Even though there’s a chill in the air, things have been jumping in and around Queens, so without further ado, here’s what you need to know:
New Protections for Referees in Foreclosure Cases
On September 23, 2014, and effective immediately, Governor Cuomo signed New York Assembly Bill 1582. The law prevents referees from being held liable for interest or penalties on transfer taxes to be paid on deeds filed in their capacity as referee pursuant to a judgment of foreclosure and sale.
Previously, pursuant to City Administrative Code 19 RCNY 23-08, referees in foreclosure proceedings could have been viable for interest and fees imposed by the City Department of Finance for the failure to timely file a Real Property Transfer Tax (RPTT) return following the sale of foreclosed property.
Pursuant to the new law, the Tax Law and New York City Administrative Code were amended as follows:
Tax Law ~~ 1422, 1437, 1438-p, 1439-p, 1439-pp, 1447-a, 1448-v, 1449-u, 1449-pp, 1449- ppp, 1449-pppp, and 1449-ppppp were amended to provide:
“Foreclosure Proceedings. Where the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, the Referee or Sheriff effectuating such transfer shall not be liable for any interest or penalties that are authorized pursuant to this article or article thirty-seven of this chapter.”
Tax Law ~1240 was amended to provide:
“Notwithstanding any other provision of law to the contrary, the authorization to impose tax upon the transfer of real property pursuant to subdivision (b) of section twelve hundred one of this article shall not, when the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, include the authorization to impose civil or criminal penalties, interest, or other liability upon the referee or sheriff effectuating the transfer.”
Section 11-2119 of the Administrative Code of the City of New York has been amended to provide:
“Foreclosure proceedings: Where the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, the referee or sheriff effectuating the transfer shall not be liable for any interest or penalties authorized by this chapter or chapter forty of this title.”
Practitioners may also wish to consider adding the following language to Judgments of Foreclosure and Sale submitted for signature: “The Referee shall not be held responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless for any such penalties or fees assessed”.
Amendment of CPLR 3216
In the event that your county heard of and/or follows the CPLR, you may want to note this change to the dismissal for Want of Prosecution section. The changes dictate that when an action is taken for failure to prosecute, it must be with notice to all parties; made one year after the joinder of issue OR six months after the issuance of a Preliminary Conference Order.
House of Delegates Meeting November 1, 2014
At the meeting, there were two main topics discussed: Whether New York should adopt the Uniform Bar Exam (UBE) and Mandatory Reporting of Pro Bono services (Pro Bono).
By way of background, the UBE has been adopted by 14 jurisdictions (while it is only my personal opinion, a review of the states that have adopted the UBE reads like a Who’s Who of states that have people who want to get out of them and come to New York…Alabama, Alaska, Arizona, Colorado, Idaho, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington and Wyoming). The UBE is made up of a common set of six Multistate Essay Examination questions, two Multistate Performance Test tasks and the Multistate Bar Examination and the exam results would become a portable score. It would seem that only the score is portable, not the license to practice law in the participating states and applicants must still follow the rules for admission in those other jurisdictions.
On October 6, 2014, the Court of Appeals issued a Request for Comment with respect to a recommendation from the Board of Law Examiners to replace the current New York State bar examination for the administration of the July 2015 bar exam, with comments due no later than November 7, 2014. At the House of Delegates meeting on November 1, 2014, Committee Co-Chairs Eileen D. Millett and Prof. Patricia E. Salkin of the Committee on Legal Education and Admission to the Bar presented a report regarding this issue.
The proposed change to the New York State Bar Exam would require all candidates to take the Uniform Bar Exam, (“UBE”) plus take and pass a separate New York law exam consisting of 50 New York-specific multiple choice questions given on the second day of the exam. It would also eliminate the five essay questions that test knowledge of New York-specific law in favor of the UBE essays.
Concerns over the rush to UBE proposal for July 2015 were voiced. Some of the concerns noted that there have been no New York state-specific studies about the impact of adoption of both the UBE and New York Law Exam on applicants, and the state bar recommends that the New York Board of Law Examiners should first conduct and publish a disparate impact analysis of both the UBE and the New York Law Exam for minority test takers. Also, there is concern over what impact the requirement of passage of both the UBE and a New York Law Test will have on test-takers. Moreover, the 50 multiple-choice questions on the revised New York portion of the exam have not been “pre-tested” to see how test takers would handle the new format; the sample questions have not yet been drafted nor made publicly available. Further, candidates for the July 2015 bar exam will be disadvantaged by not having the updated materials available well in advance of the examination, and many law students have expressed concern that they would be disadvantaged as they have already made curricular decisions and selected commercial bar review courses based on a belief that they will be taking the existing New York Bar Exam.
