Marital Quiz by George J. Nashak Jr.

Question #1 – If a respondent fails to comply with financial disclosure, Family Court Act §424-a, must the court grant relief demanded in the support petition or preclude respondent from offering evidence as to respondent’s financial ability to pay support?
Answer: Yes, matter of Speranza v. Speranza 2014 NY Slip Op 109 (2nd Dept.).

Question #2 – True or false, the CSSA minimum is $136,000.00?
Answer: False, for 2014, the amount has been increased to $141,000.00.

Question #3 –    True or false, the temporary maintenance cap is $500,000.00?
Answer: False, it is now $543,000.00.

Question #4 – Should a hearing be granted to change a custody agreement based upon the mother’s allegations of the child’s alarming behavior?
Answer: Yes, Matter of Lore v. Sclafani 2014 NY Slip Op 667 (2nd Dept.)

Question #5 –  If one party occupies the marital home during the pendency of the action, does the other party, who voluntarily moved out, have to contribute to the mortgage and real estate taxes?
Answer: Yes, Judge v. Judge 48 AD3d 424; 851 NYS2d  639 (2nd Dept. 2008).

Question # 6 – Does the Family Court have authority to appoint a natural parent to be guardian of his or her child?
Answer: Yes, Matter of Marisol N.H.., 2014 NY Slip Op 664 (2nd Dept.)

Question #7 – Does Plaintiff receive a credit against child support arrears for voluntary payments to the Defendant for the benefit of the child?
Answer: No, O’Brien v. O’Brien 2014 NY Slip Op 1590 (2nd Dept.)

Questions #8 – Should marital debt, incurred prior to the commencement of an action for divorce, be equally share by the parties?
Answer: Yes, Diaz v. Gonzalez 2014 NY Slip Op 2010 (2nd Dept.)

Question #9 – Is reimbursement required when one party has paid the other party’s share of marital debt?
Answer: Yes, Diaz v. Gonzalez 2014 NY Slip Op 2010 (2nd Dept.)

Question #10 – Is the payer spouse entitled to a credit for overpayment of child care expenses against child support arrears?
Answer: Yes, Zengling Shi v. Shenglin Lu 2013 NY Slip Op 6373 (2nd Dept.)

Recordings or Reporters? by Jim Pieret

I have been trying cases in Queens County on a regular basis for almost 45 years. In that time I have seen many changes, some good, some not-so-good. This article is about a proposed change that is worse than “not-so-good.” It endangers our ability to properly represent our clients at all stages of litigation.

There is presently a budget-driven movement to replace Official Court Reporters with electronic recording devices. While we all share concerns about the rising cost of government and rising taxes, this is not the way to accomplish savings.

When parties appear in a court of record, it is usually their one opportunity to be heard on matters that can affect their freedom (even if OCA starts with civil proceedings, they will eventually implement electronic recording in criminal matters), their livelihood, their ability to provide future medical care for injuries sustained in an accident, their rights to property, and a host of other issues that impact their daily lives. An accurate record of those proceedings is vital in the event of a re-trial or an appeal.
Electronic recording cannot sort out who is speaking when there is more than one person talking at a time.

Electronic recording cannot ask the Judge, counsel or a witness to repeat something that is unclear, to spell a difficult word (especially important with expert witnesses), or clarify testimony from a witness with poor diction or heavily accented English.
Electronic recording is subject to failure which can result in vital parts of a record being lost forever or in long delays in proceedings while repairs are made.

The transcription of electronic recording is subject to the interpretation of the transcriptionist. In the event of an appeal, that results in counsel being forced to listen to the recording and make changes to the “official” transcript to reflect what was actually said. If the attorneys cannot agree on what was actually said, then the Trial Court or the Appellate Court will have to sort out what was said.

Even with a “playback” function, electronic recording cannot read back portions of testimony, especially where more than one person is speaking at a time. Playback is subject to the individual juror’s interpretation of what the recording says.
Official Court Reporters can do all of the above and more.

