepresentation to clients who have nowhere else to turn for legal help. Please enlistyour colleagues who have not yet volunteered for this most worthy endeavor to getinvolved. The Pro Bono Project and the unrepresented population in SuffolkCounty need your help.

LaCova

More Than 40 Years Of Significant Experience In:CONDEMNATION, TAX CERTIORARI, ZONING,

LAND USE LITIGATION, COMMERCIALAND REAL PROPERTY LITIGATION

Flower, Medalie & Markowitz24 E. Main Street Suite 201

Bay Shore, NY 11706(631) 968-7600 Fax: (631) 665-4293

B R A N D N E WLaw Office Space Available

Mastic - Shirley Office

Prime Location on Montauk HighwayShare with Bankruptcy Attorney

One or two offices availablePossible overflow

(516) 496-0800


Congratulations…The Officers, Directors, Members and

Staff of the SCBA would like to add theircongratulations to the following memberswho were recognized in the Long IslandBusiness News Who’s Who in Women’sProfessional Services - Ilene S. Cooper,SCBA Past President (2009-10), partnerat Farrell Fritz, P.C.; Deborah Aviles,partner at Lewis Johs Avallone AvilesLLP; Patricia Galteri, Meyer, Suozzi,English & Klein; Sharon Berlin, partnerat Lamb & Barnosky LLP; and KathrynJ. Russo, partner at Jackson Lewis LLP.

Announcements,Achievements, & Accolades…

Land title practitioner Lance R.Pomerantz has launched a new website, www.LandTitleLaw.com, toshowcase the litigation, consulting andexpert witness services he provides to theprofession. His new email address is:[email protected] while his phonenumber remains unchanged: (631) 727-0133.

Lisa Renee Pomerantz and StaceyO'Connell of Employee Support NetworkLLC presented a program on “WhatEmployers Need to Know to Prevent

Workplace Violence” at TheBristal in Lynbrook onNovember 3.

Brian Andrew Tully hasreleased a new guidebook whichprovides valuable informationfor adults on how they can planfor their elderly parents as theyage. “How To Plan For AgingParents 2010” is available free ofcharge and can be downloaded atwww.elderlaw.pro.

Lamb & Barnosky, LLP attorneysEugene Barnosky, will be a panelist atthe 2010 Annual School Law Conferencepresented by the Nassau and SuffolkAcademies of Law and Education LawCommittees of the Suffolk and NassauCounty Bar Associations in a programentitled "So You Want to Save$1,000,000?"; Robert H. Cohen, will bea panelist in a program entitled"Instructional Services and IndependentContractors"; Rita Fishman Sheena, willbe a panelist in a program entitled “What'sPublic & What's Private?: ExecutiveSessions, FOIL, FERPA, subpoenas,email, etc."; and Mara N. Harvey, will bea panelist in a program entitled "StudentResidency: Homelessness, Foreign Stu-dents, Custody Issues, etc."

Jennifer B. Cona, managing partner ofthe Melville based elder law and estate plan-

ning firm Genser DubowGenser & Cona (GDGC) hasbeen appointed to the LongIsland Alzheimer’s Foundation(LIAF) Board of Trustees. Shewas also named HonoraryDinner Committee Chair of the23rd annual Remembrance Ball.

On October 20, 2010, JohnRay, of John Ray &Associates served as a pan-

elist for the Council on ForeignRelations’ economic conference, “A Callfor Judgment,” dealing with the bankingcrisis, as part of the CFR’s RoundtableSeries on Technology, Innovation, andAmerican Primacy.

Condolences….To Fred Johs and his family on the

passing of his mother, Dorothy E. Johs.

To longtime active members G.Ronald and T. Glenn Hoffman, on thepassing of their mother Margaret whodied on September 4 at the age of 84. TheHoffman’s said, “She was a great momand an “attorney creator.”

The Officers and Directors wish to con-vey their heartfelt sympathy to BarryTuminello and his family upon the recentpassing of his mother, Emma “Emily”Tuminello.

To the family of SCBA member GeorgeC. Trovato, who passed away suddenly inNovember.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Joseph S. Bavaro, GreggCohen, Daniel J. Cronin, Crysti D.Farra, Amy Gavlik, Daniel R. Howard,Hon. Cheryl Joseph-Cherry, MichaelKofsky, Michael S. Leinoff, Joshua A.Marcus, Michaelangelo Matera, JessicaL. Reznak, James K. Stern, MichaelG.Vigliotta and Julie L. Yodice.

The SCBA also welcomes its newest stu-dent members and wishes them success in their progress towards a career inthe Law: Robin Daleo and Sonia Gassan

On the Move –Looking to Move

This month we feature two employ-ment opportunities and three membersseeking employment. If you have aninterest in the postings, please contact

Tina at the SCBA by calling (631) 234-5511 ext. 222 and refer to the referencenumber following the listing.

Firms OfferingEmployment

Contracts attorney - immediate need.Long Island based global corporationseeks a full time, permanent attorney withat least two years of experience in draftingand developing new contract templateswith intellectual property knowledge.

Reference Law #19.

Attorney with West Sayville office, look-ing to expand his practice, seeking newlyadmitted or experienced attorney. Will lookat all resumes of interested parties.

Reference Law #4.

Members SeekingEmployment

Solo Practitioner, seeks to make achange. I am open to all forms of futureendeavors, including employment, ofcounsel relationship, partnership, associa-tion or merger. Over 30 years of experi-ence in criminal law, commercial transac-tional and litigated matters, personal injurylitigation, real-estate transactions and liti-gation, landlord and tenant, some willsand estate planning, and Surrogate's Courtwork. I have been called a utility infielder.Perhaps an association of some type canreduce costs and stress and increase rev-enues. Let's talk. Reference Att:#35

Experienced trial attorney now accept-ing small claims per diem in the Fourthand Fifth District Courts. ReferenceAtt#36

Results oriented executive with a lawdegree and a track record of providingstrong, creative, energetic and strategicleadership. Demonstrated ability to pro-vide overall direction and expertise for thedevelopment and delivery of sophisticatedservices, programs, reporting and metrics.Admitted to NJ Bar January 2009 andpassed 2009 NYS exam. Legal experienceincludes: Merger & Acquisition, ContractNegotiations, Collections, Banking &Legal Affairs, Commercial Leases &Residential Mortgages and HumanResources. Reference Att #23

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

SIDNEY SIBEN’S AMONG US

Jacqueline M. Siben

was also a well-known and belovedlawyer).

Arline had a wonderful sense of humor,she was feisty and smart and while teach-ing, reading and word games were herpassion, she decided, after much soulsearching and discussion, to take onanother challenge and attend law schoolknowing that the children were still intheir teens and the family would have toendure many sacrifices. Still, it was anendeavor they all agreed to take on.

It was in her second year of law schoolthat Arline was diagnosed with MultipleSclerosis, a disease that threatened todominate her life. Undeterred, Arlinecompleted her studies, passed the Bar andpracticed her profession with honor anddignity. Harvey said that through themany years the disease progressed,through the frustration of not being able toaccomplish all they had planned, she

never once complained or said “why me?”He said she never was self conscious orembarrassed by her situation. Arline said“you go with the hand you are dealt.”They both believed that even though theyhad so much taken away from them, theynever felt cheated.

Those who attended Arline Besunder’sfuneral service heard a true lovestory…the story of her life with Harvey,the story of her devotion to her children,family and community. It was quite evi-dent that even though Harvey, Alison,Eric, Allyn, Emma and the entire familyhad to witness the passing of someone soloved, Arline was, and will always be, aninspiration to them all. Every day shelived was a gift and a blessing.

Note: Sarah Jane LaCova is theExecutive Director of the Suffolk CountyBar Association.

Saying Goodbye to a Loved One…(Continued from page 7)

Professional Offices: For Lease, 100s/f to 5,600 s/f, on “Main Street” with over 1 acre of landscaped property and on-site parking, minutes from Central Islip Courts.

Existing Tenants: Attorneys and other professional services

Phone: Stuart Cantor, 631-235-3770

More on Facebook: Stuart Cantor (Greenhouse)

FOR LEASERelocate Your Office/Offices to One of Suffolk’s Most Prestigious Historic Landmark Properties

The W. Green House LLC93 Main Street, West Sayville, New York 11796


_____________________By Vincent W. Ansanelli and Diane L. Virzera

The personal service contract (“PSC”) isa written agreement between a Medicaidapplicant/recipient (“Medicaid A/R”) andone or more caregivers, typically relativesor close friends. Under the agreement, thecaregivers agree to provide the MedicaidA/R personal and geriatric care, financialmanagement, and related services over thestatistical life expectancy of the MedicaidA/R in return for fixed compensation,often paid in a lump sum. Under NewYork regulatory guidance, when properlydesigned and executed, a PSC rebuts the

presumption that services provided byfamily caregivers are provided out of “loveand affection,”1 thereby providing a basisfor demonstrating a fully compensatedtransfer of assets for fair value that is notsubject to a Medicaid transfer penalty.

Local Departments of Social Services(“DSS”) use guidance issued in GIS 07MA/019 for evaluating PSCs to assesswhether the payment of funds under thePSCs are deemed to be compensated trans-fers for Medicaid eligibility purposes.2GIS 07 MA/019 states that if the MedicaidA/R is faced with a transfer penalty, thetransfer penalty amount must be reduced“for the value of services actually received

from the time the personal service contractwas signed and funded through the date ofthe Medicaid eligibility determination,”3

provided DSS has credible documentation(for example, care logs specifying dates,hours, and nature of services), and a rea-

sonable wage scale for caregiver servicesis used (with particular reference to U.S.Department of Labor statistics).

Unfortunately, in practice the regula-tions pertaining to PSC’s are not necessar-ily applied as one would expect. Forexample, many fair hearing decisions didnot uphold PSCs challenged by DSS ongrounds that they did not effectively rebut

Personal Service Contracts After BarbatoAdvantages and limitations

Vincent W.Ansanelli

Diane L. Virzera

_______________By Kim M. Smith

The most valuable assets held by manyof our clients are their primary residences.Absent new legislation, the 2010 estatetax repeal will sunset in 2011. If thisoccurs, the estate tax will be reinstituted atrates as high as 55 percent with an exclu-sion amount equal to $1 million, putting

our client’s estates at great riskfor significant estate tax liabili-ty. For this reason, estate plan-ners should focus on strategiesto minimize estate taxes. Oneeffective strategy is the use of aQualified Personal ResidenceTrust (“QPRT”) whereby anindividual contributes his resi-dence to an irrevocable trust,but retains the right to live in theresidence for a term of years (e.g., 10 or20 years). During the term of the QPRT,the grantor is responsible for all expensesassociated with the property such as thereal estate taxes and the cost of repairs andmaintenance. Assuming the grantor sur-vives the term of years, the property canpass tax free to the grantor’s chosen bene-ficiaries or can continue to be held in trust

for their benefit; when the grantordies, neither the value of the resi-dence nor any appreciation real-ized after the creation of theQPRT, is included in the grantor’sestate for estate tax purposes.Since a QPRT is an irrevocabletrust, it also provides the grantorwith excellent asset protection.

For income tax purposes, aQPRT is treated as a grantor trust

during the term of years. This means thatthe grantor can deduct the real estatetaxes paid on the property during the termon his personal income tax return.Furthermore, if the grantor sells the resi-dence held by the QPRT and reinvests theproceeds in a new residence, any gainrecognized on the sale of a principal resi-dence should qualify for the gain exclu-

sion, assuming all of the code require-ments are met. In addition, if the grantormakes any capital improvements to theresidence, the value of those improve-ments can be treated as additional gifts tothe QPRT. In that case, the gift amountwould be based on the value of the capi-tal improvement and the remaining termof the QPRT.

There is several tax benefits associatedwith creating a QPRT. The most obviousis that QPRT’s are useful for leveraging aperson’s estate and gift tax credit. Thetransfer of a residence to a QPRT is treat-ed as a taxable gift by the grantor. Thus aFederal Gift Tax Return must be filed forthe year in which the gift is made.However, the value of the gift is basedonly on the value of the “remainder”

Using a QPRT to Minimize Estate Taxes

Kim M. Smith

FOCUS ON


SPECIAL EDITION

FOCUS ON


SPECIAL EDITION(Continued on page 24)


DUFFY & POSILLICO AGENCY INC.Court Bond Specialists

BONDS * BONDS * BONDS * BONDS

1-800-841-8879 FAX: 516-741-63111 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)NYC Location: 108 Greenwich Street, New York, NY 10006

Administration • Appeal • Executor • Guardianship

Injunction • Conservator • Lost Instrument

Stay • Mechanic’s Lien • Plaintiff & Defendant’sBonds

Serving Attorneys since 1975

Complete Bonding Facilities

IMMEDIATE SERVICE!


____________________By Sarah Jane LaCova

In September 1968, Congress autho-rized President Lyndon B. Johnson toproclaim National Hispanic HeritageWeek in September 1968. The obser-vance was expanded in 1988 to a monthlong celebration.

The Honorable H. Patrick Leis III,District Administrative Judge of ourSuffolk County Courts, celebrated theculture and traditions of residents whotrace their roots to Spain, Mexico and theSpanish-speaking nations of Central andSouth America and the Caribbean.

The celebration opened with the Pledgeof Allegiance and Invocation given by theHonorable Stephen M. Behar. TheMistress of Ceremony, the HonorableToni A. Bean, introduced Justice Leiswho welcomed the audience and madeintroductory remarks.

“This year’s theme for NationalHispanic Heritage Month is particularlyappropriate,” said Judge Leis. “Heritage,Diversity, Integrity and Honor: TheRenewed Hope of America aptly describes

the dedication and hard work of LongIsland Hispanic leaders in the legal com-munity. The positive collaboration amongthe courts, the legal community and thebar associations is a positive force inensuring justice for Long Island’s diversepopulation.”

I also found this year’s theme very fit-

ting. Sitting in the audience, I listened toRichard Montes, President of the LongIsland Hispanic Bar Association andSheryl L. Randazzo, President of theSuffolk County Bar Association speakmovingly about promoting leadership,personal development, cultural traditionsand the core values of loyalty, duty,

respect and selfless service. Judge Bean welcomed Suffolk County

Legislator Ricardo Montano and SuffolkSupreme Court Justice Hector DanielLaSalle who regaled us with stories onmaking a difference for themselves, theirfamilies and their communities. JusticeLaSalle spoke of his neighbor, DoñaLydia, who watched him grow up and thepride she felt as she followed his distin-guished law career and service to his com-munity. Legislator Montano spoke elo-quently about ancestry, unique culturalexperiences and the achievements, dedi-cation, as well as the contributions madeby Hispanic Americans for our nation. Tocap the event Hispanic music was sung byGerard Donnelly, Esq. and Rafael Penate,Esq. who also accompanied the duo on theguitar. The performance was exquisiteand the “Irish American and ElSalvadorian” team should definitely taketheir music on the road.

I’d like to thank the members of ourlegal community who prepared a bounti-ful and mouthwatering Latino luncheonfor all participants to enjoy.

Suffolk County Courts Celebrate Hispanic Heritage Month

_____________________By Eileen Coen Cacioppo

Presented as a technical corrections bill,the new Article 5 Title 15 of the GeneralObligations Law answers some questionsabout the power of attorney (“POA”) inNew York practice while at the same timeit raises some new questions. Historically,the new law, found at Chapter 340 of the2010 Laws of New York and at www.sen-ate.state.ny.us andwww.assembly.state.ny.us, is the firstrevision since the major changes to thesubstance and procedure of the former lawwhich were made effective on September1, 2009. For ease of reference in this arti-cle, the 2009 statute will be referred to as

the “2009 law” and the new legislationwhich is the subject of this article shall bereferred to as the “2010 law” or “the newlaw.”

Section 31 of the new law states thatChapter 340 “shall be deemed to havebeen in full force and effect on and afterSeptember 1, 2009” provided that anyStatutory Short Form Power of Attorney(“SSFPOA”) and any Statutory Gift Rider(“SGR”) executed after August 31, 2009shall remain valid, as well as any revoca-tion of a prior POA delivered to the agentbefore September 12, 2010.

The 2010 law keeps the basic structureof the 2009 forms in that there continue tobe two parts: the Statutory Short Form

Power of Attorney and the newly titledoptional Statutory Gift Rider (SGR), nolonger called the Statutory Major GiftRider (SMGR.) GOL §5-1501(2) (n) and(o) now provide that a mistake in wording,such as in spelling, punctuation or format-ting, or the use of bold or italic type, shallnot prevent a POA document from beingdeemed a SSFPOA or a SGR. The signifi-cance of these provisions is that when theexact forms presented in the statute atGOL §5-1513 and GOL §5-1514 are used,a third party located or doing business inNew York may not refuse to honor thedocument without reasonable cause, asdefined at GOL §5-1504. In fact, thestatute states that it is unlawful for a thirdparty to refuse to honor the properly exe-cuted statutory forms.

As has been the law since September 1,2009, not only the principal but the agentmust sign the POA document and have hissignature acknowledged before he isauthorized to act. The 2010 law now pro-vides a place in the form for the successoragent to sign, although there is no specificdirection to the successor agent to sign atthe time the document is created. The newlaw also clarifies that the notary taking theacknowledgment of the principal may alsoserve as one of the witnesses to the execu-tion of the SGR.

The SGR continues to be an optionalpart of the form which grants the agent theauthority in separate sections of the formto make limited gifts to certain specifiedbeneficiaries. Depending on the section ofthe form that is initialed by the principal,the agent may now make gifts that do not$500.00 in any calendar year, or unlimitedgifts to certain beneficiaries, or gifts to theagent himself. However, the SGR mustbe executed by the principal concurrentlywith the SSFPOA. The agent may makegifts in accordance with instructions fromthe principal contained in the POA docu-ment or in “any other writing provided bythe principal” or gifts that are in the bestinterest of the principal.

Reversing the 2009 law, the 2010 lawnow specifies that the POA document doesnot revoke any powers of attorney previ-ously executed unless the principal directsotherwise in the “Modifications” sectionof the form. The new law adds that if more

than one POA document is to remain ineffect, the agents appointed in the docu-ments are to act separately unless stated tothe contrary in the Modifications section.The 2010 law does not explicitly answerthe question of whether a POA executedby the principal before September 12,2010 on the 2009 form will be valid if theagent (or successor agent) signs the docu-ment after that date. Although the 2010law requires that any POA document exe-cuted after its effective date utilize the newform(s) set forth in the 2010 statute to berecognized as a SSFPOA and/or SGR, italso provides that a POA document whichwas executed prior to the 2010 date willcontinue to be valid provided it was pre-pared according to the statutory form andproperly executed in accordance with thestatute effective on the date of execution.

Another major change to the new law isthat at §5-1501( c ) it states that the newlaw applies to all powers of attorneyexcept those powers “given primarily for abusiness or commercial purpose,” as iden-tified in the statute to include, without lim-itation, a proxy to exercise voting or man-agement rights, a power given to a condo-minium managing agent, a power on aform prescribed by a government or gov-ernmental subdivision, agency or instru-mentality for a governmental purpose, anda power given to a financial institution.

Other changes have been made to therecording requirements, to revocationprocedures and regarding the full forceand effect affidavit.

Note: Eileen Coen Cacioppo, Esq. is aformer Co-Chair of the SCBA Elder LawCommittee and is currently serving hersecond term as Curriculum Co-Chair ofthe Suffolk Academy of Law.

The New POA Still Needs Work

Luis Antonio Pagan, Esq.; District Court Judge Toni A. Bean; Suffolk County LegislatorRicardo Montano; Suffolk County District Administrative Judge H. Patrick Leis III, J.S.C.;Sheryl L. Randazzo, President, Suffolk County Bar Association; Richard Montes,President, LI Hispanic Bar Association; Cynthia Vargas, Esq.; and Suffolk County SupremeCourt Justice Hector Daniel LaSalle.