After these concerns were presented, the NYSBA found that a 30 day comment period was too short to enable all of the stakeholders a fair and reasonable time for study and discussion of all of the impacts associated with dramatic change to the composition of the bar exam in New York. The state bar also recommends that if the court system adopts the UBE or makes other major changes to the test, that changes be phased in with “fair advance and appropriate notice” to test takers; the state bar requests a two-year reprieve of the proposed change, effectively delaying a new exam until 2017. The NYSBA recommended that the court system delay the decision on adopting the UBE and authorized its President, Glen Lau-Kee to take whatever action is necessary to ensure that the revised bar exam does not take effect next summer.
On November 10, 2014, the Court of Appeals issued a release providing additional time for comment, until March 1, 2015. The Uniform Bar Examination will not be administered in July 2015, and a committee will be appointed to study the issues surrounding the proposal. The press release may be viewed online at www.nysba.org/UBEComments.
(Thanks to Marie-Eleana First for contributing to this article)
On May 1, 2013, the Administrative Board of the New York State Unified Court system enacted section 118.1(e) (14) of the Rules of the Chief Administrator. This rule requires lawyers to report on their biennial registration forms: (a) the number of hours that the lawyer voluntarily spent providing unpaid legal services to the poor and underserved clients during the previous biennial registration period; and (b) the amount of voluntary financial contributions the lawyer made to organizations primarily or substantially engaged in providing legal services to the poor and
underserved during the previous biennial registration period. This rule was promulgated at the insistence and direction of Chief Judge Jonathan Lippman and without consultation with any Bar Association. The unilateral implementation of this rule by the CJ created a great deal of controversy and anger with his decision. It took over eighteen months, but due to the outcry of many lawyers, bar associations and the efforts of the NYSBA and its President Glen Lau-Kee, significant changes to the rule were negotiated and proposed.
In June, the House of Delegates met and decided to postpone a vote on a pending resolution to November 1, 2014 in order to give Lau-Kee more time to work on a solution. Since then, he and President-elect David P. Miranda have met four times with Chief Administrative Judge A. Gail Prudenti and Helaine M. Barnett who chairs the Task Force to Expand Access to Civil Legal Services in New York. In addition, Lau-Kee said he also had lunch twice with Judge Lippman to discuss the matter. During those meetings, there was an agreement that the information obtained from the biennial registration forms, should be confidential.
At the New York State Bar Association House of Delegates meeting on November 1, 2014, the members adopted a resolution asking the Office of Court Administration to keep information concerning the reporting of pro bono hours and financial contributions anonymous and the data obtained in the aggregate. Lau-Kee told the House that it is believed confidentiality could be accomplished by separating the submission of actual data from an attorney’s certificate of compliance. The thought being, attorneys would file a certification verifying compliance, but the data would be filed anonymously and independently. Additionally, expanding the narrow definition of pro bono to include other categories of contributions attorneys are making, which are not currently recognized. The House also adopted an administrative resolution which amends its comments to conform with Rule 6.1 of the Rules of Professional Conduct, which increased the aspirational hours from 20 to 50 of pro bono service, which lawyers are strongly encouraged to perform annually. However, a “ “friendly amendment” to the resolution, offered by Past President A. Thomas Levin, highlights that the change to the comment is merely to conform to the rule, as adopted by the Appellate Divisions.
(Thanks to past president Richard Gutierrez for contributing to this article)
Appearing Before the Court in Queens County: Views from the Bench and The Bar
On Wednesday, November 5, 2014, the QCBA presented the above CLE. The premise was to learn from the Judges on the panel how to be a more effective advocate and achieve better results and to learn from successful attorneys the procedures to follow and their strategies for success. The CLE was sponsored by The Judicial Relations Committee, FindLaw and Signature Bank. The seminar was the brainchild of Steven Miller, Esq., and Steven Orlow, Esq. I would like to thank the Steves and particularly Mr. Miller for lining up the speakers and ensuring that this event was a success.
The panelists included Administrative Judge, Hon. Jeremy Weinstein, Hon. Kevin J. Kerrigan, Hon. Frederick D.R. Sampson and Hon. Martin E. Ritholtz from The Bench. The Bar panelists were Alan C. Kestenbaum, Esq., George E. Nicholas, Esq., James R. Pieret, Esq., and Peter S. Thomas, Esq. The main themes of the seminar were the concepts of preparedness but, more importantly, civility and respect.
It was great seeing so many new faces at the seminar and I think everyone involved agrees that the exchanges and presentations were congenial, civil and showed Queens County at our best. Thanks to all involved.