Accurate read backs are a vital part of any trial or jury deliberation. Juries ask for read backs when they have differing recollections of what a witness may have said. Electronic recording playbacks may, or may not be clear, and may or may not resolve the issue.

Most litigators have had occasion when the Official Court Reporter essentially stopped the proceedings by indicating that he or she was unable to get a clear record because multiple people were speaking at once. A recording device cannot alert the Court, counsel and the parties that an accurate record is not being taken. That results in an inaccurate or incomplete record without the opportunity to correct it in real time.

Many litigators have had occasion where the Official Court Reporter has told them or told a witness that they are not speaking clearly, or that they are speaking too rapidly for an accurate record. A recording device cannot do that, resulting in an incomplete or inaccurate record without the opportunity to remedy the situation at the time that it is occurring.

As attorneys, it is our particular responsibility to insure that the Courts of the State of New York continue to function as dispensers of justice for all who appear before them. We cannot abdicate that responsibility to The Chief Judge, to the Chief Administrative Judge, or to OCA for budgetary reasons. As members of the Queens County Bar Association, we must let our elected officials know that we are vehemently opposed to the implementation of electronic recording devices in the place of Official Court Reporters.

Roll Call by Diana Szochet

The Following Attorneys Were Disbarred By Order Of The Appellate Division, Second Judicial Department:

Bret Jay Davis (September 18, 2013)
By order filed on December 28, 2005, the Supreme Court of California disbarred the respondent, and struck his name from the roll of attorneys, following a prior order of suspension, which required him to make restitution to six clients for a combined total of $20,150 in unearned legal fees, and to one client for a $950 fee he charged and collected illegally. The respondent also was required to notify his clients, and his adversaries, of his suspension, and to file a declaration of his compliance. When the respondent failed to file the required declaration, a further disciplinary proceeding was commenced, charging him with willfully disobeying an order the court. He thereafter was disbarred on default. Upon the Grievance Committee’s application for reciprocal discipline pursuant to 22 NYCRR 691.3, the respondent was disbarred in New York.

Michael Stewart Lazarowitz (September 18, 2013)
The respondent tendered an affidavit of resignation wherein he acknowledged that he could not successfully defend himself on the merits against allegations that he failed to safeguard funds entrusted to him as a fiduciary, incident to his practice of law.

Howard Marc Sklar (September 18, 2013)
The respondent tendered an affidavit of resignation wherein he acknowledged that he could not successfully defend himself on the merits against pending charges of failing to fully and timely cooperate with the Grievance Committee; neglecting a legal matter; engaging in a conflict of interest; and failing to comply with the rules pertaining to the maintenance of escrow accounts by, inter alia, failing to promptly deliver funds to a person entitled to receive them, failing to preserve client funds, commingling, making cash withdrawals, and failing to maintain bookkeeping records.

Matthew Burstein (September 25, 2013)
On July 26, 2012, the respondent was found guilty, after a jury trial in the United States District Court for the Eastern District of New York, of one count of conspiracy to commit bank and wire fraud, in violation of 18 USC 1349, two counts of wire fraud, in violation of 18 USC 1343, and seven counts of bank fraud, in violation of 18 USC 1344. Inasmuch as the federal felony of bank fraud is essentially similar to the New York felony of grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40, and scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65, the respondent was automatically disbarred, and ceased to be an attorney, effective July 26, 2012.

Alan M. Rocoff, a suspended attorney (October 2, 2013)
The respondent tendered an affidavit of resignation wherein he acknowledged that he could not successfully defend himself on the merits against disciplinary charges predicated upon his plea of guilty before the Honorable John P. Walsh, in the Supreme Court, Kings County, to petit larceny, a class A misdemeanor in violation of Penal Law § 155.25.

Jasleen K. Anand, admitted as Jasleen Kaur Anand (October 23, 2013)
The respondent proffered an affidavit of resignation wherein she acknowledged, inter alia, that she could not successfully defend herself on the merits against pending charges that she misappropriated funds or other property belonging to another person, failed to maintain complete records of all funds of a client or third person coming into her possession or render appropriate accounts to the client or third person, disbursed estate funds to herself and/or her law firm without authorization, failed to maintain required bookkeeping records for an estate, failed to keep a client reasonably informed of the status of a matter, and engaged in conduct involving dishonesty, deceit, fraud or misrepresentation.