FOCUS ON


SPECIAL EDITION

______________________By Ilene Sherwyn Cooper

Appellate Division-SecondDepartment

Attorney ResignationsThe following attorneys, who

are in good standing, with nocomplaints or charges pendingagainst them, have voluntarilyresigned from the practice of law in theState of New York:

Edith Tolkin

Attorney Reinstatements Granted The application by the following attor-

neys for reinstatement was granted:

Priya G. BhattRene G. GarciaAndrew P. JonesGerard P. McLoughlin

Attorneys Censured:Carl T. Woodly: By decision and

order of the court, the GrievanceCommittee was authorized to institute andprosecute a disciplinary proceedingagainst the respondent, and the issueswere referred to a Special Referee to hearand report. The Grievance Committee

served the respondent with a peti-tion containing two charges ofprofessional misconduct, and theSpecial Referee sustained bothcharges. The GrievanceCommittee moved to confirm.The record revealed, inter alia,that the respondent engaged inconduct adversely reflecting onher fitness as a lawyer by plead-ing guilty to the crime of criminal

possession of a weapon in the fourthdegree, namely a handgun, a class A mis-demeanor. The respondent submitted noopposition. In determining an appropriatemeasure of discipline to impose, theGrievance Committee pointed to therespondent’s past disciplinary historyconsisting of two letters of caution and anadmonition for improper use of hisescrow account. Accordingly, under thetotality of circumstances, the respondentwas publicly censured for his profession-al misconduct.

Note: Ilene Sherwyn Cooper is a part-ner with the law firm of Farrell Fritz, P.C.where she concentrates in the field oftrusts and estates. In addition, she isimmediate past president of the SuffolkCounty Bar Association and a member ofthe Advisory Committee of the SuffolkAcademy of Law.

COURT NOTES

Ilene S. Cooper

Ph

oto

credit: P

hoto

by A

rthu

r Sh

ulm

an

_______________________By Melissa Negrin-Wiener

Many veterans do not realize that theymay be eligible for benefits from theVeterans Administration (the “VA”) suchas service-connected benefits and low-income pension benefits.

Service-connected benefits provideveterans with compensation for an injuryor disease that occurred during service oris service-connected.1 The amount ofcompensation offered is based on the vet-eran’s disability rating as set forth in Title38 U.S.C Section 1114. Disability com-pensation is not considered taxableincome and there are no asset or incomelimitations placed on eligibility for ser-vice-connected disability benefits.

In addition to service-con-nected benefits, the VA alsooffers a needs-based, non-ser-vice connected pension pro-gram for low-income veteransfor which there is no disabilityrating requirement. The VApension program provides pay-ment to a service member whoserved during a period of war,is 65 years of age or older2 or isdisabled, and has limited income andresources.3 The pension amount availableto the veteran depends upon the veteran’sother sources of income. Similar to dis-ability compensation, VA pensionincome is not taxable.

The Aid and Attendance program ispart of the needs-based pension programand, as such, the veteran does not need aservice-connected disability or disabilityrating to qualify. However, the veteranmust be determined to be permanentlyand totally disabled. Aid and Attendancebenefits provide a pension to veterans,spouses of veterans and surviving spous-es of veterans who require the regular aidand attendance of another person withrespect to their activities of daily living

such as bathing, feeding, dress-ing, toileting, adjusting prostheticdevices and/or protecting theindividual from the hazards ofhis/her daily environment.4

A veteran, his/her spouse or asurviving spouse of a veteran canqualify for Aid and Attendancebenefits if they reside in an assist-ed living facility or if they live athome and require the assistance of

another individual, such as a home healthcare aide. Additionally, the veteran musthave had ninety (90) days in service, atleast one (1) day of which must have beenduring a period of war.5 This does notrequire the veteran to have served outsidethe United States. In addition to the afore-mentioned service requirements, the veter-an must have been discharged under con-ditions other than dishonorable.6

A surviving spouse may be entitled to aveteran’s pension provided he/she wasmarried to the veteran at the time of, andfor at least one (1) year prior to, the vet-eran’s death and the veteran has met all ofthe above service criteria.7 There is noage restriction for the widowed spousebut, if the surviving spouse remarries

after the death of the veteran, eligibility isterminated.

The veteran must also qualify financial-ly for Aid and Attendance benefits. Whilethere is no hard and fast figure8, the gener-al guideline is that the applicant must haveless than $80,000 in resources (not includ-ing the primary residence and car)9 and theveteran’s income cannot exceed the maxi-mum annual pension rate which currentlystands at $1,645. However, monthlyincome can be reduced by deducting unre-imbursed medical expenses such as thecost of an assisted living facility; adult daycare, group, rest and nursing homes, in-home attendants, insurance premiumsincluding health, medi-gap and long termcare insurance, non-prescription drugs ifphysician directed, hearing aides, eye-glasses, Depends, Ensure, co-pays, den-tures, and therapy.

The benefit amount a veteran receivesvaries depending upon the veteran’s mar-ital status and the dependence of a spouseor children. The veteran may receive upto $1,645 per month in Aid andAttendance pension benefits,10 while aveteran with a dependent spouse may

____________________By Jennifer M. Maloney

New York State Real Property LawSection 227(a) (“RPL§227(a)”) grants asenior citizen the right to terminate theirresidential lease without any penalty undercertain circumstances. The law is very use-ful to senior citizens who are moving intoan assisted living facility, a nursing homeor a relative’s home and need to terminatetheir residential lease prior to the expira-tion of the lease term. RPL §227(a) alsoenables senior citizens to move into seniorhousing that is more affordable than theirexisting lease without incurring a penaltyfor breaching their lease.

Under the statute, a senior citizen isdefined as “a person who is sixty-twoyears or older or will attain such age dur-ing the term of such lease or rental agree-ment or a husband or wife of such personresiding with him or her. The statute pro-vides, in part, that a senior citizen mayterminate a lease when:

l. “Such person is certified by a physi-cian as no longer able, for medical rea-sons, to live independently in suchpremises and requiring assistance withinstrumental activities of daily living orpersonal activities of daily living, and

who will move to a residence of a mem-ber of his or her family, or

2. who is notified of his or her opportu-nity to commence occupancy in an adultcare facility (as defined in subdivisiontwenty-one of section two of the socialservices law) except for a shelter foradults (as defined in subdivision twenty-three of section two of such law), a resi-dential health care facility (as defined insection two thousand eight hundred oneof the public health law), or a housingunit which receives substantial assistanceof grants, loans or subsidies from any fed-eral state or local agency or instrumental-ity, or any not-for-profit philanthropicorganization one of whose primary pur-poses is providing low or moderateincome housing, or in less expensivepremises in a housing project or complexerected for the specific purpose of hous-ing senior citizens, to terminate suchlease or rental agreement and quit andsurrender possession of the leaseholdpremises…”

RPL §2279a) allows the senior citizento terminate his/her lease term basedupon an “implied covenant by the lessoror owner to permit such lessee or tenant”

to terminate the lease. Notice of the intentto terminate the lease by the senior citizenmust be in writing delivered to the lessor.Notice by mail is deemed given on thedate that the envelope is postmarked. Saidnotice is effective “no earlier than thirtydays after the date on which the nextrental payment after the notice is deliv-ered, is due and payable”. So, for exam-ple, if the notice is postmarked April 10and the next rental payment is due May 1,the earliest termination date is June 1. Incertain cases, the notice of terminationmust be accompanied by a physician’scertification and other documentation.

Knowledge of the provisions of RPL§227(a) is not only useful to elder lawattorneys, but also to attorneys who rep-resent landlords since the statute providesthat in certain circumstances the landlordis required to give the tenant who is 62years or older at the time of the executiona lease or may become 62 years old dur-ing the term of the lease of the provisionsof §227(a). The statute specifically setsforth the content requirements of suchnotice and provides that any agreementwaiving or modifying the statute shall bedeemed void as contrary to public policy.Furthermore, landlords who retain a

senior’s personal property as “security”when the senior vacates the premises inpursuant to RPL §227(a) may be foundguilty of a misdemeanor for violating thesenior’s rights under the statute. In suchcases, the landlord may be punished by“imprisonment not to exceed one year orby fine not to exceed one thousand dol-lars, or by both….”

Clearly, RPL §227(a) is an importanttool for senior citizens who need to termi-nate their lease and is a statute with whichattorneys advising seniors should befamiliar.

Note: Jennifer M. Maloney, is of coun-sel to Tellus Abstract Inc. where she alsoserves as Marketing Director.

Veteran’s Benefits Programs and Payments


FOCUS ON


SPECIAL EDITION

Melissa Negrin-Wiener

Senior Citizen’s Right to Terminate a Lease

FOCUS ON


SPECIAL EDITION


P.O. BOX 419LONG BEACH, NY 11561

Tel: 888-805-8282Fax: 516-706-1275Text: 321-480-1678

APPEARANCES IN QUEENS COUNTY

E-mail: [email protected]

Diana C. GianturcoATTORNEY AT LAW

Chris McDonough, Esq.PROFESSIONAL DISCIPLINARY MATTERS

Over 20 years experience

Grievances • Character and Fitness • Law School Matters • Opinions

~ Please Note New Firm Name and Address

McDonough and McDonough, LLP1400 Old Country Road, Ste 102, Westbury, NY 11590

516-333-2006

[email protected] newyorkethicslawyer.com


____________________By Joseph W. Ryan, Jr.

“The only person who can’t daydream in the court-room—is the court reporter,” quipped Chief JudgeRaymond J. Dearie at the Grand Opening of The Galleryof Shorthand at the Central Islip Federal Courthouse onSeptember 30, 2010.

The Gallery is the brainchild of federal court reporterDominick M. Tursi, and the product of investment by theBoard of Judges for the Eastern District of New York.The Gallery chronicles the origin of shorthand from 63BC, when Roman statesman-philosopher-lawyer MarcusTullius Cicero invented a shorthand system. It continuesthrough ten epochs, concluding with today’s “realtime”simultaneous reporting of the spoken word. There areartifact replicas, 30 stenotype machines, 50 books and 20illustrations of historic trials and events, including theNuremberg prosecution of the Nazi regime. Also promi-nently displayed are the works of Sir Isaac Pittman and

Robert Gregg, founders of the more recent methods ofshorthand.

Attended by more than 150 people, including judges,

lawyers, historians, and court reporters who travelledfrom all parts of the U.S., the Gallery drew waves ofpraise. Ms. Melanie Humphrey-Sonntag, President ofthe National Court Reporters Association, addressed theaudience saying, “There is nowhere a testament of thismagnitude – a permanent exhibit to the importance of thecourt reporting profession.”

After conducting lectures and tours of the Gallerybefore the ceremony, Mr. Tursi addressed the audienceand expressed his deep gratitude to the Board of Judgesfor affording him the opportunity to build a “shorthandmuseum” –believed to be the only one of its kind.

The Gallery is open to the public during regular courthours, and is located at the rotunda entrance of theCourthouse. Don’t miss it!!

Note: Joseph W. Ryan was Project Coordinator for theGallery, and served as Past President of the BarAssociation of Nassau County.

The Gallery of Shorthand Opens

_______________By Gisella Rivera

Beginning July 21, 2010, who can buyand to whom companies can sell private-ly placed securities changed whenPresident Obama signed into law theDodd-Frank Wall Street Reform andConsumer Protection Act (the “Dodd-Frank Act”). Individual investors can nolonger include the value of their primaryresidence when calculating their networth for purposes of determiningwhether they are eligible, as “accreditedinvestors,” to purchase unregistered andunlisted securities issued by companiesin private placements.1

Under the U.S. Securities Act of 1933

(the “Securities Act”), an individualinvestor qualifies as an accreditedinvestor when, at the time of purchase, hehas a net worth (or a joint net worth withhis spouse) that is at least $1,000,0002 oran income of $200,000 (or a joint incomewith his spouse of $300,000) in each ofthe two most recent years and has a rea-sonable expectation of reaching the sameincome level in the year of investment.3

This change is meant to address con-cerns by U.S. regulators that an increas-ing number of individual investors quali-fied as accredited investors primarily dueto inflation and rising real estate prices.Regulators were apprehensive that indi-vidual investors to whom offers of pri-vately placed securities were made didnot have, at the time of purchase, the req-uisite sophistication and financial knowl-edge necessary to fully understand therisks underlying such investments.4

Small companies in need of capital gen-erally look to individual investors when

they are not able to obtain fund-ing through traditional bankfinancing. Individual investorsmay prefer to invest in these pri-vately placed securities becauseof the potential for higherreturns. By excluding the valueof an individual investor’s pri-mary residence, Congress hasreduced the number of qualifiedindividuals who can invest inprivately placed securities and to whomcompanies can market privately placedsecurities.

Under the Securities Act, companiesmay sell privately placed securities to anunlimited number of accredited investorsbut may only sell to no more than 35non-accredited investors and only if theyprovide these non-accredited investorswith sufficient information about thesecurities.5 Companies generally providethis information to investors through aconfidential offering memorandumdescribing the material terms of theoffering and the related investmentrisks.6 Small companies continuing tomarket to investors who no longer quali-fy as “accredited investors” will have toincur the additional expense of preparingan offering memorandum.

A company who calls for additionalcapital contributions from its currentinvestors is treated by the SEC as issuingadditional securities in an offering thatmust comply with private placementrules if its investors can choose to makeor not make such capital contributions.7These companies may not be able to callcapital from investors who no longerqualify as “accredited investors” until anupdated offering memorandum is provid-ed. If there are more than 35 non-accred-ited investors in the list of a company’sinvestors, the company may want todetermine what its legal options are whenraising capital. Can it force these non-accredited investors to sell their securi-ties back to the company or to a thirdparty who is an accredited investor?Must it force all of the non-accreditedinvestors to sell? How will the companyvalue the securities? The same issuesmay apply to companies who will beissuing unregistered and unlisted securi-ties in reliance on the private placementrules in connection with exchange offers,

mergers or other types of busi-ness combinations.8

The accredited investor stan-dard is also used by commoditypool operators who are seekingan exemption from registrationwith the U.S. CommodityFutures Trading Commission.Commod-ity pool operators maybe exempt from registration if,amongst other criteria, all partic-

ipants in the commodity pool are accred-ited investors.9 A single non-accreditedinvestor in a qualified commodity poolwould make the commodity pool opera-tor subject to registration unless it is ableto forcibly redeem the interests of thenon-accredited investor.

Individual investors should take outtheir calculators and determine if they arestill eligible as accredited investors underthe Dodd-Frank Act. Investors generallycomplete and submit subscription agree-ments when purchasing privately placedsecurities. These subscription agree-ments may require investors to informthe issuer of any change in their status,particularly with respect to their qualifi-cation as accredited investors. The sub-scription agreements may also providethat investors reaffirm all of their initialrepresentations each time additional pur-chases of securities are made. Investorswho no longer qualify may be in breachof their obligation to inform an issuer orof a continuing representation as anaccredited investor. These investors mayhave to indemnify any losses incurred byan issuer due to their breach. Individualinvestors who no longer qualify may alsobe required to sell their securities onterms that may not be favorable.

Companies and investors can expectfurther changes to the accredited investorstandard since the Dodd-Frank Act pro-vides the SEC with the mandate toadjust, in its entirety, the financial stan-dards under which an investor can quali-fy as an accredited investor every fouryears after July 21, 2010.10

What can we expect from the SEC inthe performance of its mandate under theDodd-Frank Act?

As early as December 2006, the SEChad expressed concerns that an increas-ing number of individuals are qualifyingas accredited investors primarily due to

inflation and the rapidly increasingprices of the housing market.11 Theseindividuals are, therefore, gaining accessto financial products, such as privatefunds, that are complex and possess ahigher degree of risk, and about whichvery little information are available.12

The SEC addressed these concerns byproposing an amendment to the accredit-ed investor standard that would haverequired investors to own at least$2,500,000 (individually or jointly withsuch person’s spouse) of investments,13

adjusted for inflation every five years.14

The SEC believed that the amount ofinvestments owned by an investor ismore indicative of whether the investorneeds the protection of the Securities Actregistration.15 Although this amendmentwas never implemented due to substan-tial concerns received during the com-ment period,16 in the current political andeconomic environment, it is likely thatthe SEC will seek to implement measuresintended to protect investors. These mayinclude the adoption of an investment-owned standard over the current asset-owned standard either as an addedrequirement or in replacement of the cur-rent financial thresholds. In addition, theSEC would not have grandfathered indi-vidual investors who no longer qualify sothat these investors would not be able tomake future investments even in privatefunds with which they are currentlyinvested.17

If the SEC adopts an investmentowned standard, it is likely that it willrequire investors to include only certaininvestments in calculating whether theyqualify as accredited investors under theinvestment-owned standard. 18 Under thepreviously proposed amendment, anindividual investor would not have beenable to include, as investments, the valueof real estate used primarily for personalpurposes (i.e. as a primary residence) oras a place of business, or securities ofcompanies that he controls and whosecapitalization is less than $50 million.19

In addition, under the previously pro-posed amendment, married investorswho are investing individually, not joint-ly with their spouse, would have beenable to include only 50 percent of anyinvestments held jointly or as communi-

Accredited Investor Today Not TomorrowAccredited investor standard under Dodd-Frank Act

CORPORATE LAW

Gisella Rivera

Individual investorsshould take out their calculators and determine if they are stilleligible as accreditedinvestors under the Dodd-Frank Act.

“

”



_________________ By Craig D. Robins

One of the extraordinary powers a con-sumer debtor has is the ability to avoid(eliminate) judicial liens in a bankruptcycase provided certain conditions are met.

In a typical bankruptcy filing the debtorcan discharge the personal liability onmost debts – both secured and unsecured.However, in rem liens on real estate,including mortgages and judicial liensobtained from judgments, remain protect-ed.

The discharge prevents lien holdersfrom pursuing the debtor personally to col-lect on the underlying obligation; howev-er, the lien holder maintains the value of itssecurity interest as a lien against the realestate. Consumer debtors have the ability

to avoid judicial liens to theextent that the lien impairs thedebtor’s homestead exemption.

In this month’s column I willprovide a brief background onjudicial liens and the process toavoid them. I will then discussan interesting recent decision byJudge Grossman which holdsthat avoiding a judicial lien in aChapter 13 case should be effec-tive immediately, rather than years laterwhen the debtor receives his discharge.

How do creditors obtain judicialliens?

When a creditor sues a consumer andobtains a judgment, the judgment canbecome a lien on real estate that the con-

sumer owns. If the creditorobtains the judgment in SupremeCourt, then it automaticallybecomes a lien on any real estateowned by the debtor in the countywhere the court is located.

If the creditor obtains the judg-ment in District Court, then thecreditor must file a transcript ofjudgment with the County Clerkin order to obtain a lien on realty

in that county. Judicial liens are alwayssubordinate to any other liens of recordsuch as existing mortgages.

When a consumer debtor files for bank-ruptcy relief – which is usually done underChapter 7 or 13 – the debtor can avoidjudicial liens which impair the debtor’shomestead exemption as long as the for-mula set forth in Bankruptcy Code Section522(f) is satisfied.

If the lien only partially impairs thehomestead exemption, the debtor canavoid that part of the lien, essentiallyreducing it.

Procedure for avoiding judicial liensA debtor bringing an application to

avoid a judicial lien must do so by motion,as opposed to adversary proceeding. Thisis usually done prior to discharge.

The debtor actually has the burden of fil-ing the motion. If the debtor fails to do so,the lien remains on the property and sur-vives bankruptcy, although the creditor is

prevented by virtue of the automatic stayand order of discharge from pursuing thedebtor personally.

Creditors can object to a motion to avoida judicial lien. The most common groundis a dispute over the valuation of the realestate, thus creating an issue as to whetherthe debtor’s homestead exemption is actu-ally impaired.

If the debtor is successful, the court willgrant the motion and enter an order declar-ing the judgment to be void as a lien ofrecord. The debtor must then file a certi-fied copy of the order with the CountyClerk to remove the judgment lien fromthe judgment roll.

When should the order granting lienavoidance become effective?