Thomas F. Bello (October 23, 2013)
The respondent proffered an affidavit of resignation wherein he acknowledged, inter alia, that he could not successfully defend himself on the merits against pending charges that he engaged in a pattern of neglecting legal matters entrusted to him (two counts), engaged in a pattern of failing to maintain adequate communication with his clients (two counts), failed to comply with numerous court directives, and failed to timely satisfy the terms of a settlement agreement.

Ray Alfred Jones, Jr. (November 13, 2013)
On October 25, 2012, the respondent entered a plea of guilty in the Supreme Court, Kings County (Walsh, J.) to one count of grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40. His subsequent motion to withdraw the plea was granted on December 20, 2012. On January 29, 2013, the respondent entered another plea of guilty to one count of grand larceny in the second degree, in the same court (Chun, J.) During his allocution, the respondent admitted that, between April 10, 2007, and April 13, 2007, he stole property with an aggregate value in excess of $50,000 from the complainant. On March 25, 2013, he was sentenced, inter alia, to a term of imprisonment of 1 1/3 to 4 years. By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a). Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b), was granted to reflect the respondent’s automatic disbarment on January 29, 2013.

Christopher K. Kuehn (November 13, 2013)
The respondent proffered an affidavit of resignation wherein he acknowledged, inter alia, that he could not successfully defend himself on the merits against allegations that he misappropriated funds entrusted to him as a fiduciary for his own use and benefit.

Matter of Joel A. Grossbarth, admitted as Joel Allann Grossbarth, a suspended attorney (November 20, 2013)
Following a disciplinary proceeding, and a further decision and order of the Court dated November 2, 2011, authorizing the Grievance Committee to file a supplemental petition of charges against the respondent, he entered a plea of guilty, on March 19, 2013, to two counts of grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40, and one count of forgery in the second degree, a class D felony in violation of Penal Law § 170.10. By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a). Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b), was granted to reflect the respondent’s automatic disbarment as of March 19, 2013, and the pending proceedings were discontinued.

The Following Attorneys Were Suspended From The Practice of Law By Order Of The Appellate Division, Second Judicial Department:

Katherine Z. Pope, a suspended attended (September 18, 2013)
On or about November 15, 2011, before the Honorable Stephen L. Braslow, in the County Court, Suffolk County, the respondent entered a plea of guilty to the crime of identity theft in the third degree, a class A misdemeanor in violation of Penal Law § 190.78. By decision and order on motion of the Appellate Division dated May 22, 2012, the respondent was immediately suspended from the practice of law based upon her conviction of a serious crime. Following a disciplinary hearing, the respondent was found guilty of having engaged in illegal conduct reflecting on her honesty, trustworthiness, or fitness as a lawyer. She was suspended from the practice of law for a period of two years, effective immediately.

John D’Emic, a suspended attorney (October 2. 2013)
On October 1, 2009, the respondent pleaded guilty in the Supreme Court, Queens County, to a violation of Judiciary Law § 491, a misdemeanor, which prohibits the sharing of compensation by attorneys with non-lawyers. By decision and order of the Appellate Division dated April 22, 2010, the respondent was immediately suspended from the practice of law based upon his conviction of a serious crime. Following a disciplinary hearing, the respondent was found guilty of professional misconduct, in that he was convicted of a serious crime; knowingly sharing his attorney fees with an attorney whom he knew was disbarred; authorizing the proceeds of the sale of real property owned by his client to be redistributed to third parties without his client’s authorization; and making misrepresentations to a government entity. He was suspended from the practice of law for a period of two years, effective immediately, with no credit for the time elapsed under the interim order of suspension.