In Chapter 7 cases, the order is effectiveimmediately. However, a unique issueexists in Chapter 13 cases. This isbecause a great number of Chapter 13cases eventually fail, resulting in dismissalof the case and no discharge for the debtor.An argument can be made that a debtorshould not be permitted to finalize theavoidance of a judicial lien by expungingit from the public records of the CountyClerk if the Chapter 13 case can be dis-missed for non-payment of Chapter 13obligations a few months later.

So here’s the big question: Should aChapter 13 debtor be able to avoid a judi-

Avoiding Judicial Liens in Chapter 13 CasesNew decision says avoidance not dependant on discharge

CONSUMER BANKRUPTCY

Craig D. Robins

___________________By Eugene D. Berman

This month we discuss a deci-sion in which the United StatesCourt of Appeals for the SecondCircuit vacated the dismissal ofa Lanham Act (15 U.S.C.§§ 1051, et seq.) action.

Famous Horse Inc. v. 5th Ave.Photo Inc., No. 08-4523-cv, 2010WL 4117673 (2d Cir. October21, 2010), concerned claims of trademarkinfringement under Lanham Act Section32(1)(a), 15 U.S.C. § 1114(1)(a), andunfair competition and false endorsementunder Lanham Act Section 43(a)(1)(A), 15U.S.C. § 1125(a)(1)(A). Famous Horsesells name-brand sneakers and jeans at dis-count prices through its “V.I.M.” clothingstores. The original and amended com-plaints asserted that the defendants soldcounterfeit “Rocawear” brand jeans toV.I.M., as well as to several other retailstores, and that V.I.M. discontinued sellingthe jeans when it learned that they werecounterfeit. Famous Horse additionallyclaimed that the defendants continued tosell the counterfeit Rocawear jeans toV.I.M.’s competitors, and, in advertisingthe counterfeit jeans to the other retailers,used Famous Horse’s registered V.I.M.mark in connection with false claims thatV.I.M. was a satisfied customer.

The district court dismissed the actionfor failure to state a cause of action. In itsview, Famous Horse’s failure to plead alikelihood of confusion concerning thesource of a product’s origin was fatal toboth its Section 32 and Section 43(a)claims. In this regard, the district courtheld that the Lanham Act Section 32claim failed because Famous Horse hadnot pleaded that the defendants’ use of theV.I.M. registered mark was likely tocause confusion as to the source of aproduct and the Lanham Act Section43(a) cause was defective since the com-plaint did not assert a likelihood of confu-sion between Famous Horse’s and thedefendants’ products.

In vacating the dismissal, the SecondCircuit examined the Lanham Act sec-tions’ statutory language, and found thatlikelihood of confusion concerning thesource of a product’s origin is not the only

ground on which causes ofactions may be based. The courtfirst reviewed Section 43(a), andheld that the section “specificallyprohibits false or misleading rep-resentation producing many dif-ferent types of consumer confu-sion.” Famous Horse Inc., 2010WL 4117673*2.

As relevant to Famous Horse’scomplaint, Section 43(a) pro-

hibits:any word, term, name, symbol, or

device, or any combination thereof,or any false designation of origin,false or misleading description offact, or false or misleading represen-tation of fact, which … is likely tocause confusion, or to cause mistake,or to deceive as to the affiliation,connection, or association of suchperson with another person, or as tothe origin, sponsorship, or approvalof his or her goods, services, or com-mercial activities by another person.

15 U.S.C. § 1125(a)(1)(A) (emphasisadded). Based on the statute’s language,the Second Circuit found that FamousHorse’s assertion that the defendantsfalsely claimed that V.I.M. was a satisfiedcustomer was actionable as a falseendorsement claim under Section 43(a)’sprohibition against false or misleadingrepresentation as to the approval of anoth-er person’s commercial activities.

Section 32, in contrast to Section 43(a),does not, by its language, specifically pro-hibit causing confusion as to associationor sponsorship of commercial activities.Rather, using more general language,Section 32 prohibits:

any reproduction, counterfeit,copy, or colorable imitation of a reg-istered mark in connection with thesale, offering for sale, distribution, oradvertising of any goods or serviceson or in connection with which suchuse is likely to cause confusion, or tocause mistake, or to deceive …

15 U.S.C. § 1114(1)(a). Thus, contraryto the district court’s view, Section 32 isnot limited to confusion as to a product’s

Famous Horse StandingSECOND CIRCUIT BRIETS

Eugene D. Berman(Continued on page 18)


More work than you can get to?

Not enough hours in the day?

Let me help you increase your profitsand get that work off your desk.

Call today for top-quality research, writing, & litigation support.

1134 Lake Shore Drive, Massapequa Park, NY 11762 www.blasielaw.com

GAIL M. BLASIE, ESQ.Licensed in NY and CA

(516) 457-9169

35 years of experience in Deportation/Removal casesOffices in Huntington Station and Central Islip

631-232-9555 • www.davidsperlinglaw.com • [email protected]

Law Offices of David M. SperlingAdvisory Opinions Detention Cases Federal AppealsDavid Sperling • Viviana Medina • H. Raymond Fasano (of Counsel)

ATTENTION: DEFENSE ATTORNEYSSupreme Court now requires that defendants be advised

of immigration consequences of their plea.Padilla V. Kentucky, 559 U.S. — 2010

A V O I D M A L P R A C T I C E


Honoring Those Who Give of ThemselvesPro Bono Recognition Night

Ph

oto

s by B

arry

M. S

molo

witz


Wine Tasting 2010 - Best One Yet!!!

Ph

oto

s by B

arry

M. S

molo

witz


____________________By Lance R. Pomerantz

Real estate practitioners around thestate took notice when the adverse pos-session statutes underwent a major over-haul in 2008 (L. 2008 c. 269). For thefirst time, New York has explicit statuto-ry recognition that an adverse possessor“gains title” to the occupied propertyupon the expiration of the statute of limi-tations for an action to recover the prop-erty.1 In this respect, New York hasjoined several other states, as well asEngland,2 where the concept of adversepossession dates back to 1275.3

Under prior law, the acquisition of titleby the adverse possessor was held to be anecessary corollary to the barring of the“true owner’s” right to bring an actionseeking recovery of the property.4Unfortunately, the new statute goes fur-ther than merely codifying widely accept-ed law. And, in so doing, creates a sub-stantial ambiguity that was not presentunder prior law.

Among the many significant changesintroduced by the new statutes, is therequirement that the adverse possessor“gains title” only if the occupancy com-plies with the long-established common-law requirements5 and the possessor areacting under a “claim of right.”6 “Claim

of right’” as used in the statute,is defined in RPAPL §501(3) as“a reasonable basis for thebelief that the property belongsto the adverse possessor….”Apparently, the statute requiresthat possessors not only provethey believe that the propertyalready belongs to them, butthat the belief must be “reason-able.” Since the doctrine ofadverse possession was devel-oped specifically for the purpose of quiet-ing titles that originated in wrongful pos-session,7 this new requirement representsan historic departure from the commonlaw. It also imposes a substantial burdenon claimants to which they were hithertonot subject.8

RPAPL §501(1) defines an “adversepossessor” as one who occupies realproperty “in a manner that would give theowner a cause of action for ejectment.”However, by conditioning the adversepossessor’s right to obtain title on ashowing of prior entitlement, in additionto those acts that would be sufficient togive rise to an action in ejectment, thelegislature has created a gap in the avail-able remedy. An “adverse possessor” canenter into adverse, open, notorious, con-tinuous, exclusive and actual occupancy

of a parcel, protect it with a sub-stantial enclosure,9 remain insuch possession in excess of tenyears, yet still not obtain title. Inthe meantime, however, thestatute of limitations to recoverpossession of the property(RPAPL §212) will have run asagainst the “true owner.” Hence,the “true owner” has “naked title”to the land. The possessor, how-ever, continues in possession and

cannot be ejected by legal process.The question then arises: what is the

legal nature of this possession?Obviously, it’s not a freehold estate. Noris it a leasehold, a tenancy at will, or atsufferance. Will the courts defend theright of the possessor against trespassersor other “off-record” interests? Can thepossessor transfer possession to anotherpossessor who also asserts no claim ofright? Or, will that trigger the running ofthe statute of limitations afresh? Will itpass to the heirs, legatees or devisees ofthe possessor upon death? These andother questions will need to be answeredby the courts on a case-by-case basis.

The Senate Sponsor’s Memorandum insupport of the 2008 legislation portrays itas a remedy to perceived “offensive” useof adverse possession to wrongfully

deprive landowners of property.10

Ironically, the legislature wound up creat-ing a scheme whereby an out-of-posses-sion landowner may be left with no prac-tical remedy at all!

Note: Lance R. Pomerantz is a solopractitioner who provides expert testimo-ny, consultation and litigation support inland title disputes. He can be reached byemail at [email protected]. Learnmore at www.LandTitleLaw.com.

1 RPAPL §501(2), as amended by L. 2008 c.269, §1.2 See III American Law of Property §15.1, pg. 757

(fn. 6) (Casner ed., 1952).3 Statute of Westminster I, 3 Edw. I, c. 39 (1275).4 Brand v. Prince, 35 NY 2d 634, 636 (1974); III

American Law of Property §15.2, pg. 760 (at fn.3 and cases cited) (Casner ed., 1952).

5 I.e. the possession is adverse, open, notorious,continuous, exclusive and actual.

6 RPAPL §501(2).7 See American Law of Property, supra., note 4.8 See, e.g. Franza v. Olin, 73 AD 3d 44 (4th Dept.

2010), where the court held that the 2008 amend-ments were unconstitutional as applied to theplaintiff adverse possessor because they woulddeprive her of a previously vested property right,viz., the vesting of title by adverse possessionunder prior law.

9 RPAPL §512, as amended by L. 2008 c.269, §3and RPAPL §522, as amended by L. 2008 c.269,§5.

10 See Senator Elizabeth Little’s Memorandum insupport of N.Y. Leg. Bill S-7915-C.

Demonic Possession: What hath the Legislature Wrought?REAL ESTATE

Lance R.Pomerantz

______________________By Ilene Sherwyn Cooper

Attorney’s FeesIn In re Rodriquez, the petitioner, one of

the two sons, requested an order, inter alia,directing payment of his distributive shareof the estate, a portion of which was previ-ously ordered, denying administrator’scommissions, and surcharging the admin-istrator for the fees incurred by the peti-tioner for the fees incurred in bring theapplication and a prior application for adistributive share, payable from theadministrator’s own funds or his presump-tive share of the estate.

The decedent died intestate, and lettersof administration issued to the respondenton consent of the petitioner upon his post-ing a bond. Thereafter, the petitioner andhis counsel requested the respondent toaccount and to produce documents. Anaccount was prepared but never signed.Based upon a prior petition filed with thecourt by the petitioner, the respondent wasordered to pay the petitioner his distribu-tive share and to account. The respondentfailed to comply with these directives.

As a consequence, the petitioner institut-ed the proceeding seeking the relief subjudice. The respondent failed to opposethe application. As a consequence of therespondent’s default, the uncontrovertedallegations in the petition regarding theadministrator’s failure to comply with thecourt’s directives, to pay the petitioner hisdistributive share and to account weredeemed due proof thereof pursuant toSCPA 509.

In view of the administrator’s failure toaccount and to distribute estate assets, hewas denied commissions. As such, thepetitioner was awarded an additional dis-tributive share of the estate equal to onehalf the commissions that otherwise wouldhave been paid to respondent. In addition,the petitioner’s request for his reasonable

legal fees, costs and disburse-ments incurred in commencingthe proceedings to recover his dis-tributive share was granted, pur-suant to Matter of Hyde, supra.The court directed that saidaward, as well as the distributiveshare of the petitioner be paid inthe first instance by the respon-dent personally or from his dis-tributive share before the suretywas held liable for such sums.

In re Rodriquez, N.Y.L.J., July 23,2010, p. 35 (Sur. Ct. Bronx County).

Discovery ProceedingsIn In re Delgatto, the court denied a

motion and cross-motion for summaryjudgment finding that there were triableissues of fact regarding the decedent’smental capacity to execute a revocableliving trust and deed to which title to hishome was transferred.

In support of their respective motions,the petitioner and the respondent submit-ted affirmations of their respective coun-sel with exhibits, including but not limit-ed to unsigned, unsworn deposition tran-scripts. The court noted that an attorney’saffirmation is of no probative value on amotion for summary judgment unless theattorney has first hand knowledge of thefacts, or is accompanied by documentaryevidence that constitutes admissibleproof. However, neither attorney repre-sented that he had personal knowledge ofthe facts. Moreover, the court opined thatthe deposition transcripts were of no pro-bative value, because they were unsigned,and there had been no indication that thedeponent had refused or otherwise failedto sign the transcript within 60 days afterit was delivered for signature.

Within this context, the court conclud-ed that the respondent had failed to sub-mit sufficient proof that the decedent had

the requisite capacity to sign theinstruments in issue. Althoughrespondent had proffered hospi-tal and nursing records in sup-port of her position, the courtheld that the affidavits of nurs-ing and medical personnel sub-mitted by the petitioner weresufficient to create a question offact. Further, while the courtconcluded that the petitioner

had not established a prima facie case ofundue influence, it found that a confiden-tial relationship existed between therespondent and the decedent which shift-ed the burden to the respondent to explainthe circumstances surrounding the trans-actions. The court determined that a ques-tion of fact existed as to whether the prof-fered explanation was adequate.

In re Delgatto, N.Y.L.J., April 6,2010, p. 27 (Sur. Ct. Kings County).

MarriageIn In re Farraj, the Appellate Division

affirmed an Order of the Surrogate’sCourt, Kings County (Torres, S.), whichdenied the fiduciary’s motion to dismiss apetition for a compulsory accounting. Thepetitioner was the alleged spouse of thedecedent. The record revealed that thepetitioner and the decedent entered into aformal marriage ceremony in accordancewith the laws of Islam at the home of thepetitioner’s brother in New Jersey. AnIslamic clergyman came to New Jersey tosolemnize the marriage, although a mar-riage license was not obtained.Thereafter, the petitioner and the dece-dent returned to Brooklyn to hold a wed-ding celebration. They resided in NewYork until the decedent’s death, intestate,in 2007. The decedent’s son from a priormarriage obtained letters of administra-tion with respect to his estate. Thereafter,the petitioner moved to compel an

accounting, and the fiduciary moved todismiss alleging that the petitioner wasnot the decedent’s surviving spouse, sinceher marriage to him was not valid underthe laws of New Jersey.

The Surrogate’s Court denied themotion, and the Appellate Divisionaffirmed, concluding that New York lawshould apply to determine the validity ofthe marriage, and that under New Yorklaw the marriage was valid, even withouta marriage license, since it was solem-nized. In reaching this result, the courtrelied upon the Restatement Second ofConflict of Laws §283, which providesthat the validity of a marriage will bedetermined by the local law of the statewhich, with respect to the particular issue,has the most significant relationship to thespouses and the marriage. Analyzing thecircumstances surrounding the marriagefrom this perspective, the court noted thatthe petitioner and the decedent were mar-ried in New Jersey only to satisfy Islamiclaw, which requires that the parties bemarried at the residence of the bride’seldest male relative. However, thereafter,they resided in New York and held them-selves out as a married couple in NewYork. The court found that New Jersey’scontacts with the couple were tangential,since they left the state immediately afterthe marriage ceremony to return to NewYork, where they remained for the entire-ty of their marriage.

In re Farraj, 72 A.D.2d 1082, 900N.Y.S.2d 340 (2d Dep’t 2010).

Note: Ilene Sherwyn Cooper is a part-ner with the law firm of Farrell Fritz,P.C., where she concentrates in the fieldof trusts and estates. In addition, she isimmediate past president of the SuffolkCounty Bar Association and a member ofthe advisory Committee of the SuffolkAcademy of Law.

TRUSTS AND ESTATES UPDATE

Ilene S. Cooper


__________________By David J. Eldridge

As a result of the nationalforeclosure crisis and subse-quent avalanche of paperworksubmitted by purportedly fraud-ulent “robo-signers” of insuffi-cient and highly questionableforeclosure papers, includingaffidavits and other relatedforeclosure documents, NewYork’s Court System has imposed a newrule upon attorneys throughout the state.

The Chief Judge and Court Administrationfurther defined the problem during theissuance of the new court directive:

During and after August 2010,numerous and widespread insuffi-ciencies in foreclosure filings in vari-ous courts around the nation werereported by major mortgage lendersand other authorities. These insuffi-ciencies include: failure of plaintiffsand their counsel to review docu-ments and files to establish standingand other foreclosure requisites; filingof notarized affidavits which falselyattest to such review and to other crit-ical facts in the foreclosure process;and “robosignature” of documents byparties and counsel. The wrongful fil-ing and prosecution of foreclosureproceedings which are discovered tosuffer from these defects may because for disciplinary and other sanc-tions upon participating counsel.Based upon these widespread problems

experienced throughout the country,Chief Judge Lippman squarely addressedthe matter, stating that, “[w]e cannotallow the courts in New York to stand byidly and be party to what we now know isa deeply flawed process, especially whenthat process involves basic human needs –such as a family home.”

As a result, effective immediately, cit-ing, inter alia, CPLR §2106, the new rulerequires counsel in residential foreclosureactions to verify (via submission of asworn affirmation) the following:a That he or she is licensed to practice in

the state of New York, including the

name of the law firm with whichthey are employed; andb That they directly communicat-ed with a representative of theforeclosing plaintiff, including thename and title of said representa-tive; andc That the attorney has reviewedthe plaintiff’s documents andrecords relating to the case,including the Summons and

Complaint, and all other papers filedin support of foreclosure; and

d That the attorney has confirmed (i) boththe factual accuracy of all filed foreclo-sure papers; and (ii) the accuracy of thenotarizations contained therein (onemust wonder how an attorney inSuffolk County is supposed to “confirmthe factual accuracy” of an out-of-statenotarization from a bank in Utah); and

e That, based upon the attorney’s commu-nications with the plaintiff’s represen-tative, their “own inspection” of thepapers filed, and through “diligentinquiry,” to the best of his or her knowl-edge, information and belief, theSummons, Complaint, and all otherdocuments filed in support of foreclo-sure are “complete and accurate in allrelevant respects”; and

f That the attorney understands the con-tinuing obligation to amend his or heraffirmation in light of newly discoveredfacts subsequent to filing; and

g That the attorney understands the courtwill rely upon his or her affirmation inconsidering the application.While the new directive is silent as to

what the penalties may be for failure tocomply, and no case law currently existsto provide further insight, it is clear thatthe new rule creates a significant obliga-tion on the part of attorney handling suchmatters, and the court has made clear itintends to swiftly and unabashedlyaddress and correct any and all such fail-ures taking place in the State of NewYork with the full power and authority ofthe Unified Court System – backed bythe full support of Chief Judge Lippman.

The official form is included to theright.

Robolawyers Beware!CIVIL LITIGATION CORNER

David J. Eldridge

___________________By Robert M. Harper

As the Surrogate’s Court is a court oflimited jurisdiction, an interesting issueexists with respect to whether a surrogatemay exercise jurisdiction over a share-holder derivative suit. Like so manyother jurisdictional issues, the answer isnot necessary clear cut.

The Surrogate’s Court derives its juris-diction from Article VI of the New YorkConstitution. Under Article VI, theSurrogate’s Court is vested with “juris-diction over all actions and proceedingsrelating to the affairs of decedents, pro-bate of wills, administration of estatesand actions and proceedings arising here-under or pertaining thereto, guardianshipof the property of minors, and such otheractions and proceedings, not within theexclusive jurisdiction of the supremecourt, as may be provided by law.”1

The standard set forth by the Court of

Appeals in Matter of Piccione,the seminal case on Surrogate’sCourt jurisdiction, is whetherthe controversy “affects theaffairs of the decedent or theadministration of the estate”.2If the matter in “no way affectsthe affairs of the decedent or theadministration of the estate,”the Surrogate’s Court mustdecline jurisdiction.