Percy A. Randall, Jr., a suspended attorney (October 2, 2013)
On or about February 3, 2011, the respondent pleaded guilty before the Honorable Robert C. McGann, in the Supreme Court, Queens County, to criminal facilitation in the fourth degree, a class A misdemeanor in violation of Penal Law § 115.00, as a result of his involvement in a mortgage fraud scheme in which stolen identities were used to buy and sell properties in Queens.. By decision and order of the Appellate Division dated December 11, 2011, the respondent was immediately suspended from the practice of law based upon his conviction of a serious crime. Following a disciplinary proceeding, the respondent was found guilty of having been convicted of a serious crime. He was suspended from the practice of law for a period of two years, effective immediately.

Learie Richard Wilson (October 2, 2013)
Following a disciplinary hearing, the respondent was found guilty of engaging in conduct involving dishonesty, deceit, fraud and misrepresentation, which adversely reflects on his fitness as a lawyer, as a result of aiding and abetting a client in deceiving a lender at a real estate closing by withholding material information from the lender, and engaging in conduct involving dishonesty, deceit, fraud and misrepresentation, which adversely reflects on his fitness as a lawyer, by exercising a lack of candor with the Grievance Committee. He was suspended from the practice of law for a period of one year, commencing November 1, 2013.

Francis Gregory McClure (October 11, 2013)
The respondent was suspended from the practice of law pursuant to 22 NYCRR 691.13(a) effective immediately and for an indefinite period and until the further order of the Appellate Division, based upon a judicial determination of his incompetence and his commitment to a mental health treatment facility.

Robert C. Fontanelli, admitted as Robert Carl Fontanelli (October 18, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) upon a finding that he posed an immediate threat to the public interest as a result of his failure to cooperate with the Grievance Committee, and other uncontroverted evidence of professional misconduct, to wit, misappropriation of clients’ funds, and the Committee was authorized to institute and prosecute a disciplinary proceeding against him.

Susan Friedman Odery, admitted as Susan Eileen Friedman (October 22, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(iii) upon a finding that she posed an immediate threat to the public interest as a result of uncontroverted evidence of professional misconduct, to wit, misappropriation of client funds and fabrication of evidence, and the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against her.

Glen D. Hirsch (October 23, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) upon a finding that he posed an immediate threat to the public interest as a result of his failure to cooperate with the Grievance Committee in its investigation of bounced check notices, received by them pursuant to 22 NYCRR 1300, and the Committee was authorized to institute and prosecute a disciplinary proceeding against him.

Thomas C. Sledjeski, admitted as Thomas C. Sledjeski, II (October 23, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l) (1) (i), (ii) and (iii) upon a finding that he posed an immediate threat to the public interest as a result of his failure to cooperate with the Grievance Committee, his substantial admissions under oath, and other uncontroverted evidence of professional misconduct, to wit, conduct involving, inter alia, dishonesty, deceit, fraud or misrepresentation, and the Committee was authorized to institute and prosecute a disciplinary proceeding against him.

Robert A. Bertsch, a suspended attorney (October 30, 2013)
Following a disciplinary proceeding, the respondent was found guilty of having engaged in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer, as a result of his federal conviction for misprision of a felony, to wit, securities fraud. In consideration of the financial and other hardships the respondent has endured as a result of his conviction, and the absence of remorse, he was suspended from the practice of law for a period of three years, commencing immediately.

Michael J. DeFelippo, admitted as Michael John DeFilipo (November 1, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l) (1) (i) upon a finding that he posed an immediate threat to the public interest as a result of his failure to cooperate with the Grievance Committee in its investigation of a complaint of professional misconduct against him, and the Grievance Committee was authorized to institute and prosecute a supplemental disciplinary proceeding. (By prior decision and order of the Court dated December 31, 2012, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon a petition of charges dated June 1, 2012.)

Joseph G. Scali, admitted as Joseph Girard Scali (November 25, 2013)
The respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l) (1) (i) upon a finding that he posed an immediate threat to the public interest as a result of his failure to cooperate with the Grievance Committee, and the Committee was authorized to institute and prosecute a supplemental disciplinary proceeding against him. (By prior decision and order of the Court dated November 2, 2011, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent, based upon a petition of charges dated July 22, 2011.)

Paul D. Sirignano, admitted as Paul Davis Sirignano (November 25, 2013)
On September 27, 2012, the respondent entered a plea of guilty before the Honorable Douglas M. Kraus, Judge of the New Castle Town Court, Westchester County, to attempted criminal tax fraud in the fourth degree, a class A misdemeanor, in violation of Tax Law § 1803 and Penal Law § 110. On May 9, 2013, a judgment and order of restitution was entered against the respondent in the amount of $44,019. He was immediately suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) as a result of his conviction of a “serious crime,” and the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against him, based upon the foregoing conviction.

The Following Attorneys Were Publicly Censured By Order Of The Appellate Division, Second Judicial Department:

Jeffrey Charles Daniels (September 25, 2013)
Following a disciplinary hearing, the respondent was found guilty of converting funds entrusted to him as a fiduciary for a use other than that for which they were intended; issuing a check payable to cash from his attorney trust account; and engaging in conduct adversely reflecting on his fitness to practice law by reason of the foregoing. In determining an appropriate measure of discipline to impose, the Appellate Division noted the conversion of funds was “not made with venal intent. Rather, [it was] the result of negligent oversight by the respondent of his attorney trust account…”

Anne McGrane (September 25, 2013)
On or about August 10, 2011, the respondent was convicted, upon her plea of guilty, of operating a motor vehicle under the influence of alcohol or drugs, an unclassified misdemeanor in violation of Vehicle and Traffic Law § 1192(3), based upon an incident that occurred in November 2009. Following a disciplinary hearing, the respondent was found guilty of engaging in illegal conduct that adversely reflects on her honesty, trustworthiness, or fitness as a lawyer. In determining an appropriate measure of discipline to impose, the Appellate Division considered, inter alia, the absence of charges concerning the respondent’s practice of law, the respondent’s successful completion of a rehabilitation program, and the respondent’s sincere remorse, statements that she has remained sober, and her determination not to abuse alcohol in the future. However, the respondent’s opposition notwithstanding, the Court also took into account her prior history of alcohol related offenses. In addition, in August 2011, the respondent was convicted of disorderly conduct, a violation under Penal Law § 240.20(7), and harassment in the second degree, a violation under Penal Law § 240.26.

Henry Lung (October 23, 2013)
Following a disciplinary proceeding, the respondent was found guilty of compensating a non-lawyer for recommending a client, and rewarding a non-lawyer for having made such a recommendation, resulting in employment of the respondent by a client, and sharing a legal fee with a non-lawyer. In consideration of impressive evidence of the respondent’s good moral character and his generous charitable donations, as well as his prior disciplinary history, the respondent was publicly censured.

James W. Miskowski, admitted as James William Miskowski (October 23, 2013)
By corrected order of the Supreme Court of New Jersey dated March 8, 2011, the respondent was publicly reprimanded in that state based on his violation of rule 1.15(a) of the New Jersey Rules of Professional Conduct (hereinafter the RPC) for failing to safeguard client funds, as well as rule 1.15(d) of the RPC and rule 1:21-6 of the New Jersey Court Rules for record-keeping violations. Upon the Grievance Committee’s application for reciprocal discipline pursuant to 22 NYCRR 691.3, the respondent was publicly censured in New York.

Roger A. Nehrer (December 4, 2013)
Following a disciplinary proceeding, the respondent was found guilty of engaging in conduct prejudicial to the administration of justice, which reflects adversely on his fitness as a lawyer, as a result of his failure to file biennial registration statements with the Office of Court Administration, and pay the designated fees, for the seven consecutive registration periods beginning with 1999-2000, and failing to cooperate with the Grievance Committee in its investigation of the same. He was publicly censured.