Under Piccione, the simple fact that anestate or trust “owns stock in a corpora-tion does not [necessarily] confer juris-diction upon [the] Surrogate’s Court toresolve all matters involving the corpora-tion.”3 Rather, as Nassau CountySurrogate John B. Riordan explained inMatter of Baum, questions concerningcorporate affairs typically “should . . . belitigated in the Supreme Court.”4

Indeed, many courts have held thatSurrogate’s Court jurisdiction does not

encompass shareholder deriva-tive actions.5 For example, inLincoln First Bank, N.A. v.Sanford, the Appellate Division,Fourth Department, held that theSurrogate’s Court lacked juris-diction over a shareholder deriva-tive action “instituted by anexecutor and testamentary trusteeon behalf of the estate of adeceased” shareholder.6 The

court reasoned that: (1) it was the corpo-ration in question, not the estate, thatstood to benefit from the action, as thepetitioner sought the return of cashreserves to the corporation; and (2)“[t]here [was] no demonstration that [the]decedent’s stock [was] to be sold and theproceeds distributed as part of the admin-istration of the estate or the testamentarytrust.”

Despite that line of cases, however, thatis “not to say that all shareholder deriva-

tive actions are outside the jurisdiction ofthe Surrogate’s Court”.7 As several sur-rogates have acknowledged, “[t]he trendis one of steadily expanding jurisdiction’,and may include shareholder derivativeactions where the relief sought woulddirectly benefit the estate.” Thus, “whereit is demonstrated that [a] decedent’sstock is to be sold and the proceeds dis-tributed as part of the administration ofthe estate, or where the valuation of stockis involved, or where a shareholder deriv-ative action is commenced against theestate, the matter would sufficientlyinvolve the affairs of the decedent toinvoke the jurisdiction of the Surrogate’sCourt.”

Matter of Denton is instructive. InDenton, the petitioner, the executor andco-trustee under his father’s will, com-menced a discovery proceeding againstthe respondent, the decedent’s business

Surrogate’s Court Jurisdiction Over Shareholder Derivative SuitsTRUSTS AND ESTATES

Robert M. Harper

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF _____________________________________________________________Plaintiff,

AFFIRMATIONv.

Index No.: _______Defendant(s)

Mortgaged Premises:___________________________________________________________________

N.B.: During and after August 2010, numerous and widespread insuffi-ciencies in foreclosure filings in various courts around the nation werereported by major mortgage lenders and other authorities. These insuf-ficiencies include: failure of plaintiffs and their counsel to review docu-ments and files to establish standing and other foreclosure requisites;filing of notarized affidavits which falsely attest to such review and toother critical facts in the foreclosure process; and “robosignature” ofdocuments by parties and counsel. The wrongful filing and prosecutionof foreclosure proceedings which are discovered to suffer from thesedefects may be cause for disciplinary and other sanctions upon partici-pating counsel.

* * *

[________________], Esq., pursuant to CPLR §2106 and under the penalties of perjury,affirms as follows:

1. I am an attorney at law duly licensed to practice in the state of New York and am affiliatedwith the Law Firm of _____________________________, the attorneys of record for Plaintiffin the above-captioned mortgage foreclosure action. As such, I am fully aware of the underly-ing action, as well as the proceedings had herein.

2. On the date of __________, I communicated with [name and title:]_______________________, a representative of Plaintiff, who informed me that he/she (a) haspersonally reviewed plaintiff’s documents and records relating to this case; (b) has reviewedthe Summons and Complaint, and all other papers filed in this matter in support of foreclosure;and (c) has confirmed both the factual accuracy of these court filings and the accuracy of thenotarizations contained therein.

3. Based upon my communication with [person specified in ¶2] _____________________, aswell as upon my own inspection of the papers filed with the Court and other diligent inquiry,I certify that, to the best of my knowledge, information, and belief, the Summons andComplaint and all other documents filed in support of this action for foreclosure are completeand accurate in all relevant respects. I understand my continuing obligation to amend thisAffirmation in light of newly discovered facts following its filing.

4. I understand that the Court will rely on this Affirmation in considering the application.

_______________________________DATED:


Note: J. David Eldridge is a part-ner at Taylor Eldridge, P.C., locatedin Smithtown, New York, with empha-sis in civil litigation, real property,and Condominium, Cooperative andHOA law. A Past-Director of the

Suffolk County Bar Association andfrequent contributor to The SuffolkLawyer, he is currently Co-chair ofthe Legislative Review Committeeand a member of the Bar’s GrievanceCommittee.

cial lien shortly after filing the case? Orshould the effectiveness of the lien avoid-ance be dependant upon the debtor demon-strating 100 percent success with the bank-ruptcy, which means fulfilling all obliga-tions under the Chapter 13 plan over a peri-od that is three to five years?

In a case where there is no binding caselaw in the Second Circuit, Judge Robert E.Grossman, sitting in the Central IslipBankruptcy Court, just issued a decision onOctober 26, 2010 in which he determinedthat a Chapter 13 debtor who avoids a judg-ment lien pursuant to Section 522(f) shouldnot have to wait until discharge for theorder to become effective. In re: KathleenMulder, no. 10-74217, (Bankr. E.D. NewYork 2010). In doing so, he reversed thecourt’s policy of many years.

In the Mulder case, the debtor owned ahome worth $255,000 at the time of filing.There were mortgages on the property total-ing $220,000. Thus there was about$35,000 worth of equity. The debtor wasentitled to exempt up to $50,000 worth ofequity under her New York homesteadexemption.

At the time of filing, there was a judg-

ment lien in the sum of $160,000. Thedebtor, who was represented by my col-league, Donna M. Fiorelli of Garden City,filed a routine motion to avoid the judgmentlien. The creditor filed a limited objectionarguing that its rights would be severelyprejudiced if the court permitted the debtorto expunge the lien prior to discharge.

The sole issue before the court waswhether Section 522(f) lien avoidance iseffective immediately or whether it must beconditioned upon the entry of a discharge inthe case. (There was no dispute that the lienshould be avoided).

The court overruled the judgment credi-tor’s objection and permitted the debtor toimmediately expunge the lien, finding noth-ing in the code to prohibit this. In reachingthis conclusion, the court adopted theminority view in this country and essential-ly changed the policy of the court in CentralIslip (or at least those cases before JudgeGrossman).

The court pointed out that other provi-sions of the code protect the creditor, in par-ticular, Section 349 which provides thatwhen a case is dismissed; all property rightsare restored to the position in which they

were found at the commencement of thecase. Thus, Section 349 automatically rein-states liens avoided by Section 522(f).

However, as a practical matter, this is notautomatic, and if the debtor expunges thelien and the case it later dismissed, it placesa burden on the judgment creditor to imme-diately take steps to protect itself.

Judge Grossman pointed out that theminority view seeks to preserve the func-tion of Section 349 if the case is dismissed.“Courts which condition lien avoidance onthe entry of a discharge perceive a weak-ness in the code that could adversely affectjudgment lien holders. . .” However, hefound good cause to part from this viewbecause the code does not explicitly providefor this.

It appears that Judge Grossman’sapproach here greatly differs from hisapproach in other cases. Here he has takena strict constructionist approach, stating,“the court finds that the words of Section522(f) are clear, and when reading a statute,if the meaning is clear, the analysis endsthere.”

He also quoted another decision stating,“Congress ‘says in a statute what it means

and means in a statute what is says there.’”He concluded, “While this court shares asimilar frustration with what appears to bedrafting deficiencies of the code, this courtis bound by the plain meaning of thestatute.”

Yet, most of Judge Grossman’s previousdecisions have been more geared towardsreaching a logical outcome, as opposed tociting strict constructionist grounds, some-thing I addressed in my March 2010 col-umn. In any event, this decision is a winfor the consumer.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast twenty years. He has offices in Coram,Mastic, West Babylon, Patchogue,Commack, Woodbury and Valley Stream.(516) 496-0800. He can be reached [email protected]. Pleasevisit his Bankruptcy Website:www.BankruptcyCanHelp.com and hisBankruptcy Blog: www.LongIslandBankruptcyBlog.com.


______________ By Rhoda Selvin

When Carole A. Burns, a retired NassauCounty attorney, and her semi-retired hus-band Jim moved to Rocky Point, she alsomoved her extensive pro bono activitiesfrom Nassau’s Volunteer Lawyers Project(VLP) to Suffolk’s Pro Bono Project.Previously VLP had honored her and her

Garden City firm as Pro Bono Attorney ofthe Month in March 2003.

Later, in December 2006, VLP honoredher by herself for the pro bono hours shehad spent as an in-house volunteer sinceher retirement two years earlier. Now, as

a Suffolk County resident since August2009, having spent 152 hours as an in-house volunteer for the Pro Bono Project,she is Suffolk’s own Pro Bono Attorneyof the Month for November 2010.

Ms. Burns' pro bono service toNassau/Suffolk Law Services (whichhouses both PBP and VLP) includes muchmore than the in-house hours of interview-ing prospective clients (mostly for matri-monial cases) and pursuing cases that canbe handled from her desk. Since June2010, when Law Services lost its fundingfor the Consumer Debt Project in Suffolk,she signed on to be Of Counsel to

Executive Director Jeffrey Siegel and hasbeen working on consumer debt cases,mostly from her home office, adding anestimated 160 hours of pro bono service.

Ms. Burns finds this additional assign-ment especially rewarding. “I enjoy usingmy litigation experience in a new area ofthe law and representing clients who oth-erwise would not have meaningful accessto our legal system,” she explained.

Ms. Burns’s service to the professionextends beyond her pro bono work. Hermemberships include the Suffolk CountyBar Association, the Nassau County BarAssociation, the New York State Bar

Association, and the New York State TrialLawyers Association. She is vice chair ofthe Nassau/Suffolk Law ServicesAdvisory Council and a member of its adhoc Strategic Planning Committee, whichis preparing a report to be submitted laterthis year. Along with these activities shedevotes many hours to the Senior LawyersSection of NYSBA and its Program andCLE Committee, which she has chairedfor the last two years; this entails planningthe Section’s fall meeting and its programfor NYSBA’ s annual meeting in January.

A 1969 graduate of Hunter College,Ms. Burns graduated from Fordham LawSchool in 1972 and received an LL.M.from New York University School ofLaw in 1975. After working briefly as astaff attorney at New York Life InsuranceCompany, she moved into private prac-tice in 1973. She retired from her firm,Burns, Russo, Tamigi & Reardon, LLP inDecember 2004.

Moving the family home fromManhasset to Rocky Point was easy. In thefirst few years of retirement the couple,who had had a summer place in RockyPoint for many years, planned and built ayear-round house there. By the time theymoved in over a year ago with Maggie,their now seven-year-old black Labradorretriever, they were completely at home.Their daughter Jennifer, who is a pedia-trician in Frederick, Maryland, and herhusband, Christopher Kosmaceski, chairof the Music Department at WalterJohnson High School in Bethesda, makefrequent trips to visit them in RockyPoint. This year the Burns andKosmaceski clans will be celebratingChristmas there.

Already familiar with Carole A.Burns’s excellent pro bono work from herservice in Nassau County, the Pro BonoProject warmly welcomed her change ofvenue. It is with great delight and respectthat the Project claims her as a Pro BonoAttorney of the Month in Suffolk County.

Pro Bono Attorney of the Month: Carole A. Burns

Taxation LawJames P. O’Connor, Chair

The meeting was held to discuss variouscurrent events/decisions in the tax area.Guest speakers Lawrence Lucarelli &Kenneth Laks, CPA's with Albrecht,Viggiano, Zureck & Co, PC, made a pre-sentation on the impact and timing of thechanges caused by The 2010 Health CareReform Act.

Members received valuable informationin a small group setting, and a give andtake ensured between an interested, expe-rienced membership and knowledgeable,experienced speakers.

Workers Compensation & SocialSecurity DisabilityJoanne Agruso and Sharmine Persaud, Co-Chairs

A discussion was held regarding the fre-quency of meetings and an agenda was set.There will be monthly meetings.

Topics for the next meeting will be new

Workers' Compensation guidelines. Somesuggestions were made. They include:CLE regarding Medicare Set-Asides. Theprogram will explain effects of Medicareset-asides in compensation claims as wellas potential liens in negligence actions;Mock trial - social security disability; CLEon motor vehicle accidents, highlightingKelly rights. This could be in conjunctionwith New Member, Sole Practice andNegligence Committees; discussion ofnew regulations promulgated by Workers'Compensation Board within the pastmonth.

Elder LawSteven A. Kassand Kim Smith, Co-Chairs

The committee's meeting was held fora review of the new Power of Attorneyform, effective September 12, 2010.There was a lively discussion of howpeople are handling the drafting, execu-tion and administration of the new Powerof Attorney form. For the balance of the

meeting, using a projector, we showedthe attendees: where the form can beobtained from the NYSBA website andBlumberg's Forms; integrating the sug-gested modifications from NYSBA, and;we solicited comments from attendees asto how they draft the form (stylistic,modifications). A number of attendeesshared their thoughts and drafting tech-niques. We asked attendees to share bye-mail actual modifications, and we willfollow-up to see if they will provide.

Education LawRobert Sapir, Chair

The status of School Law Conferencepreparations was reviewed. We identifiedspeakers for future meetings, selected aspeaker for Lunch and Learn for Januaryand discussed matters of common interest

The suggestions made are to try to get aspeaker from OCR, contact a speaker toaddress committee on e-discovery andhave Lunch and Learn on amendments to504.

COMMITTEE CORNERNews & Notes From SCBA Committees

Avoiding Judicial Liens in Chapter 13 Cases (Continued from page 13)


_________________By Dennis R. Chase

Are you ready for the best pizza you’veever eaten? Every restaurant these daysboasts of using only the finest, freshestingredients but how many of them actual-ly do? Would you drive all the way tolower Manhattan for really great pizza?After sampling Palà Pizza, you’ll behappy to answer each of these three ques-tions with a very enthusiastic YES! Evena cursory review of Palà‘s menu tells youthis isn’t your average neighborhoodpizza parlor. With menu choices to satis-fy either the carnivore or the vegan amongus (or anything in between for that mat-ter), Palà will leave no one wanting more.

But before getting to the pizza that is,well, to die for, prepare your pre-Palàpizza palate perfectly with somethingspecial; start your experience with thedivinely superb arancine, risotto ballsfilled with garden fresh spinach and moz-zarella cheese. Calling them rice ballswould not be doing this antipasti justice.While we’re on the subject, there are nomeatballs here, but polpette, served withincredibly thin slices of aged parmesancheese and a delectable red sauce. Fancyfancy mushrooms instead? Try the funghi

al tartufo, select Portobellomushroom layered with parme-san cheese and drizzled withtruffle oil. There are nine mag-nificent antipasti from which tochoose, but feel free share dish-es to save room for other equal-ly tasty treats from the menu.

Next stop - insalate. Beingquite partial to the one root veg-etable invoking the most pas-sion from fellow diners (either you lovebeets, or you hate them), try the rappa,roasted yellow beets, fresh ginger, redonions, mixed salad greens and pecorinocheese drizzled with extra virgin olive oiland balsamic vinegar. Late night dinerswould be wise to consider altering plansand dining early because this dish fre-quently sells out. Also quite refreshing isthe mela, arugula, apples and sweetpecorino cheese. If your appetite leansmore towards grilled vegetables, experi-ence the carciofi al parmigano, perfectlygrilled and extremely tender artichokes,ripe cherry tomatoes, and parmiganocheese. There are still four more selec-tions of insalate.

And then there’s pasta, with each dishalso available with your choice of organ-ic penne (made with rice, potato and soyflour), organic fusilli (made with brownrice flour), or organic spaghetti madewith corn and quince flour).Recommended is the bucatini all matri-ciana, bucatini (a thick spaghetti likepasta with a hole running through thecenter) with pancetta, pecorino romanocheese and spicy tomato sauce. There’sanother six pasta dishes to delight diners,

but where’s the phenomenal pizzawe’ve all heard so much about,already?

Palà makes each pizza to order,and don’t expect to see a tradi-tional round pie. The better termto describe this pizza is free-form. All the pizzas can beordered vegetarian, gluten free ordairy free. Palà takes the diners’dietarian concerns very seriously.

The crust on all their pizza is exactly whatyou would expect from the perfect pizza,thin, crispy, but with just the right amountof chewiness. Perhaps you’d like a sim-ple pizza . . . then recommended is thebufala cruda, buffalo mozzarella, cherrytomato sauce, and fresh basil leaves.There may be no taste more satisfyingthen the combination of really freshtomatoes and basil . . .yum. Care forsomething a little more interesting? Trythe funghi e saisiccia, field mushrooms,pork sausage, hot pepper, and mozzarella,a carnivore’s delight. Most, but not all ofPalà‘s pizza has mozzarella and yet stillmanage to be delightful, like the romana,sweet pecorino cheese, field mushrooms,tomato sauce, and fresh parsley or thearrabbiatta, adorned with fresh cherrytomatoes, hot pepper, and garlic. Thereare 14 specialty pizza choices in all andeach pizza is served fresh from the ovenon its own wooden peel.

There’s an entire vegan menu fromwhich we have not, as yet, sampled, butas mentioned previously, Palà takes veryseriously, your dietary concerns, boastingdedicated fryers and ovens and offeringnot only vegetarian and vegan fare, butgluten free and/or dairy free pizza, as

well. While the service is always refresh-ingly warm, friendly, and attentive, theonly drawback to the restaurant’s some-what cramped quarters is the single uni-sex restroom that invariably sports a linein front of the extremely tiny bar. Unlessyou manage to score one of the threestools at this miniscule bar, you can’t waitfor your table at the bar lest you be rundown by the always busy staff. Take thedrive to lower Manhattan (but avoid theWilliamsburg Bridge, unless of course,you enjoy mind numbing traffic delays)just for the pizza. Once you’ve triedPalà‘s there can be no other pizza in yourlife. Palà . . . a little slice of Rome inlower Manhattan.

Note: Dennis R. Chase is the currentSecond Vice President of the Suffolk CountyBar Association, a frequent contributor ofThe Suffolk Lawyer, and a partner with TheChase Sensale Law Group, L.L.P. Thefirm, with offices conveniently locatedthroughout the greater metropolitan areaand Long Island, concentrates their prac-tice in Workers= Compensation, SocialSecurity Disability, Short/Long TermDisability, Disability Pension Claims,Accidental Death and Dismemberment,Unemployment Insurance Benefits, andEmployer Services.

Palà Pizza is No Pizza ParlorMouthwatering pizza and so much more

RESTAURANT REVIEW

Dennis R. Chase

Palà Pizza

198 Allen Street

New York, NY 10012

212.614.7252

http://www.palapizza.com

Veteran’s Benefits Programs and Payments (Continued from page 11)

receive up to $1,949 per month.11

Additionally, a surviving spouse alonemay receive up to $1,057 per month.12

These amounts are generally adjustedevery year for inflation.13

There is no penalty for asset transfersand, as such, with proper planning, a vet-eran can become financially eligible forthe pension benefit. Nevertheless, whenengaging in planning for VA pension ben-efits, it is necessary to remain mindful ofthe potential Medicaid eligibility conse-quences of such planning. For example,assume a veteran transfers assets in theamount of $100,000 to a trust and $50,000outright to his children in order to reducehis assets to the $80,000 limit for Aid andAttendance benefit purposes. The veteranthen moves into an assisted living facility,the cost of which he is able to meet withthe help of the Aid and Attendance pro-gram. Two (2) years later, the veteran’shealth deteriorates and he requires care ina nursing home. The veteran will not beeligible for Medicaid benefits for approxi-mately 15 months after he enters the nurs-ing home based upon the $150,000 hetransferred 2 years ago. The veteran willhave to find a way to pay for his care inthe nursing home for the next 15 months.

Clearly, understanding VA benefits andhow they overlap with other government

benefits available to veterans is extremelyimportant in guiding clients towards theappropriate benefits programs.

Note: Melissa Negrin-Wiener, is a part-ner at Genser Dubow Genser & ConaLLP. She manages the GovernmentBenefits Department while concentratingher practice in the areas of Medicaid eli-gibility planning, asset protection plan-ning, disability matters, guardianshipsand estate planning. Melissa is also thechair of GDGC Charitable Events, a not-for-profit organization committed toenhancing the quality of life for the elder-ly, disabled and the underprivileged.