The Following Suspended Or Disbarred Attorneys Were Reinstated As Attorneys And Counselors-At-Law By Order Of The Appellate Division, Second Judicial Department:

Charles Berkman, a suspended attorney
(October 2, 2013)

Michael L. Previto, a disbarred attorney
(October 9, 2013)

Francis B. Mann, Jr., a suspended attorney
(November 13, 2013)

Michael John Wynne, a suspended attorney
(November 13, 2013)

Sansan Symone Fung, a voluntary resignor
(November 27, 2013)

Carl H. Smith, a disbarred attorney
(November 27, 2013)

© 2013 Brooklyn Bar Association. All Rights Reserved. Reprinted By Permission of the Brooklyn Bar Association.

Immigration Detainers by Joseph F. DeFelice

To what extent must a local law enforcement agency, municipality or State be required to comply with Immigration detainers?  A recent Third Circuit case indicates that there is no obligation to comply because the detainer is merely a request. Further, the Court held that under the Tenth Amendment Immigration officials cannot order State or local officials to hold and imprison suspected aliens subject to removal as the Federal government cannot command the government agencies of the State to essentially imprison persons of interest to federal officials. See Galarza v. Szalczyk, ____ F3d ____ (3d Cir. decided 3/4/14).

Mr. Galarza, who was a U.S. citizen of Hispanic heritage, was held by local law authorities in Lehigh County, Pennsylvania on an Immigration detainer. Despite his claim to U.S. citizenship the Pennsylvania authorities held him on a detainer for several days until Immigration and Custom Enforcement (ICE) officials verified the information. But for the detainer, Mr. Galarza had made bail on his criminal matter, on which he was eventually acquitted, and was held in jail for several days before his status as a U.S. citizen was clarified and he was released. He sued Lehigh County and others under 42 U.S.C. 1983 and the Federal Tort Claims Act, 28 U.S.C. 346(b). The District Court dismissed his claim holding that the State authorities were compelled to follow the detainer and the Third Circuit, as noted above, held otherwise and reversed.

The legislation for Immigration detainers can be found at 8 C.F.R. §287.7. That section reads in pertinent part as follows:
a.    Detainers in general. Detainers are issued pursuant to sections 236 and 287 of the Act and this chapter. 1. Any authorized immigration officer may at any time issue a form I-247, Immigration Detainer – Notice of Action, to any other Federal, State or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impractical or impossible.
…..
d.   Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays and holidays in order to permit assumption of custody by the Department.

One of the issues in Galarza was whether the phrase “shall maintain custody” was meant to be mandatory in nature even though the paragraph was entitled “Temporary detention at Department request.” Lehigh County argued that the word “shall” meant that it was not a request but an order. Galarza’s attorneys argued that the word “shall” meant that only if the agency decided to comply with an ICE detainer that it should hold the person no longer than 48 hours.

The Third Circuit accepted the view of Galarza and his lawyers noting that the title of the paragraph in the statute referred to “request.”  The Court cited Almendarez Torres v. United States, 523 U.S. 224, 234 (1998) which noted that a statute’s title and a section’s heading may be considered in resolving doubt about a provision’s meaning. It was also noted that the statute seemed to define detainers as a request.

Further, the Court addressed constitutional concerns and noted that the Tenth Amendment prohibits the Federal government from commanding agencies of the States to imprison persons of interest to federal officials. The Court stated that under the Tenth Amendment, all powers not explicitly conferred to the federal government are reserved to the States. Therefore, any law that commands the States or their local agencies or municipalities by directly compelling them to enact or enforce a federal regulatory program is beyond the inherent limitations of federal power. As such, any conclusion that a detainer issued by a federal agency can order State and local agencies to comply with its order is inconsistent with the Tenth Amendment.

Other Courts of Appeals have also, when commenting on Immigration detainers, referred to them as “requests.” See, e.g. Ortega v. U.S. Immigration & Customs Enforcement, 737 F3d 435, 438 (6th Cir. 2013); Liranzo v. United States, 690 F3d 78, 82 (2d Cir. 2012); United States v. Uribe-Rios, 558 F3d 347, 350 n.1 (4th Cir. 2009); United States v. Female A.F.S., 377 F3d 27, 35 (1st Cir.  2004) and Giddings v. Chandler, 979 F2d 1104, 1105 n.3 (5th Cir., 1992).