1 38 U.S.C. §11102 38 U.S.C. §15133 38 U.S.C. §15224 38 U.S.C. §1502(b)5 38 U.S.C. §1521(j)6 38 U.S.C. §11107 38 U.S.C. §11028 38 U.S.C. §1522 (a) states only that a veteran’s

pension shall be discontinued if the “corpus of theestate of the veteran [and the veteran’s souse, ifany] is such that under all circumstances…it isreasonable that some part of the corpus of suchestate be consumed for the veteran’s mainte-nance”.

9 38 C.F.R. §3.275(b)10 38 U.S.C. §1521(d)(1); 38 U.S.C. §531211 38 U.S.C. §1521(d)(2); 38 U.S.C. §531212 38 U.S.C. §1541; 38 U.S.C. §531213 38 U.S.C. §1521(a); 38 U.S.C. §5312

source.Since Famous Horse asserted that the

defendants used its V.I.M. mark in con-nection with the false representation that itwas a satisfied customer, the SecondCircuit reasoned that the complaint stateda Section 32 claim by alleging “a use thatis plainly likely to deceive and create con-fusion and mistake regarding the relation-ship between [the defendants’] goods andservices and Famous Horse.” FamousHorse Inc., 2010 WL 4117673*3.

Although the Second Circuit unani-mously vacated the Sections 32 and 43(a)false endorsement claims’ dismissal, thepanel split concerning the remaining claimthat the defendants’ sale of counterfeitRocawear jeans to Famous Horse’s com-petitors constituted Section 43(a) unfaircompetition. Circuit Judges Sack andLynch determined that the district court’sjudgment should be vacated, while CircuitJudge Livingston’s dissenting opinionurged that since Famous Horse did notown the Rocawear mark, it lacked stand-ing to maintain an action based on thatmark’s infringement.

In making its claim, Famous Horsealleged that the defendants’ misuse of theRocawear mark injured it in two ways. Itclaimed that it lost sales of genuineRocawear jeans when consumers, whobelieved that they were buying genuinegoods, bought lower-priced counterfeits

from the defendants or from competingretailers who had purchased the defen-dants’ counterfeits. Famous Horse addi-tionally urged that its reputation as a dis-count seller of genuine brand-name jeanswas being damaged because its competi-tors’ sales of lower-priced counterfeitswill likely cause its customers to believethat Famous Horse was selling Rocawearjeans at an inflated price. In this regard,Famous Horse further asserted that whenits customers learn that counterfeitRocawear jeans are generally available,they will likely believe that FamousHorse’s V.I.M. discount outlets are amongthe vendors of those counterfeit goods.

In determining that Famous Horse hadstanding, the majority held that the V.I.M.outlets’ lost sales to the defendants’ lower-priced counterfeit jeans demonstrated thatFamous Horse suffered a competitiveinjury for Section 43(a) standing purposes.The majority additionally determined thatFamous Horse’s claim – that the defen-dants’ false advertising (offering counter-feit jeans as genuine) caused a unique harmto its specific reputation as a discounter ofgenuine brand-name jeans – also sufficedto demonstrate standing to assert a LanhamAct Section 43(a) cause of action.

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

Famous Horse Standing(Continued from page 13)

Ph

oto

by B

arry

M. S

molo

witz


____________________

By Barry M. Smolowitz

The reviews are in, and the consensus ofthose who went on this year’s wine tastingevent has overwhelmingly said that thisyear’s trip was the“Best One Yet”

As we have for thepast several years, theSCBA had its annualwine tasting and eastend tours onNovember 13. If wecould have orderedthe weather, wewould not have doneany better! It was aperfect 65-degree sunny day. As in yearspast, we met at the SCBA where we allenjoyed a full continental breakfast.

We departed the SCBA via motor coach,and upon arriving at our first stop, wasgreeted by our host, Ms. Paula Geonie,who is a family member of the familyowned and operated, Baiting Hollow FarmVineyards (BHFV). This vineyard is themost westerly vineyard on the North Fork.It comprises a lovely vineyard and horsefarm. Without boring you about its history,BHFV is very involved in organic andsemi-organic farming as well as equine res-cue. It produces many different wines,including several in the Rosé family, aCheval Bleu desert wine, four whitesincluding Chardonnay, Riesling and vari-etals Angel and White Satin. Their redsconsist of Merlot, Cabernet Franc,Cabernet Sauvignon, and two blendedofferings, Red Velvet and Mirage. Ourguests were able to request a tasting of anywine produced. The wines were quitegood. I especially enjoyed the Merlot andthe Red Velvet. For those who crave sugar,the Cheval Bleu was the way to go.

In addition to enjoying the variouswines produced by BHFV, our group alsohad the opportunity to experience a privatetour of the horse farm, where we weregiven the history of how the familybecame involved in the equine rescueeffort. During the tour, our guests wereable to meet and pet the various horses thatreside at BHVF. I want to thank Paula andSteve for being such gracious hosts to theSCBA.

Our next stop was the RoanokeVineyards. Our host was the vineyard’sresident sommelier, Adam Ehmer. Ourgroup was treated to a private tasting, com-plete with bread and cheese platters. Eachguest had a choice of a red or white flight,or they could mix and match. Each flightconsisted of five tastings. The reds were allvery good, and, while I am not a big whitewine fan, the Wolffer Estate PerleChardonnay, which was poured as part ofthe white flight, was a clear favorite. Forthose of you wondering why a Wolffer

wine is being poured at Roanoke, theanswer is simple - Roanoke’s winemaker isRoman Roth. He is also the winemaker forWolffer Estate. Roanoke vineyard offerssome, but not all, of the Wolffer vintages.

Our next and last tasting of the trip thisyear was very special. This tasting was notat a vineyard. Rather, Geri Pravetz ofMartha Clara Vineyards provided a privatepouring at the home of Past PresidentJames and Nancy Winkler. Nancy and Jimwere so gracious to open their home, whichis situated on the waterfront of the LongIsland Sound, to over 45 of our members.

This tasting was the most unique andpleasurable sampling I had ever experi-enced. The setting was absolutely stun-ning. The group was given full access tothe Winkler’s home, deck and back yard.The deck is gigantic and sits approximate-ly 6 feet above ground level. This gave allon the deck a complete and unobstructedview of the calming Long Island Sound.The Winkler’s had their home beautifullydecorated for the autumn season, whichwas adorned with colorful mums and otherflowers. The deck, which runs the lengthof the house, was set with tables and chairsso all could enjoy the wines and the lunchthat were supplied by the Winkers. Eachend of the deck had its own appeal. On thewest end of the deck, Geri had set up anopen wine bar. Each of our guests couldpartake in as much of any of the manywines there. On the east end of the deck,my friend Jeffrey Greene supplied back-ground music on keyboard. To completethe ambiance, Mr. Greene was dressed in aformal black tuxedo. While I just did mybest to describe the scene, the truth was,you just had to be there. The visit to theWinklers culminated with deserts ofassorted cookies and pastries. Now Jimsaid he did not personally make the lunchor desert, but I am not so sure. It sure didtaste homemade, and rumor has it, Jim isquite the cook.

As we departed the Winklers, there islittle doubt that the neighbors were allwondering why there was a motor coachbringing in guests to a private home.Could it be an unannounced wedding per-haps???? Ha! Oh the curiosity!

The final stop, before our return trip, wasour traditional visit to Briermeir Farmswhere those who had not yet had enoughsweets, could load up on pies and cookies.Of course for the more health conscious,there were the seasonal fruits and veggies.

As always, the road trip home was a lotquieter than the morning trip out.

I would like to offer personal thanks toNancy & Jim Winkler, who certainly werethe hostess with the mostess. To them Isay, wow, what a day!! Also, a specialthank you to: my good friend Geri Pravetz,who donated her time to host the pouringand thank you to Jeffrey Greene. He trav-eled from western Suffolk, and also donat-ed a portion of his time. And finally, a veryspecial thanks you to my wife KimSmolowitz, and VIP Vacations, Inc. forsponsoring the event.

And so, to all our friends, guests andcolleagues - see you next year.

Best One Yet!!!

Barry M. Smolowitz

FREEZE FRAME

In Webster’s Dictionary, “perspective”is defined as “the ability to look through,see clearly.” For lawyers, I add to thisdefinition “the ability to recognize ourrelationship to the problem(s) before us.”I am a firm believer that as lawyers we areall relied upon by our clients to be prob-lem solvers, and being able to see our roleas such, while not becoming otherwiseinvolved in the issue, is essential to beingable to “see clearly” and doing our jobeffectively.

With that perspective, I implore you,particularly if you are feeling in over yourhead, to please do what you are reasonablyable to do to help yourself. This includes – Take care of yourself. Eat right, sleep,

fit in some type of exercise.– Respect your limits. None of us can be

everything to everybody.– Keep in touch with other lawyers.

Isolation, though often our defaultmode, fixes nothing.

– Ask for help – from your family andfriends, from your partners and col-leagues, from other professionals.Sometimes, just one call to the SuffolkCounty Lawyers’ Assistance

Foundation ((631) 697-2499) or theSCBA’s Lawyers Helping LawyersCommittee can get us back on track.(All calls are confidential, and col-leagues who want to help you arealways available.)

– Forgive yourself. We are all human andnone of us are perfect.

– Don’t forget to laugh a little. Somethings are just funny, and if you can’tfigure out which things they are, take ina comedy.In wishing you and those you care about

a wonderful holiday season, I’d like toclose with some words from Ralph WaldoEmerson, a special little gift for each of usto help keep perspective and encourageself-forgiveness – “Finish each day andbe done with it. You have done what youcould. Some blunders and absurdities nodoubt crept in; forget them as soon as youcan. Tomorrow is a new day; begin it welland serenely and with too high a spirit tobe encumbered with your old nonsense.”

Happy Hanukah, Merry Christmas,Happy Kwanza, and, for all you Seinfeldfans, Festivus for the Rest of Us!

Sincerely, Sheryl L. Randazzo

Remain Healthy and Stress-freeDuring the Holidays (Continued from page 1)

Congratulations to Harvey B.

Besunder on the birth of his

newest granddaughter, Avery

Sloane Arden who was born on

November 15. She was 7 lbs. 6 oz.

Everyone enjoyed their visit to the Winkler’s home where they were treated to a private pouring from Martha Clara Vineyards.


and Part II, I guess someone figured that itwould be easier to just call it Part III andnot have to designate the existing Partswith names other than those that lawyershad gotten used to.

With the construction of yet another“new” building to house the County Court,“across the river” (as in the Peconic Riverwhich separates the Riverhead Townshippart of Riverhead hamlet with theSouthampton Town side) in the RiverheadCounty Center that opened in 1975, theCounty Court Parts relocated to their newhome. This new home would no longer becalled the County Court Building butrather the Criminal Courts Building. Bythis time the County Court Bench hadexpanded to approximately 10 judges andits former home on Griffing Avenuewould house civil terms of the SupremeCourt. At the same time that the CountyCourt moved to the County Center loca-tion, the District Attorney’s Office alsomoved to new space from its GriffingAvenue location to be replaced there bythe Supreme Court Clerk’s Office. If mymemory serves me correctly, the engravedwords “Supreme Court” now appearinghigh above the entrance to what was oncethe District Attorney’s Office replaced the

words “District Attorney.”In the years ensuing after 1975, the now

“old” County Courthouse on GriffingAvenue, which no longer housed theCounty Court, (Are you still with me?),was really showing its age. Crumblingconcrete, cracked plaster walls and waterdamage, to name a few problems wit-nessed by this writer, began to worsen.Some repairs and maintenance were donefor a while which included refurbishingand restoring the building’s classic andstately courtrooms. It was not untilOctober of 2004 that ground was brokenfor a new courthouse annex on CourtStreet which was around the corner fromthe entrance to the original building. Theconstruction of the new annex was accom-panied by extensive renovations to the oldbuilding which included connecting theold building with the new annex. The newannex which opened in 2005 has nineSupreme Court courtrooms, empanellingrooms, additional office space and state ofthe art technology.

Meanwhile, back on the other side of “theRiver,” not too long after 1975, the CountyCourt and the D.A.’s Office had outgrowntheir space. The “new” County Court build-ing (you know, the one in the County

Center, which would now be known as theCriminal Courts Building) had only sixcourtrooms with two Grand Jury rooms andoffices for Court and District Attorney per-sonnel. Approximat-ely 15 years after theconstruction of the “new” Criminal CourtsBuilding construction began for a newerexpanded courthouse. The “new-er” court-house would be physically connected withthe 1975 building. This ‘new-er” expandedcourthouse would open in 1990. In 1995 theSuffolk County Legislature passedResolution 1880-95 naming the newexpanded courthouse after Justice ArthurM. Cromarty. Now the “new” CriminalCourts Building would become the “old”Criminal Courts Building and the “new-er”expanded Criminal Courts Building knownas the Arthur M. Cromarty Criminal Courts

Building. Actually, as noted, they are oneexpanded building. (I hope that you’re stillwith me). In addition to County Court crim-inal parts and courtrooms with SupremeCourt Justices sitting in criminal terms theCromarty Building is also home to severalSupreme Court Justices sitting in civilterms.

So there you have it; a trip from SuffolkCounty’s founding in1768 to its first cour-thouse in 1768 to today. We’ve come along way, baby!

Note: John L. Buonora recently retiredas the Chief Assistant District Attorney forSuffolk County, is a former president of theSCBA, the past president director of theSCBA and an adjunct professor at TouroLaw School.

The Suffolk County Courthouse Through The Centuries (Continued from page 3)

the presumption that caregiver serviceswere provided out of “love and affection.”However, in Matter of Barbato v. New YorkState Department of Health,4 the fourthdepartment appellate division reviewed andmodified five such fair hearing decisions ina manner consistent with GIS 07 MA/019,remanding the cases back to DSS to takeinto account the fair market value of ser-vices rendered between the date on whicheach PSC was executed and the date of theMedicaid eligibility determination. TheBarbato court ordered that caregiver logsbe used to identify which services were notduplicative of those provided (or to be pro-vided) by the nursing homes under NewYork regulatory operating standards.5 Italso held that transfers of assets for servicesto be rendered from the date of theMedicaid eligibility determination, throughthe remainder of the lifetime of theMedicaid A/R, should be valued at lessthan fair market rates because the PSCscontained language inconsistent with theguidance set forth in GIS 07 MA/019.6

Accordingly, New York case law pro-vides firm support for the general proposi-tion that PSCs are valid for Medicaid pur-poses. Even in cases when PSCs were exe-cuted in nursing homes and shortly prior toMedicaid applications, and thereforedeemed to be more suspect on fair hearing,the Barbato court directed the local DSS torecognize, up to the time of the Medicaideligibility determination, the fair marketvalue of services provided under the PSCsas compensated transfers.

The key issue for a Medicaid A/R thatenters a nursing home (whether before orafter executing the PSC) is whether the ser-vices provided are non-duplicative of thoseprovided by the nursing home. In advocat-ing a client’s position, it is important toreview New York regulatory operatingstandards for nursing homes and theMedicaid A/R’s comprehensive care planwith the nursing home to understand howservices provided by caregiver children canfill the gap. To date, there is no clear judi-cial guidance on whether financial servicesor one-on-one companionship is consid-ered to be non-duplicative. However, it isclear from fair hearing decisions that it isnot compelling to argue that caregiver chil-dren have provided services that nursinghomes should be providing in accordancewith operating standards, but in fact are notproviding.7

The validity of transfers of assets underPSCs for fair value after the date of the

Medicaid eligibility determination also isopen to question after the Barbato courtdecision. In our opinion, a properly draftedPSC should not include language consid-ered to be subjective for purposes of deter-mining fair value. That is, if the PSC spec-ifies the hours of care to be provided, con-tains a provision rebating excess funds tothe estate should the Medicaid A/R diebefore the stated life expectancy, and other-wise is consistent with the standards set outin GIS 07 MA/019, a court is more likely touphold the validity of the PSC for servicesrendered after the date of the Medicaid eli-gibility determination than if subjectivelanguage is used. Again, if the MedicaidA/R enters the nursing home, it is essentialthat the attorney drafting the PSC surmountthe hurdle of establishing that the servicesare not duplicative of those provided by thenursing home, if the PSC is going to with-stand DSS scrutiny.

Note: Vincent W. Ansanelli is the manag-ing partner of Ansanelli, Kugler &Svendsen, LLP, located in South Amityville.His primary area of expertise is in the fieldof Elder Law and Estate Planning, havingmore than 20 years of experience in thisfield. Diane L. Virzera is an associate atAnsanelli, Kugler & Svendsen, LLP and spe-cializes in Elder Law and Estate Planning.

1 See New York State Office of Children and FamilyServices, Division of Health and Long Term Care,“OBRA ’93 Provisions on Transfers and Trusts,”96 ADM-8, at p. 12 (March 29, 1996); Health CareFinancing Administration State Medicaid Manual3257-3259, Transmittal 64, Section 3258.1(A).

2 New York Department of Health, Office of HealthInsurance Programs, “Evaluating Personal ContractServices for Medicaid Eligibility,” GeneralInformation System (GIS) 07 MA/019 (Sept. 24,2007) (“GIS 07/MA 019”).

3 Id. at 2.4 65 A.D. 3rd 821, 884 N.Y.S.2d 525 (4th Dept. 2009)

(“Barbato”).5 See 10 N.Y.C.R.R. §§ 415.1-415.27.6 Specifically, the PSCs stated that services would be

provided “as needed” and also lacked provisionsrebating excess funds for services not rendered dueto premature death of the Medicaid A/R’s prior totheir stated life expectancies, which left open thepossibility that caregivers “would receive a wind-fall.” 65 A.D.3rd at 823. See also Stern v. Daines,2009 N.Y. Slip Opin. 32836(U) (Queens Co. 2009)(holding that such language does not render entirePSC invalid); In re Gitter v. State of New York,2009 N.Y. Slip. Opin. 33238(U) (New York Co.2009) (holding that DSS had authority to rely onGIS 07 MA/019 in assessing transfer penalty).

7 In one fair hearing, this even extended to an emer-gency situation when the caregiver alerted the nurs-ing home that her mother’s oxygen tank had beendepleted. See In the Matter of the Appeal of M.G.,Fair Hearing No. 473952M (March 2, 2007).

Personal Service Contracts After Barbato (Continued from page 9)

Motion to vacate Note of Issue denied;plaintiff had complies with the demandthere was no basis to vacate the timelynote of issue

In Margaret Okerblom v. Macy’s East,Inc., Macy’s East An IncorporatedDivision of Macy’s Retail Holdings, Inc.,and Macy’s Retail Holdings, Inc., Macy’sEast An Incorporated Division of Macy’sRetail Holdings, Inc., and Macy’s RetailHoldings, Inc. v. North American BuildingServices d/b/a Lashellda MaintenanceCorporation, Inc., and Eastco, Index No.17181/06, decided on September 16,2010, the court denied defendants’motions to vacate the Note of Issue forlack of a response to their demand forDiscovery and Inspection and a Bill ofParticulars from the third party defendantand for failure to provide the transcripts ofdepositions of plaintiff’s daughter anddefendants’ employee who witnessed theincident. plaintiffs’ contended that theyhad complied with all discovery demands.In denying the motion, the court noted thatthough the transcripts of the witnesseswere not confirmed or submitted, bothwitnesses were disclosed and known to thedefendants. Since the record reflected thatplaintiff had complied with the demandsthere was no basis to vacate the timelynote of issue or to extend the time inwhich to file for summary judgment.