On April 18, 2014 the New York Times reported that nine counties in Oregon announced they would no longer hold people in jail on “requests” from Immigration authorities. This as a result of a U.S. magistrate in Portland holding that an immigrant’s rights had been violated when he was held in jail on such a request.

The result of these rulings may be that vigilant criminal defense attorneys may seek to obtain a client’s release from jail pending trial when the only thing holding him is the Immigration detainer. Further, civil practitioners may be able to obtain compensation for their clients who have their constitutional rights violated when they are held on these detainers without a warrant or sufficient probable cause.

* Joseph F. DeFelice practices Immigration and Criminal Law and maintains his law office in Kew Gardens.

A Message From The President by Joseph Carola, III

I am extremely honored to serve as President of the Queens County Bar Association. For 138 years, this Association has been committed to enriching the lives of its members, strengthening the relationship between the bench and the bar, serving the community and pursuing justice.

Queens County has widely been recognized as one of, if not the most diverse counties in the world. Diversity is not just measured in numbers of different races, religions or ethnicities but also a recognition and respect for diversity of thought. With over 2000 members, our Association now, more than ever, is reflective of the diversity of the county in which it is situated and the community which it serves. It is this strength in membership which affords our members opportunities to network, to find employment, to get experience and to succeed.

If you are not currently a member of the QCBA, tell me why you are not. What is it that we are doing, or perhaps not doing, that is preventing you from being a member? It is only by listening to your complaints or suggestions that we can grow as an association. If you were never a member…we want you. If you were a member in the past but not one presently…we want you back.

If you are a member, thank you. If you are reading this you are interested in the QCBA. If you are a member, you are involved in the QCBA. We need more from you however. We need you to get invested in the QCBA.

There are many reasons for joining the QCBA, ranging from “my boss made me join,” to joining for business, social or political opportunities. Whatever your reason for joining, this association is like anything else in life…you will get out of it what you put into it. Our Association offers participation in over 60 Standing and Special Committees. Our committee chairs serve as mentors to our young members and membership in our committees provides personal and professional growth. Whether you are new to bar or coming back to the bar, take advantage of the opportunities provided to you by joining and getting active in committee membership.

The QCBA Academy of Law continues to develop and offer outstanding CLE programs given by attorneys highly respected and recognized in their respective fields of practice. These programs keep our members current on ever-changing legal issues while offering CLE credits through our New York State Continuing Legal Education Board accredited program.

Our Lawyer Referral Service is an additional benefit of membership that gives our members the opportunity to build their practices with new clients referred directly from the QCBA. Lawyers can choose from 24 areas of practice to help target appropriate referrals. All referrals are forwarded on a rotating basis to ensure equal access.

Over the summer months, your Bar Association will begin preparation for the upcoming year. Our outgoing President, Joe DeFelice and his Board of Managers had an extremely productive year with accomplishments ranging from refurbishing the QCBA home, upgrading our website, introducing a mobile app (QCBA.MOBI) and recruitment of new members, particularly law students. In the upcoming year, we hope to continue our recruitment and promotion of the next generation of attorneys while also addressing the needs of the solo and small firm practitioners. We will look to address the issues of concern to our profession by offering a variety of programs focusing on practical issues such as debt management, leadership development, business development, ethics, networking, work and life balance, personal development and more.

We offer many social events during the year. These social events provide a unique opportunity to network. These events include Judiciary Night, Stated Meetings (which provide the opportunity to earn FREE CLE credits) and our Holiday Party. The first event up after the summer is our annual golf outing at the Garden City Country Club on September 8, 2014.

On behalf of the Board of Managers I would like thank you, our members, sponsors and corporate sponsors, for your continued support and look forward to hearing from you throughout the year.