Honorable Thomas F. WhelanLeave to serve an amended complaint to

the extent provided within the decisiongranted; party opposing the motion toamend must overcome a heavy presump-tion of validity in favor of the movant anddemonstrate that the facts alleges andrelied upon in the moving papers are obvi-ously not reliable or are insufficient

In Lenny Gullo, Maria S. Gullo andCatherine Gullo v. Bellhaven Center forGeriatric and Rehabilitation Care, Inc.,a/k/a Bellhaven Nursing Center, “ABC”Corporation a/k/a Bellhaven NursingCenter, Apex Laboratory, Inc., and Mark

Shapiro, M.D., Index No. 25986/09, decid-ed on April 15, 2010, the court grantedplaintiffs’ cross-motion for leave to servean amended complaint to the extent provid-ed within the decision and otherwise deniedsame. The cross-motion sought to assertseparate causes of action for negligentinfliction of emotional distress, construc-tive fraud and “violation of statute” onbehalf of the three named plaintiffs. Ingranting the cross-motion, the court notedthat leave to serve an amended pleadingshould be freely given upon such terms asare just. Leave to amend will generally begranted provided the opponent is not sur-prised or prejudiced by the proposedamendment and the proposed amendmentappears to be meritorious. The court notedthat there is an established rule that thelegal sufficiency or merits of a proposedamendment of a pleasing will not be exam-ined on the motion to amended unless theinsufficiency or lack of merit is clear andfree from doubt. Thus, the party opposingthe motion to amend must overcome aheavy presumption of validity in favor ofthe movant and demonstrate that the factsalleges and relied upon in the movingpapers are obviously not reliable or areinsufficient.

Please send future decisions to appear in“Decisions of Interest” column to ElaineM. Colavito at [email protected] is no guarantee that decisionsreceived will be published. Submissionsare limited to decisions from SuffolkCounty trial courts. To be considered forinclusion in the January 2011 issue, sub-mission must be received on or beforeDecember 1, 2010. Submissions areaccepted on a continual basis.

Bio: Elaine Colavito is an Associate atHeidell Pittoni Murphy & Bach, LLP con-centrating in litigation defense. She grad-uated from Touro Law Center in 2007 inthe top 6% of her class. She can be con-tacted at (516) 408-1600.

Bench Briefs (Continued from page 5)


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

The Suffolk Academy of Law, the educational arm of the Suffolk CountyBar Association, provides a comprehensive curriculum of continuing legaleducation courses. December courses are listed here, plus winter updates.Watch for additional program details or announcements.

REAL TIME WEBCASTS: Many programs are available as both in-per-son seminars and as real-time webcasts. To determine if a programwill be webcast, see the listings in this publication or check theSCBA website (www.scba.org – Internet CLE).

ACCREDITATION FOR MCLE:The Suffolk Academy of Law has been certified by the New York StateContinuing Legal Education Board as an accredited provider of continuinglegal education in the State of New York. Thus, Academy courses are pre-sumptively approved as meeting the OCA's MCLE requirements.

NOTES:Program Locations: Most, but not all, programs are held at the SCBA

Center; be sure to check listings for locations and times.

Tuition & Registration: Tuition prices listed in the registration form are fordiscounted pre-registration. At-door registrations entail higher fees.You may pre-register for classes by returning the registration coupon withyour payment.

Refunds: Refund requests must be received 48 hours in advance.

Non SCBA Member Attorneys: Tuition prices are discounted for SCBAmembers. If you attend a course at non-member rates and join the SuffolkCounty Bar Association within 30 days, you may apply the tuition differen-tial you paid to your SCBA membership dues.

Americans with Disabilities Act: If you plan to attend a program andneed assistance related to a disability provided for under the ADA,, pleaselet us know.

Disclaimer: Speakers and topics are subject to change without notice.The Suffolk Academy of Law is not liable for errors or omissions in this pub-licity information.

Tax-Deductible Support for CLE: Tuition does not fully support theAcademy's educational program. As a 501©)(3) organization, theAcademy can accept your tax deductible donation. Please take a moment,when registering, to add a contribution to your tuition payment.

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

INQUIRIES: 631-234-5588

LATE FALL CLE

WINTER UPDATESELDER LAW UPDATEMonday, February 14, 2011 (Live & Webcast)Presenter: George L. Roach, Esq. (Grabie & Grabie)Time: 2:00 – 5:00 p.m. (Sign-in from 1:30 p.m.)Location: SCBA Center Refreshments: Valentine snacksMCLE: 3 Hours (2 ½ professional practice; ½ ethics)[Non-Transitional and Transitional]

MATRIMONIAL LAW UPDATEMonday, March 7, 2011 (Live & Webcast)Presenter: Stephen Gassman, Esq. (Gassman, Baiamonte,Betts & Tannenbaum, P.C.--Garden City)Time: 6:00 – 9:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

ANNUAL CRIMINAL LAW UPDATEVideo ReplayJanuary Date TBAPresenters: Hon. Mark Cohen (NYS Court of Claims; ActingJustice, NYS Supreme Court) and Kent Mostin (AppealsBureau, Nassau Legal Aid)Time: 4:00–7:00 p.m. (Sign-in from 5:30 p.m.)Location: SCBA CenterMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]

SERIESTRUSTS A TO ZOne lunchtime program each month through May (Live &Webcast)Past sessions are available as on-line video replays and mayalso be purchased as DVDs or audio CDs.

Each Program:Time: 12:30–2:15 p.m. (Sign-in from noon.)Location: SCBA Center Refreshments: LunchMCLE: 2 Hours (professional practice)[Non-Transitional and Transitional]

Series Coordinator: Ralph Randazzo (Randazzo & Randazzo,LLP – Huntington)

SUPPLEMENTAL / SPECIAL NEEDS TRUSTSTuesday, December 7, 2010Presenter: Beth Polner Abrahams (Garden City)

LIFETIME TRUSTS FOR MINORSTuesday, January 11, 2011Presenter: TBA

IRREVOCABLE LIFE INSURANCETRUSTSWednesday, February 2, 2011Presenter: Richard A. Weinblatt (Haley Weinblatt & Calcagni,

LLP – Islandia)

GRANTOR RETAINED ANNUITYTRUSTS (GRATS)Tuesday, March 1, 2011Presenter: Paul E. Dorr, Jr. (Bernstein Global WealthManagement)

DYNASTY TRUSTSTuesday, April 5, 2011Presenter: Paul McGloin (Deutsche Bank Private WealthManagement)

CHARITABLE TRUSTSWednesday, May 4, 2011Presenter: Paul E. Dorr, Jr. (Bernstein Global WealthManagement)

SEMINARS & CONFERENCES

IS YOUR WEBSITE WORKING FOR YOU?A Free Seminar from Lexis-NexisWednesday, December 1, 2010This guest seminar from Lexis Nexis will address best practicesin internet marketing and optimizing marketing dollars. You willlearn, among other things, how to use the internet to increaseclient traffic, how consumers are looking for attorneys, and howto control advertising costs. The program is FREE and includescomplimentary lunch. Pre-registration is requested.Faculty: Certified SEMPO Institute ConsultantTime: 12:30–1:30 p.m. (Sign-in from 12:15 p.m.)Location: SCBA Center Refreshments: LunchMCLE:1 Hour (skills) [Non-Transitional and Transitional]

ANNUAL SCHOOL LAW CONFERENCEPresented by the Education LawCommittees of the Suffolk and NassauCounty Bar AssociationsMonday, December 6, 2010The theme of this year’s conference is “Navigating TroubledWaters,” and presentations clearly reflect that perspective. Theconference comprises two plenary sessions and two breakoutsessions (with three topic choices each). Lawyers, educators,and others with an interest in education law will find much ofvalue in this program.

AgendaMorning General Session: “So YouWant to Save $1,000,000?”Faculty: Robert Sapir, Esq., Eugene Barnosky, Esq., FlorenceFrazer, Esq., Richard Guercio, Esq., Carrie Ann Tondo, Esq.Afternoon General Session: The Internet–Friend or Foe?Faculty: Randy Glasser, Esq, John Dockswell (Nassau CountyPolice), Joseph Lilly, Esq., Christopher Powers, Esq., JohnSheahan, Esq., Thomas Volz, Esq.Morning Breakouts:1. What’s Public & What’s Private? – Carol Hoffman, Esq.,

Howard Miller, Esq., Rita Sheena, Esq.2. The New APPRs for Teacher & Principal Evaluations –John Gross, Esq., Gregory Guercio, Esq., Gerard McCreight,Esq.3. Special Education Update – Debora Berger, Esq., JacobFeldman, Esq., Brad Rosken, Esq.Afternoon Breakouts:1. Student Residency – Gary Steffanetta, Esq., Mara Harvey,Esq., Christie Medina, Esq.2. Instructional Services & Independent Contractors –Douglas Libby, Esq., Robert Cohen, Esq., LawrenceTenenbaum, Esq.3. Unfunded Mandates – Laura Ferrugiari, Esq., Alan Adcock(Massapequa UFSD), Antonia Hamlin, Esq.Conference Chairs: Robert Sapir and Randy GlasserTime: 9:00 a.m. – 3:30 p.m. (Sign-in from 8:30 a.m.)Location: Sheraton Long Island HotelRefreshments: Continental Breakfast and Luncheon BuffetMCLE: 5 ½ Hours (professional practice) [Non-Transitionaland Transitional]

THE BASIC FUNDAMENTALS & PUR-POSE OF MEDICARE SET ASIDEPresented by the SCBA Workers’Compensation & Social SecurityDisability CommitteeTuesday, December 7, 2010 The impact of Medicare on Workers’ Compensation and person-al injury settlements can be complicated business. Key ques-tions must be addressed or the claimant may be denied futureMedicare payments and the employer and insurance carriermay be faced with penalties and held liable. This succinct semi-nar will address the major issues. Note that this program will notbe webcast or recorded.Faculty:Joanne Agruso, Esq. (Dell, Little, Trovato & Vecere,LLP–Ronkonkoma)Rachel Nelsen, Esq.Coordinator: Sharmine Persaud, Esq. (Co-Chair–SCBAWorkers’ Compensation Law Committee)Time: 6:00–8:00 p.m. (Sign-in from 5:30)Location: SCBA Center Refreshments: Light supperMCLE: 2 Hours (professional practice)[Non-Transitional and Transitional]

COPYRIGHT, TRADEMARKS & PATENTS: What GeneralPractitioners Need to KnowWednesday, December 8, 2010 f (Live & Webcast)Will you know what to do when that budding author or inventorappears on your law firm doorstep...or when your businessclient wants to protect its trademark...or when someone yourepresent “borrows” text or images from the internet? The lawsand conflicts involving intellectual property are complex andchallenging – especially in the new world of the internet andsocial media. This program will cover the basics and show youhow to protect clients’ rights or help them to avoid needlesslegal trouble. Faculty: Thomas A. O’Rourke, Esq. (Bodner & O’Rourke)Coordinator: John R. Calcagni (Academy Advisory Committee)Time: 6:00–9:00 p.m. (Sign-in from 5:30)Location: SCBA Center Refreshments: Light supperMCLE:3 Hours (professional practice)[Non-Transitional and Transitional]

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

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

and George Tilschner. Between the tax intricacies of a Sy

Goldberg program and the nuts and boltsconcepts of a primer lies an array of twoand three credit offerings. Some deal withbroad issues, some with specific matters,and some with topics that are ancillary toelder law and estate practice. All areavailable as DVDs or CDs and as on-linevideo replays or MP3 recordings.

Broad instructional programs include“Estate Practice 101,” a six credit(including one in ethics) treatment ofeverything from wills and trusts for a vari-ety of situations through what to do aftersomeone dies (including probate andadministration when there is no will);“Estate Tax: The Latest on the Repealand What to Do in the Meantime,” atwo-credit exploration of effects onexecutors, capital gains issues for inheri-tors, and similar issues; and“Miscellaneous Proceedings inSurrogate’s Court,” a three-credit dis-cussion by Surrogate’s Court law depart-ment attorney Scott McBride on wrongfuldeath compromise, special needs trusts,and other less frequent proceedings.

Programs focusing on specific issues –all supplying two MCLE credits – include“Frequently Asked Questions onProbate,” providing detailed guidance byKurt Widmaier on avoiding common andnot-so-common pitfalls; “FrequentlyAsked Questions About MedicaidApplications,” in which RichardWeinblatt and his firm’s Medicaid admin-istrator, Susan Cozzolino, dissect the newform and how it is to be completed;“Planning Opportunities withPromissory Notes & Annuities,” featur-ing valuable instruction by RichardWeinblatt on how to help a family retainassets when immediate nursing homeplacement becomes necessary (now thatthe “rule of halves” is no longer anoption); and “Five Kinds of Annuities,”a discussion by Vincent Russo and HenryMontag on how to help clients assess andinvest “four kinds” of money (neededimmediately, needed soon, needed even-tually, and “never” needed).

Marital issues in the context of elderlaw and estate planning are the focus oftwo recent CLE’s now available on-line oras recordings: The first, aptly entitled“Elder Law & Estates Issues inMatrimonial Matters,” features attor-neys from both disciplines: elder lawlawyers Sheryl Randazzo and RonaldLanza and matrimonial lawyers LynnPoster-Zimmerman and Diane Carroll.The syllabus for this three-credit seminarcovers pre-nups, estate strategies, spousalrights, Medicaid and other issues in plan-ning for marriage, planning during mar-riage, planning during the dissolution of amarriage, and in divorcing an incapacitat-ed person. The second program,“Protecting Assets Without a Pre-Nup”(two credits), looks generally at asset-pro-tection measures and specifically at

“Delaware Trusts,” i.e., spendthrift pro-tections extended to a settlor-beneficiaryof a discretionary trust. The faculty forthis program comprised guest lecturersfrom BNYMellon Wealth Managementand the New York City law firm Moses &Singer, LLP.

The Academy also has recordings ofprograms that, while not covering elderlaw or estate planning specifically, maybe of interest to attorneys in these fields.“Nursing Home Litigation” (three cred-its), featuring Michael Glass and othersknown for their work in the field, coversOBRA & PHL statutes, case intake andinvestigation, and trial considerations.

“The Family Health Care DecisionsAct” (two credits) features JamesFouassier and Dr. Lynn Hallarman in areview of the new law and how it modifiesexisting laws.

Finally, the Academy has a new record-ing, “Article 81 Guardianship Trainingfor Laypeople,” that elder law attorneysmay wish to supply to their clients whohave been appointed guardians. Instruction– by Hon. H. Patrick Leis, Bronwyn Black,Richard Weinblatt, Jeffrey Grabowski,and Carolyn Lindenbaum – covers bothpersonal needs and property managementresponsibilities. Additionally, olderrecordings intended for lawyers who have

been appointed court evaluators and sup-plemental needs trustees are available onrequest.

Those seeking more information onestates and elder law CLE in any format –live seminars, real-time webcasts, on-linevideo replays and MP3 recordings, orDVD and audio CD recordings – are invit-ed to call the Academy at 631-234-5588.

Note: The writer is the executive direc-tor of the Suffolk Academy of Law

New York Times, November 10, 2010,“Pledge to Give Away Fortunes StirsDebate.”


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

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

Information & Insights for Attorneys Who Handle Estate & Elder Law Matters (Continued from page 25)

attorney should be present. Home carehours are based upon how long DSSbelieves it will take the home care aide toaccomplish specific tasks. DSS will notallot time to provide companionship. Tobe eligible, the client must need assistancewith at least two activities of daily living:feeding, toileting, grooming, bathing,ambulating, and transferring. If the clientneeds an extended period of monitoring,an adult day care program may be benefi-cial.

Medical Model Adult Day Care An applicant who qualifies for home

care is likely to qualify for medical modeladult day care. After receiving a doctor’sdiagnosis, the day care facility itself willconduct the intake assessment. These pro-grams, often located in a nursing home,usually provide door-to-door transporta-tion, a cooked meal, socialization, trainedsupervision, and assistance with bathing.They also provide a much higher level ofskilled care than most home attendants canprovide, such as medication management,physical therapy, diabetes management,wound care, lab work, x-rays, social ser-vices and access to ancillary services suchas a dentist, psychiatrist, podiatrist,optometrist, and/or audiologist. Adult dayprograms can be combined with tradition-al home care services to extend the numberof hours a senior is supervised.

Social Model Day Care This type of program may be an excel-

lent alternative for a patient who is isolat-

ed, blind or is memory impaired, but whohas no skilled medical needs. It can be par-ticularly useful for the client who needsconstant supervision, socialization andmeaningful recreation. Medicaid paymentfor social model day care can only beaccessed through waivered programs suchas GuildNet, Nursing Home Transitionand Diversion Waiver and LombardiProgram. Day Haven, in Port Jeffersonand Ronkonkoma, provides Social ModelDay Care programs.

Consumer Directed PersonalAssistance Program – (CDPAP)

CDPAP allows the client or the client’sfamily to take responsibility for locating,hiring, training, supervising, and firing thecare giver paid by Medicaid. Since theCDPAP aide is trained and supervised bythe family, he or she can perform tasks thatan agency personal care aide is not autho-rized to perform, and can be a good choicefor clients with complex medical problemsor who need direct assistance with medica-tions. The client and/or his/her family areresponsible for training or arranging forthe training of the aide. The aide must reg-ister and report his/her hours to theCDPAP program which handles all pay-checks. CDPAP agencies in SuffolkCounty are: Recco Home Care Services, inSmithtown, and South Shore Home HealthServices, in Oakdale.

Managed Care Programs GuildNet, run by The Jewish Guild for

the Blind, is a managed long-term careplan established to coordinate services foradults wishing to remain in their homes aslong as possible. It provides a wide arrayof services, and it is especially useful forthe client who can benefit from socialmodel day care. Although it is a managedcare program GuildNet allows the client tocontinue to use his or her current physi-cian. A complete list of the available ser-vices can be found at http://www.jgb.org/programs_guildnet.asp. GuildNet isaccessed after the client has been approvedfor Medicaid by calling (917) 386-9319.GuildNet conducts its own assessment ofthe client for services.

Nursing Home Transition andDiversion program – (NHTD)

NHTD is a waivered program designedto help bring seniors out of nursing homesand back into the community or to keepthem safely in their homes even thoughthey would medically qualify for nursinghome services. The Medicaid recipient isbudgeted as Community Medicaid. In addi-tion to traditional home attendants andmedical model day care, applicants canreceive the services of a care manager,assistive technology, counseling, movingassistance, home modifications, meals andrental subsidy. After financial eligibility isdetermined, the NHTD program will evalu-ate the client and provide a plan of care. Formore information, call the L. I. RegionalResource Development Center at theSuffolk Independent Living Organizationor access the Department of Health website:http://www.dhcr.state.ny .us/Programs/NHTD/

Private Duty NursingThis program provides RN and LPN

level services on a long term basis toMedicaid recipients who need it. The pro-gram is administered through Albany afterthe senior’s county approves financial eli-

gibility. Physician’s orders plus an assess-ment by a certified home health agency arenecessary. Information is available athttp://www.emedny.org/ProviderManuals/NursingServices/PDFS/Private_Duty_Nursing. One of the flaws in the program isthat the hourly pay that Medicaid providesis so low that it can be difficult to find nurs-es willing to work at that rate. The nursesmust be privately contracted to acceptMedicaid payment or work for an agencythat contracts with Medicaid. Enhancedpay may be available if a high level of skillneeded. In some instances, it may be moreadvantageous to hire and train someonethrough the CDPAP program.

Lombardi Program This program, also known as the Long-

Term Home Health Care program, pro-vides for nursing home level of services inthe home setting. It provides coordinatedhome care that includes skilled nursing,rehabilitation therapy, medical socialwork, nutrition counseling, and homehealth aide services. Other servicesinclude recreational therapy, social daycare, transportation, moving assistanceand home repairs. The estimated cost ofcare cannot exceed 75 percent ofMedicaid’s cost to care for that recipient ata skilled nursing facility. The Lombardiprogram is budgeted like chronic careMedicaid, and there is no look-back periodfor asset transfers. If there is a healthyspouse, he/she is entitled to spousalimpoverishment protection. Information isavailable at: http://www.health.ny.gov/health_care/medicaid/reference/lthhcp/lth-hcpmanual.pdf.

Note: Janna P. Visconti is an attorneywith Grabie & Grabie, LLP, concentratingher practice in Elder Law, Medicaid, andEstate Planning. She can be reached at (631)360-5600 or [email protected].


Medicaid Home Care for Suffolk County Seniors (Continued from page 6)

Using a QPRT to Minimize Estate Taxes (Continued from page 9)

interest which is calculated by taking thepresent fair market value of the propertyand reducing it by the value of thegrantor’s retained interest as determinedby the IRS’s actuarial tables. This resultsin the value of the gift being significantlyless then the value of the property.

For illustrative purposes, assume that a65 year old individual owns a home with acurrent fair market value of $1,000,000and he transfers this residence into a QPRTfor a term of 12 years. Based on the IRStables, the grantor would be treated as hav-ing made a gift to his beneficiaries valuedat only $549,000, effectively transferringan asset worth $1,000,000 to his beneficia-ries but only using $549,000 of his gift taxcredit. In the year following the creation ofthe QPRT, the grantor would be requiredto file a Federal Gift Tax Return to reportthe gift in the amount of $549,000.Assuming no prior gifts have been made,no gift tax would be due and, if he survivesthe term of the QPRT, the grantor wouldhave reduced his taxable estate by$549,000. With the possibility of the estatetax rate for 2011 reaching as high as 55percent, a plan like this could significantlyreduce the grantor’s estate tax liability.

Not only can a QPRT effectively reducethe size of the grantor’s estate but, addi-tional tax benefits result from creating aQPRT because all of the future apprecia-tion associated with the property will betransferred to the beneficiaries estate taxfree. The longer the QPRT term, thegreater the potential for the property toappreciate and the greater the grantor’spotential tax savings. Assuming thegrantor survives the term of his retainedinterest, the beneficiaries named in the

QPRT own the property. However, thegrantor can lease the property back fromthe beneficiaries at a fair market rentalvalue. This feature actually gives thegrantor the opportunity to transfer addi-tional assets (rent payments) to his benefi-ciaries free of estate taxes.

While a longer term provides greater taxsavings, there is a risk in choosing toolong a QPRT term because the grantormust outlive the term in order to realizethe tax benefits of the QPRT. There is nopenalty if the grantor dies before the termends but, the entire value of the propertywill be included in the grantor’s estate.When creating a QPRT, it is important toconsider the grantor’s life expectancybased on current actuarial and lifeexpectancy tables, the client’s risk toler-ance and other variables such as theclient’s health and family history.

Note: Kim M. Smith, is a partner at thelaw offices of Burner, Smith & Associates,L.L.P., with offices located in Setauketand Westhampton Beach, where she prac-tices in the areas of Elder Law, Trust &Estate Planning, Trust and EstateAdministration, Guardianship, Medicaidand Special needs planning. Prior to hercareer as an attorney, Ms. Smith workedin the health care profession for more thenfifteen years. She is the current Co-Chairof the Elder Law Committee of the SuffolkCounty Bar Association and the SuffolkCounty Women's Bar Association, whereshe also currently serves as the VicePresident of Programs. In addition to thenumerous committees Ms. Smith isinvolved in, she is also a frequent speakerat the Suffolk County Bar Association.

partner and a co-trustee of the credit shel-ter trust established under the will. Thegravamen of the petition was that therespondent, individually, as the sole share-holder of an agency he founded after thedecedent’s death, and as the 50% percentshareholder of the agency he founded withthe decedent, possessed money and prop-erty that properly belonged to the dece-dent’s estate.

Following service of the petition and theaccompanying Order to Attend, therespondent moved to dismiss on theground that the Surrogate’s Court lackedsubject matter jurisdiction over what hedescribed as a shareholder derivativeaction. However, the Surrogate’s Courtdenied the motion, noting that “[a]nyrecovery on behalf of the corporations[would] benefit the estate by increasingthe value of its shares and decreasing itsexposure to potential liability for corpo-rate indebtedness.” Additionally, “a saleof [the] decedent’s stock [would] make theproceeds available for distribution.”

What practitioners should take awayfrom this is that while the Surrogate’sCourt generally lacks jurisdiction over

shareholder derivative actions, there arelimited circumstances in which a surro-gate may exercise jurisdiction over such adispute. Those limited circumstancesarise when it is demonstrated that anyrecovery on behalf of the corporationwould benefit the estate or trust involvedin the proceeding.

Note: Robert Harper is an associate atFarrell Fritz, P.C., concentrating in trustsand estates litigation. He also serves asCo-Chair of the Suffolk County BarAssociation’s Membership Services andActivities Committee.

1 N.Y. Const. Art. VI.2 Matter of Piccione, 57 N.Y.2d 278 (1982). 3 Matter of Castaldo, N.Y.L.J., 2/6/1998, at 34, col.

2 (Sur. Ct., Westchester County). 4 Matter of Baum, 7 Misc.3d 1027(A) (Sur. Ct,

Nassau County 2005). 5 Matter of Posalski, 21 Misc.3d 1139(A) (Sur. Ct.,

Bronx County 2008); Matter of Lever, N.Y.L.J.,7/25/2003, at 22, col. 4 (Sur. Ct., Nassau County).

6 Lincoln First Bk., N.A. v. Sanford, 173 A.D.2d 65(4th Dept. 1991).

7 Matter of Denton, N.Y.L.J., 1/19/1995, at 32, col.4 (Sur. Ct., Westchester County); Matter ofVisconti, N.Y.L.J., 1/30/1995, at 29, col. 6 (Sur.Ct., Nassau County).

Surrogate’s Court JurisdictionOver Shareholder DerivativeSuits (Continued from page 17)

ty property when calculating whether theyqualify as accredited investors under theinvestment-owned standard.20

In addition, if, as expected, the SECadjusts for inflation the net worth andincome standards using 1982, the year inwhich such standards were adopted, as thebase year, individual investors would needan annual income of $500,000 (or jointincome of $700,000) or a net worth of atleast $2,200,000, not including the valueof their primary residence, to qualify asaccredited investors.

In this market where housing priceshave declined, the change in the accreditedinvestor standard could have helped ratherthan hindered an individual from qualify-ing where the debt on the property exceed-ed the value of the residence. In a movethat closes this loophole, the SECannounced on July 23, 2010, that an indi-vidual investor must include any indebted-ness in excess of the fair market value of

such person’s primary residence whendetermining net worth.21

The SEC has shown that it intends to beaggressive in its rulemaking under theDodd-Frank Act. Investors and companiesshould speak to their securities law coun-sel to determine where they stand in thewake of the recent change and where theycan expect to be in anticipation of furtherchanges the SEC is likely to adopt to theaccredited investor standard.

Note: Gisella Rivera, JD, CPA is anassociate in the corporate law practice atMeltzer, Lippe (Mineola). She has exten-sive experience advising U.S. and non-U.S. issuers, including sponsors andemerging managers, engaged in privateofferings of equity securities and acting ascounsel to, and negotiating terms of invest-ments for, highly sophisticated investorslooking to invest in private equity fundsand hedge funds.

1 Dodd-Frank Wall Street Reform and ConsumerProtection Act, Section 413(a) (July 21, 2010).

2 17 C.F.R. §230.501(a)(5).3 17 C.F.R. §230.501(a)(6).4 See “Implications of the Growth of Hedge Funds,

Staff Report to the United States Securities andExchange Commission,” September 2003, 81,available at http://www.sec.gov/spotlight/hedge-funds.htm.

5 17 C.F.R. §230.506. 6 The offering memorandum, when used, is provided

to all investors in view of the anti-fraud provisionsof the Securities Act. 17 C.F.R. §230.502(b)(1).

7 See e.g. SEC No-Action Letter, SouthwestBancorp, 1986 WL 66822, May 20, 1986, at *11;Goodman v. Epstein, 582 F2d 388, 414 (7th Cir.1978), cert. den. 440 U.S. (1979) (stating that“when an investment decision remained to bemade at the time of a call for a capital contributionby a Limited Partner, the contribution by eachLimited Partner in response to the call constituteda separate ‘purchase’ of a security”).

8 15 U.S.C.S. §77b(a)(15(ii). 9 CFTC Rule 4.13(a)(3). 10 See Dodd-Frank Act, supra note 1, at Section

413(b)(2). 11 Securities Act Release No. 8876 (December 27,

2006) 2006 WL 3814994, at *8. The SEC estimat-

ed that in 1982 when the accredited investor stan-dard was adopted, there were approximately1.87% of U.S. households that would have quali-fied. By 2003, the number of U.S. householdsqualifying as accredited investors had grown by350% to 8.47%.

12 Id.13 Id. at *9. The SEC believed that the additional

requirement will bring back the level of qualifyinghouseholds to 1.3%, a percentage that is below the1982 levels. See also Securities Act Release No.8828. (August 3, 2007) 2007 WL 2239110, at *4.

14 SEC Release No. 8876, supra note 11, at *12.15 SEC Release No. 8828, supra note 13, at *7. 16 The SEC received approximately 600 comments

on the December 2006 proposed rule, many ofwhich were unfavorable. Id., at *4.

17 See SEC Release No. 8876, supra note 11, at *13.18 See SEC Release No. 8876, supra note 11, at *13;

SEC Release No. 8828, supra note 13, at *14. 19 17 C.F.R. §270.2a51-1(b) (1997).20 See SEC Release No. 8876, supra note 11, at *14;

SEC Release No. 8828, supra note 13, at *17.21 Securities and Exchange Commission Compliance

and Interpretations under the Securities Rules179.01, July 23, 2010, available athttp://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm.


Accredited Investor Today not Tomorrow (Continued from page 12)

fits may be available at a younger age.When a divorced spouse files for benefitsbased upon the record of his/her formerspouse, requirements for eligibilityinclude, but are not limited to, the require-ment that the marriage lasted for at least10 years; the divorce became effective atleast two years before filing and the indi-vidual seeking benefits has not remarried.

It is noteworthy that the spouse/formerspouse of the SS non-contributor need notbe deceased for benefits to be available.Where the spouse is deceased, thewidow/widower can collect benefits basedupon the deceased spouse's record provid-ed he/she is at least 60 years old, or atleast 50 and disabled. In addition, it ispossible for a divorced widow/widower tocollect based upon a deceased formerspouse's record, but he/she must have

been married to the wage earner at least 10years immediately before the divorcebecame final, and there are limitations ifthe divorced widow/widower has remar-ried. In the case of a disabled widow/wid-ower or a disabled divorced widow/wid-ower, the onset of disability must haveoccurred within seven years of the wageearning spouse's/former spouse's death.

The benefits available to an individualwith an earnings record is not reduced if aspouse and/or an ex-spouse or two alsocollects benefits on that person’s earningsrecord. SSA will pay the highest monthlybenefit amount in situations where anindividual can qualify for more than onebenefit or for benefits under more thanone earnings record. Therefore, an indi-vidual with his/her own earnings recordmay qualify for a higher monthly benefit

under the earnings record of a spouse/for-mer spouse, and is not limited to receivingthe lower benefit under his/her own earn-ings record.

SS benefits are also available to indi-viduals that are disabled from working.There are two types of disability benefitsthrough SSA: Social Security Disability(SSDI) and Supplemental SecurityIncome (SSI). To qualify for SSDI bene-fits on a person’s own work record, inaddition to having to satisfy the stringentdefinition of “disabled” under the applica-ble statute and regulations, the workermust have worked and contributed intothe system out of his/her earnings longenough to be “insured” for SSDI purpos-es. After 24 months of SSDI benefits, therecipient of said benefits qualifies forMedicare coverage.

SSI is a need-based benefit program inwhich eligibility is based upon certain cri-teria relating to assets and income. Forthis reason, the receipt of an inheritance orother moneys by an individual mayadversely impact on that individual’s eli-gibility for ongoing SSI benefits. A spe-cial needs trust may be appropriate to pro-tect an individual’s eligibility for SSI ben-efits. Once an individual is approved forSSI benefits, he/she is also Medicaid eli-gible.

Note: Scott R. Tirrell is a partner withTurley, Redmond, Rosasco & Rosasco,LLP in Ronkonkoma, concentrating inSocial Security Disability, SSI, and LongTerm Disability benefits claims. He canbe reached at [email protected] or (631) 582-3700, ext. 142.

The Basics of Social Security Age and Disability Benefits (Continued from page 6)

Information & Insights for Attorneys Who Handle Estate & Elder Law Matters (Continued from page 28)

by non-marital children, DNA testing,power of attorney as related to Surrogate’sCourt, significant ethics issues, and keydecisions affecting legal fees, malpracticeclaims, and in terrorem clauses. The pro-gram, which provided 2 � credits includ-ing a half credit in ethics, is archived on-line and also is available for purchase as aDVD or audio CD.

Also just presented and now archivedwas a two-credit program on “LongTerm Care Planning & Annuities.”Featuring Vincent Russo, the co-authorof New York Elder Law and SpecialNeeds Practice (Thomson Reuters), andHenry Montag, a well known financialplanner, the seminar covered the new“linked annuity,” Medicaid treatment ofannuities, and an assortment of planningstrategies.

Power of Attorney issues, which remainan ongoing challenge for elder law andestate planning attorneys, were addressedin two recent presentations by the threelawyers who have been keeping col-leagues up to date on POA developmentssince the first changes went into effect inSeptember 2009, Eileen Coen Cacioppo,

George Roach, and George Tilschner. Thetrio’s newest presentations are“Frequently Asked Questions AboutPower of Attorney” (presented duringSummer 2010) and “The New TechnicalChanges in New York Power ofAttorney Law” (presented in September2010). The programs are available individ-ually on-line and as a set of DVDs or CDsthrough the Academy’s Recorded CLECatalog.

Most of the Academy’s recorded elderlaw and estate planning programs havevalue for both attorneys who are new tothe field and those who are quite experi-enced. Some presentations, however, maybe accurately characterized as one or theother: that is, somewhat advanced or pri-marily introductory.

Presentations by Seymour Goldberg,CPA, MBA, JD, most would agree, fallinto the “advanced” category. Mr.Goldberg addresses fine points of the lawand the sophisticated strategies attorneyswell versed in these points may use for thetax benefit of their clients. Three of hismore recent presentations include “IRATrusts & Retirement Trusts as

Beneficiary of Retirement Assets” (June2010); “Inherited IRAs: What thePractitioner Must Know” (June 2009);and “New York Trusts & Estates”(August 2009). All of the recordings areaccompanied by information-packed man-uals written by Mr. Goldberg.

On the opposite end of the spectrum,three recorded in-depth programs are high-ly recommended as primers or valuablerefreshers. “Elder Law Boot Camp”(April 2010) featured a faculty of skilledpractitioners (Marilyn Gormley, JeanetteGrabie, Ronald Lanza, George Roach, KimSmith, and George Tilschner) who coveredMedicaid, Article 17 and Article 81guardianships, advance directives, willsand trusts, and a variety of ethics issues.The program provides 5-1/2 hours ofMCLE credit, including 1/2 in ethics. Alsotreating Elder Law basics was a six creditprogram (five general, 1 ethics) entitled“Introduction to Elder Law” (April2009). Once again featuring an outstandingfaculty (Sheryl Randazzo, RalphRandazzo, George Tilschner, RonaldLanza, Jeanette Grabie, Kim Smith,Richard Weinblatt, and Robert Howard),

this primer addressed the elder law consul-tation, capacity, guardianships, Medicaidplanning, home care services, nursinghome placement, and implementation ofthe elder law plan. Finally, the third pro-gram recommended for its comprehensivetreatment of key matters is “All AboutWills” (March 2010). In this program, askilled faculty (Sheryl Randazzo, WilliamBernstein, Donna Stefans, Linda Toga,Richard Weinblatt, and Ernest Wruck)addressed will basics, dispositive provi-sions, contingent beneficiaries, testamen-tary trusts, testamentary fiduciaries, mis-cellaneous provisions, and the ethics issuesrelated to rush wills, judging capacity, andthe like. The program provides eightMCLE credits (six general; two ethics).

Those seeking not a grounding in thebasic elements, but just a quick look atintroductory issues – perhaps to see if thefield is of interest – might want to consid-er the Academy’s one-credit recordings:“Basics of Wills, Trusts & Estates” fea-turing Scott McBride (Surrogate’s CourtLaw Department) and “Elder LawBasics” featuring Eileen Coen Cacioppo


er, every professional firm still need to bealert to having certain of their employees(whether or not they are attorneys) alsosecure a PTIN.

Attention: Estate, Elder Care, andOther Attorneys

If you expect to sign any (and I do meanANY- there is no de minimus rule) Federaltax return for which you receive compensa-tion, you need a PTIN (Preparer TaxIdentification Number) from the InternalRevenue Service (“IRS”). If your answer is‘no’, you can skip the rest of this alert.

Certified Public Accountants and non-licensed storefront tax preparers seem to beaware of this new IRS initiative but myexperience over the last two months fromspeaking with fellow attorneys is that manynever have heard about a PTIN (which hasbeen in existence for many years but wasnot required for tax preparation) and therules announced by the IRS on September28, 2010 requiring all compensated tax pre-parers (and, in many cases, many of theiremployees such as paralegals1) to registerwith the IRS before the tax preparer signsand files his/her first tax return on or afterJanuary 1, 2011.

This author has had a PTIN for manyyears from the time that it replaced the needto include a tax preparer’s Social Securitynumber on the income tax return. There isno telling how many clients have their taxpreparer’s Social Security number on taxreturns prepared in the pre-internet age.You still may be using your Social Securitynumber when you sign off on the FederalEstate Tax Return (706) or Federal Gift taxReturn (709) prepared by you or someonein your office. Well, that era is closing fast.

While you are encouraged to continuereading this article, here is the IRS link foryou to obtain your first (and only) PTIN or‘refresh’ (a new IRS term) an existingPTIN. You are not required to enter yourcurrent PTIN when registering but ‘refresh-ing’ professionals will be assigned the samenumber they have had providing all of thenewly submitted information matches whatthe IRS already has on file.http://www.irs.gov/taxpros/article/0,,id=210909,00.html

Since you can’t copy and paste the aboveunless you’re reading an online version ofthis article, you can go you www.irs.gov ;click on the tab that says “Tax

Professionals”; and drill down and arounduntil you find the “Sign Up Now” informa-tion. (I’ll call some oddities to your atten-tion later in this article but it’s a pretty easyprocedure.) You will need to have certaininformation available before you gothrough the process but you’ll be alerted tothat fact before you begin. If you choose notto file online, you can access new form W-12 (IRS Paid Preparer Tax IdentificationNumber (PTIN) Application) which wasissued in September and (already) revisedin October. Make sure to use the October2010 edition if you are doing a paper appli-cation.

Did I mention that I have 4 inches ofPTIN reading material since this processbegan? That’s the thickness as I write whatyou are reading. The IRS alerts you that apaper application will take 4-6 weeks toprocess. For some readers, that may be toolong to wait. I registered on the first day thatit could be done online- -September 28. Theonline process should be instantaneousalthough for me, who was ‘refreshing’, ittook the IRS 6 days to compare my submis-sion to what it already had on file for me.My approval arrived, via email, on Sunday,October 3. I suspect that length of time todissipate as the process evolves.

On October 15, I received a postcardfrom the IRS (not that envelope with theeagle on the front connoting an audit orunexpected assessment) saying that if itwasn’t me who created my PTIN onlineaccount, I should immediately contact thePTIN telephone hotline (see below). This isjust an IRS precaution to make sure that itwas really me who applied for the PTINand not some nefarious prankster who hadall of the necessary information to apply inmy name.

Well, I’m all set come January 1. Now letme help you get set. It is estimated thatthere are 1.2 million tax preparers, so don’tprocrastinate.

Here is what you’ll need to begin:Your Social Security Number. Personal information (name, mailing

address, date of birth). Business information (name, mailing

address, telephone number). This line iscompleted only by self-employed practi-tioners or individuals who are owners, part-ners or officers of a tax preparation busi-ness.

Your name, address, and filing status

EXACTLY as it appears on the most recentindividual income tax return filed by you.Note to the newly married woman: Followthe aforementioned instruction literally.After you get your PTIN, call the PTIN hot-line (below) and have it changed, if that iswhat you want.

Explanations for any felony convictionsin the past 10 years (Hopefully you cancheck ‘none’).

Explanations for problems with yourU.S. individual or corporate tax obligations.

Credit or debit card for the $64.252 PTINuser fee (When the author applied, AMEXwas not accepted. That still may be the casewhen you apply. Have your Visa,MasterCard, or Discover or debit cardavailable.)

Your CAF (Central Authorized File)number. That’s the number that you put ontax powers of attorney. If you do not knowthis number, it should not prevent you fromobtaining a PTIN but if you think that youhave one, it’s best to include it.

If applicable, any U.S.-based profession-al certification information (CPA, attorney,enrolled agent, enrolled retirement planagent, enrolled actuary, certified acceptanceagent, or state license) including certifica-tion number and state of issuance. If youdon’t list your professional license number,you will be treated as a tax preparer who issubject to the new IRS test-taking and con-tinuing education requirements. If you havedual licenses (e.g., attorney and CPA), eachis to be entered on the application.

Every applicant needs his/her ownunique email address- -no sharing. Also,you only get 3 attempts within a 24 hourperiod to correctly register online. If youstill have a question, you can call an IRSPTIN specialist at 1- 877-613-PTIN (7846).

Why Compensated Tax PreparersNeed a PTIN

All tax preparers are governed byTreasury Department Circular 230“Regulations Governing the Practice ofAttorneys, Certified Public Accountants,Enrolled Agents, Enrolled Actuaries,Enrolled Retirement Plan Agents, andAppraisers before the Internal RevenueService” (http://www.irs.gov/pub/irs-pdf/pcir230.pdf). Failure to comply withCircular 230 can lead to suspension frompractice before the Internal Revenue Serviceand penalties. The final PTIN regulationswere published in the Federal register onSeptember 30, 2010.3 The aforementionedregulations expand the reach of Circular 230to all compensated tax preparers.

Your Employees Who Are NotAttorneys, CPAs, or Enrolled Agents

It’s back to test-taking4 for these people.Initially (but not until sometime in 2011)two types of tests will be offered. One testwill cover wage and 1040 non-business taxreturns and the second type will cover wageand 1040 small business tax returns. Thereis no mention in the regulations about a testfor estate (assuming that Congress refresh-es the estate tax) and gift tax returns.Nevertheless a PTIN will be required. InFrequently Asked Questions, the IRS hassaid that “The IRS will issue additionalguidance or instructions for other taxreturns.”5 There is some discussion of pos-sibly changing the PTIN requirement fornon-signing employees who work for a lawfirm or accounting firm under the directionof an attorney or CPA.6 In addition to thetest, ‘registered tax return preparers’ will berequired to take 15 hours of continuing edu-cation courses in each ‘registration’ year.7This is not the same as a calendar year. 3 ofthose 15 hours must be for a federal tax lawupdate and 2 of those hours must be for tax-related ethics topics. Just as we (attorneys)do, Registered Tax Return Preparers mustkeep records (proof) of their compliancewith the continuing education rule.Attorneys, CPAs, and enrolled agents areexcepted from the Circular 230 continuingeducation requirement. Whew! New YorkAttorneys already need 12 hours per yearand New York CPAs need 24 specialtyhours or 40 non-specialty hours of continu-ing education each year.

Any …individual who is compensatedfor preparing, or assisting in the preparationof, all or substantially all of a tax return orclaim for refund of tax…8 must have aPTIN. The word substantially is troubling.It lacks definition although the regulationsdo give some examples.

Generally, the IRS will be consideringthe complexity of the work performed bythe non-signing preparer; decision makingauthority; the dollar amount of the items onthe tax return; and/or the amount of the taxor income tax credit. Observation: if indoubt, register. The preamble to the regula-tions states that the employer identificationnumber (not the PTIN) of others who wererelied on “for the … substantive accuracyof the preparation of the tax return or claimfor refund” (e.g., subcontracted work) mustbe included on the tax return9 (possiblyresulting in a new form to be associatedwith the client’s tax return). That leads to aninteresting observation. Where an account-ing firm retains a law firm (or a law firmretains an accounting firm) to provide spe-cialized tax advice for a tax return that theaccounting (or law) firm is preparing, howwill it look to the client, fee wise, when he,

Preparer Tax Id Number ("PTIN") (Continued from page 4)


Annual Reception Honors Pro Bono Volunteers (Continued from page 1)

Association to Sponsor Its Annual Judicial Swearing-In And Robing Ceremony

Historically, January symbolizes thebeginning of a new year with newdreams and expectations. It marks thecommencement of continued terms ofreelected Judges, and first terms of oth-ers.

We are proud of the close relationshipwhich lawyers of this county and thejudiciary have enjoyed over the years.The development of this alliance is theresult of the efforts of the SCBA in con-junction with the members of the judi-ciary, all devoted to elevating the quali-ty of the legal system including theBench and the advocates who appearbefore it.

It is in this tradition that we have, overthe years, sponsored a Swearing-In &

Robing Ceremony which will be held onMonday, January 10, 2011, commenc-ing at 9:00 a.m. in the auditorium ofTouro Law Center, Central Islip. Wehope you will be able to join the follow-ing members of the Judiciary who willbe sworn in:

Supreme Court: Hon. Andrew A,Crecca; Hon. W. Gerard Asher; CountyCourt: Hon Stephen M. Behar; Hon.Stephen L. Braslow; Hon. James C.Hudson; Family Court: Judge ElectBernard C. Cheng; Judge Elect Caren L.Loguercio; District Court: Hon. ToniA. Bean; Hon. Joseph A. Santorelli;Hon. Martin I. Efman; Judges ElectJohn Andrew Kay and Philip Goglas.

— Lacova

completing 184 hours. Mitchell Shapiro,outraged by the number of women whoare financially abused by their errant hus-bands has worked 131 hours committed tohelping them. This is but a summary of thefine accomplishments of those who werehonored for their volunteer services.

Mr. Chase, appreciative of the honoreesefforts said that “Honoring those attorneysdemonstrating a genuine commitment topro bono legal services not only serves asrole models for their colleagues, more-

over, when examining their individualmotivation for doing so, there is a com-mon theme . . . the joy they derive fromtheir ability to assist those in dire need andthe heartfelt thanks they receive frombeing able to do so.”

Note: Laura Lane is the Editor-in-Chiefof The Suffolk Lawyer. She is an award-winning writer, former journalist, andcurrently works in the HAVA Departmentat the Nassau County Board of Elections.


she or it sees one or more such listings?Currently, it will not be necessary to list, onthe tax return, the PTINs of all of youremployees who perform substantial workon a tax return but as has been stated, theyall need a PTIN.

MiscellaneousA piece of trivia - I started preparing pay-

roll and simple income tax returns at age 13for my CPA father. Under the upcomingPTIN rules, I could not substantially helphim since a PTIN cannot be issued to any-one under the age of 18.

Special PTIN application rules apply toforeign (non US) tax preparers who do nothave a US Social Security number, and toconscientious religious objectors without asocial security number.10

Sometime in the future, there will be apublic database of return preparers.

According to David Williams, head ofthe IRS Return Preparer Office, the IRSwill not reject a tax return, or penalize thetaxpayer, because of a missing PTIN. Theresponsibility for including it on the taxreturn falls squarely on the signing tax pre-parer.

Currently, a PTIN will need to berenewed annually, and a user fee paid, onthe anniversary date of the issuance of thePTIN.11

If you walk away from your computerduring the registration process (as I did toattend to another business matter for 15minutes), you will get knocked off the site.The good news is that when you sign backin, you won’t need to re-enter informationpreviously entered. It will have been saved.

On the online application under“Addresses,” the Permanent MailingAddress area accepted my 9 digit zip codebut in the area for the Address used on myU.S. Individual Tax Return, the 9 digit zipcode was rejected and only my 5 digit zip

code was accepted (even though my taxreturn includes my 9 digit zip code).

For those thirsting for more detailedinformation, you can visit Google, Bing,Wikipedia, irs.gov or your favorite searchengine.

Note: Alan E. Weiner, CPA, JD, LL.M. isPartner Emeritus of the CPA firm of HoltzRubenstein Reminick LLP, with offices inNew York City and Melville, Long Island.He founded the Firm’s tax department in1975 and headed it through 2006. He isactive on the tax committees of the BarAssociations of Suffolk County and NassauCounty, and the New York State Society ofCPAs (“NYSSCPA”), for which he servedas the 1999-2000 President and also as aChairman of its Tax Division ExecutiveCommittee. He is the author of “All AboutLimited Liability Companies and

Partnerships” and DFK International's“Worldwide Tax Overview.”

1 The following letter from The American College ofTrust and Estate Counsel to the Internal RevenueService addresses the possible need for paralegalsto obtain a PTIN. It was written before the regula-tions were finalized on September 30, 2010. Thequestions have not yet been addressed by the IRS.http://www.actec.org/public/Governmental_Relations/Sherby_Input_09_10_10.asp

2 $50 is the IRS portion of the user fee and $14.25will go to the third party vendor (Accenture)administering the program. The total fee maychange in the future as the program matures.

3 Federal Register/Vol. 75, No. 189, Page 60309;Treasury Regulation Section 1.6109-2.

4 See Frequently Asked Questions on the IRS web-site. Testing is expected to begin in mid-2011;although an applicant can take the test an unlimit-ed number of times, a fee will be charged eachtime; applicants who have a valid PTIN when test-ing begins will have until December 31, 2013 topass the test; the test is taken at a designated test-ing site. Here are links to the IRS FAQs

(Frequently Asked Questions)h t t p : / / w w w . i r s . g o v / t a x p r o s / a r t i c l e / 0 , ,id=218611,00.html#Tips and http://www.irs.gov/taxpros/article/0,,id=230145,00.html These FAQsare as of November 18th and October 29th, respec-tively. FAQs are updated frequently. A bright per-son thought to put a date after each of the ques-tions. As a result, if you visit these FAQs often,you can skip over questions that predate your mostrecent visit.

5 ibid6 IRS News Release IR-2010-99, Sept. 28, 2010;

repeated in IRS News Release IR-2010-107, Oct.27, 2010.

7 In IRS News Release IR-2010-107, Oct. 27, 2010,the IRS announced that the 15 hour continuingeducation requirement would be waived for 2011.

8 Treasury Regulation Section 1.6109-2(g); TreasuryRegulation Section 301.7701-15

9 Federal Register/Vol. 75, No. 189, Page 6031010 Revenue Procedure 2010-41, Internal Revenue

Bulletin 2010-48, November 29, 201011 Treasury Regulation Section 300.9 and the pream-

ble thereto; also IRS News Release IR-2010-99,Sept. 28, 2010

Preparer Tax Id Number ("PTIN") (Continued from page 26)


SUFFOLK LAWYER SERVICE DIRECTORYTO PLACE YOUR AD, CALL 866-867-9121

REAL ESTATE SECTIONSERVICES

NEED TO FILL A RENTAL SPACE?

Let Renters Call You!Call 866-867-9121 To Place Your AD

LAWYER TO LAWYER

SECURITIESLAW

John E. Lawlor, Esq.Securities

Arbitration / Litigation; FINRA Arbitrations;

Federal and State Securities Matters

(516) 248-7700129 Third Street

Mineola, NY 11501johnelawlor.com

EXPERIENCEDIMMIGRATION

ATTORNEYJulia R. Binger631-261-0960168 Laurel Avenue

Northport, NY 11768

IMMIGRATION ATTORNEY

OFFICE CLEANING

For All Your Cleaning Needs

FOUR STAR OFFICE

MAINTENANCE“The Small Office

Specialists”Serving Western Suffolk

Since 1988Satisfaction Guaranteed

Bonded & InsuredAndrew V. Caranante

Cell: (631) 766-1825

MARKET LOSSES

Do you have a client withSTOCK MARKET LOSSES

due to negligent financial advice, misrepresentation, variable annuities, unsuitable investments, churning, etc.W. ALEXANDER MELBARDIS, M.B.A., J.D.

Attorney Experienced in FINRA SECURITIES ARBITRATIONS & MEDIATIONS

194 Main St., Setauket, NY631-751-1100

OFFICE SPACE

Office Space For Rent1 to 2 Professional Offices inLaw Office On Route 110 In

Melville, Near L.I.E. & Northern State Parkway.Use Of Conference Room

Call 631-423-4600

Starting at: $79/month• Mail & Parcel

Receiving Services• Phone Answering in Your Name

(212) Exchange • Full Floor Corporate Setting w/

Well Appointed Reception Area• Conf. rooms (hrly rental)• Furn. Offices (full/part time)

at 110 Wall St., 11th Floor(800) 205-7685

Serving The Legal ProfessionFor Over 25 Years

[email protected]

Wall Street OfficeOFFICE FOR RENT

Printing Professionfor the

quick printing - fast turnaround

letterhead - business cards

forms - four-color work

[

specialty printing

(866) 867-9121


________________________By Dorothy Paine Ceparano

These days, questions and quarrelsabout the distribution and protection ofwealth abound. Will the Bush tax cutsstay in effect or won’t they...and, eitherway, what will the result mean for thosebequeathing assets or acquiring them?How have the tumultuous events in theinvestment world affected the fiduciaryresponsibilities of those making decisions

for or rendering advice to others? Is the“Giving Pledge” a worthy redistributionof wealth through outsized philanthropyor a way to leverage control that rightlybelongs to the government?i While thevarious debates go on, one thing remainscertain: Elder law and estate planninglawyers – most of whom represent peoplewith more modest means than the 40 rich-est Americans who initiated the “pledge”– will continue to be called upon to advise

their clients on the best ways to preservewealth and the best ways to give it awayor pass it on.

Attorneys in the field will be interestedto learn that the Academy provides anabundance of CLE offerings on elder lawissues and estate planning techniques...pro-grams on virtually everything from basicwill drafting, through sophisticatedMedicaid planning, through trusts for virtu-ally any situation, through handling pro-bate and other court proceedings.Important new programs are beingplanned, and a considerable number of pastpresentations have been recorded andarchived. Archived programs are availableon-line as video replays or MP3 recordingsand in tangible formats as DVD or audioCD recordings.

To check out what is archived, attor-neys have a few alternatives. TheAcademy’s new 2011 Recorded CLECatalog, which groups audio and DVDrecordings by subject matter, has beenmailed to SCBA members and is alsoavailable on the SCBA website(www.scba.org) with a click to the ovalentitled “Current Audio/Video Catalog.”A listing of archived on-line programs(plus real-time webcasts), also groupedby subject matter, may be viewed (atwww.scba.org) by clicking the oval enti-tled “Internet CLE.” Would-be pur-chasers of on-line video replays mayview a short demo before deciding to takethe course.

The 24-7 availability of recorded pro-grams – on-line or in a tangible format –is a boon to many practitioners. But thosewho prefer their CLE live and in real timeshould be sure to calendar a number ofimportant new offerings on the horizon.

On February 7, skilled practitionersDavid DePinto and David Okrent willoffer an evening estate planning seminarentitled “The State of the Estate Tax.”A huge turnout is anticipated, and theprogram will also be webcast in real time.Another potentially SRO program isGeorge Roach’s popular “Elder LawUpdate,” scheduled, as in the past, as aValentine’s Day (February 14) matinee(plus a real-time webcast).

An ongoing series, Trusts A to Z,organized by elder law attorney RalphRandazzo, also has been drawing a con-siderable turn-out. Already presentedcomponents (now available on-line andas recordings) include Revocable Trusts(Steven Kass), Testamentary Trusts(William Bernstein), and MedicaidTrusts (Kim Smith). Coming up arelunch-time seminars coveringSupplemental Needs Trusts (BethPolner Abrahams on December 7);Lifetime Trusts for Minors (January11); Irrevocable Life Insurance Trusts(Richard Weinblatt on February 2);GRATs (Paul Dorr on March 1);Dynasty Trusts (Paul McGloin on April5); and Charitable Trusts (Paul Dorr onMay 4). All will also be available as real-time webcasts and, after the live pro-grams, in recorded formats.

Just prior to this writing, the Academywas privileged to present a program fea-turing Suffolk County Surrogate CourtJudge, the Honorable John M. Czygier,Jr. Entitled “Evolving Issues inSurrogate’s Court,” the presentation,infused with the judge’s characteristic witand energy, addressed, among otherthings, death bed marriages, inheritances

In early November, Surrogate John Czygier discussed “Evolving Issues in Surrogate’sCourt” for an in-person audience of more than 80 and a simultaneous audience of web-cast participants.

ACADEMY OF LAW NEWS

ACADEMY

Calendarof Meetings & Seminars

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

November30 Wednesday Trial Skills Series: Evidence–What You Thought You

Learned in Law School. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

30 Wednesday Academy Curriculum Committee Meeting. 4:30 p.m. All invited.

December1 Wednesday Guest Seminar: Is Your Website Working for You?

Free CLE presented by Nexis-Lexis, with complimentary lunch. 12:30–1:30 p.m. Pre-registration requested.

3 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Breakfast buffet. All SCBA members welcome.

6 Monday Annual School Law Conference. Sheraton Long Island Hotel. 9 a.m. to 3:30 p.m. Continental breakfast (from 8:30 a.m.) and buffet lunch.

7 Tuesday Trusts Series: Supplemental/Special Needs Trusts. 12:30–2:15 p.m. Sign-in and lunch from noon.

7 Tuesday The Basic Fundamentals and Purpose of Medicare Set-Aside.Presented by the SCBA Workers’ Compensation Law Committee. 6:00–8:00 p.m. Light supper and sign-in from 5:30 p.m. N.B. This program will NOT be recorded or webcast.

8 Wednesday Copyright, Trademarks & Patents: What the General Practitioner Needs to Know. 6:00–9:00 p.m. Light supper and sign-in from 5:30 p.m.

January7 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m.

Breakfast buffet. All SCBA members welcome.11 Tuesday Trusts Series: Lifetime Trusts for Minors. 12:30–2:15 p.m.

Sign-in and lunch from noon.12 Wednesday E-Discovery. 6:00–9:00 p.m. Light supper and sign-in

from 5:30 p.m. 13 Thursday Medical Billing. Presented by the SCBA Health & Hospital Law

Committee. 6:00–9:00 p.m. Light supper and sign-in from 5:30 p.m. 19 Wednesday Dealing with Title Companies. 6:00–9:00 p.m.

Light supper and sign-in from 5:30 p.m. 20 Thursday Bankruptcy Law for New Lawyers & Paralegals.

Lunch ‘n Learn, 12:30–2:30 p.m. Lunch and sign-in from noon. February2 Tuesday Trusts Series: Irrevocable Life Insurance Trusts.

12:30–2:15 p.m. Sign-in and lunch from noon.4 Friday Law in the Workplace Conference. Presented by the SCBA

Labor & Employment Law Committee. 9 a.m.–4:00 p.m. Sign-in from 8:30 a.m. Continental breakfast and luncheon.

7 Monday State of the Estate Tax. 6:00–9:00 p.m. Light supper and sign-in from 5:30 p.m.

9 Wednesday Family Court Update. 6:00–9:00 p.m. Light supper and sign-in from 5:30 p.m.

10 Thursday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Breakfast buffet. All SCBA members welcome. [Note change of date.]

14 Monday Elder Law Update with George Roach. 2:00–5:00 p.m. Sign-in from 1:30 p.m. Valentine’s Day snacks.

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

Information & Insights for Attorneys Who Handle Estate & Elder Law Matters

More Academy Newson page 25;

CLE Course Listings on pages 22-23)


ACADEMY OF LAW OFFICERS

Nancy E. EllisDiane K. FarrellRichard L. FilibertoAllison C. ShieldsJohn C. ZaherHerbert (Skip) KellnerMarilyn Lord-James

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

Daniel J. TambascoSean E. CampbellAmy Lynn ChaitoffHon. James P. FlanaganJeanette GrabieScott LockwoodLita Smith-Mines

DEANRichard L. Stern

Executive DirectorDorothy Paine Ceparano

li life calendarleif rubinstein said he’s been volun-teering his time for the pro bono foundation...

Documents