Joseph Carola III, Esq.
Employees of The Corporate Law Department
State Farm Mutual Automobile Insurance Company
joe_carola@yahoo.com

Supreme Queens Alert. Is Your Note of Issue a Nullity? It Might Be. By M. Abneri and J. Pieret

Factual Situation

Many plaintiffs’ attorneys in Queens County are filing Notes of Issue with discovery outstanding. This is required by the court, often pursuant to a call from the Compliance and Settlement Part chambers. That call directs that the Note of Issue be filed or the case will be dismissed pursuant to the 90 Day Notice contained in the Compliance Conference Order.

Unlike the other Metropolitan area courts, Queens County is unique in that there is only one Compliance Conference, and parties are restricted to stipulating to extend the time to file a Note of Issue only up to the complex track date set forth by the court system, if that is even allowed or possible.   Also unique to Queens County is the fact that Notes of Issue are not supposed to be vacated no matter what discovery is outstanding. Those of us who have appeared in CMP with a timely motion to vacate the Note of Issue upon valid grounds are told to “Stip it Out.”  If that stipulation provides that the Note of Issue be vacated, that language is almost always stricken by the Referee.

The 90 Day Notice language contained in the Queens County Compliance Conference Order has been ruled a valid 90 Day Notice. Any party to the lawsuit can enforce the 90 day notice terms contained in it. (Bowman v Kunick, 35 A.D.3d 643; Bhatti v Empire Realty Associates, 101 A.D.3d 1066).

When filing the Note of Issue, many attorneys will either, 1) state in detail what the outstanding discovery remains; or 2) simply state in the Statement of Readiness that discovery is complete when it is, in fact, not complete (basically, a false certification). Neither option results in the filing of a proper Note of Issue, and either option can result in dismissal of the case.

New Law

A recent Second Department case originating from Supreme Queens illustrates the dangers in filing a Note of Issue stating that discovery is not complete.  There are older cases, discussed below, that describe the perils of falsely certifying that discovery is complete when filing a Note of Issue.

On June 5, 2013, the Second Department decided Furrukh v Forest Hills Hospital, 107 A.D.3d 668. The Court reversed Justice O’Donoghue and dismissed a medical malpractice case where the Statement of Readiness indicated that there was outstanding discovery. The Court stated:

“Pursuant to Uniform Rules for Trial Courts (22NYCRR) §202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR202.21 [a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action (see CPLR 3216[c]; Baczkowski v Collins Constr. Co.,89 NY2d 499, 503), here, the plaintiff’s certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the Certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted (see 22NYCRR 202.21 [b], [e]; Blackwell v Long Is. Hosp., 303 AD2d 615, 616; Garofalo v Mercy Hosp., 271 AD2d 642).
Having received a 90-day demand pursuant to CPLR 3216, the plaintiffs were required to file a proper note of issue or move, before the default date, to vacate the 90-day demand or to extend the 90-day period pursuant to CPLR 2004 (see Cope v Barakaat, 89 AD3d 670, 671; Gagnon v Campbell, 86 AD3d 623, 624; Blackwell v Long Is. Coll. Hosp.,303 AD2d at 616; Spilky v TRW, Inc., 225 AD2d 539, 540).” (Emphasis Supplied).

Prior Law

To further illustrate the problem involving the 90 day notice issue, the Second Department has previously stated in  Garofalo v Mercy Hosp., 271 AD2d 642,( 2nd Dept. 2000):

Contrary to the plaintiffs’ contentions, the court properly vacated the note of issue and dismissed the action. While the filing of a note of issue within 90 days precludes a court from dismissing the action here the plaintiffs’ certificate of readiness incorrectly stated that all pretrial discovery had been completed when it had not been. Because this was a material fact, the filing of the note of issue was a nullity and therefore it was properly vacated. (Citations Omitted, emphasis supplied.)

A similar result was reached in Blackwell v Long Is. Coll. Hosp.,303 AD2d 615 (2nd Dept.2003).

Nor can plaintiff avoid potential dismissal by blaming the defendant(s). In Huger v Cushman & Wakefield, 58 A.D.3d, 682 (2nd Dept., 2009) the Court stated:
“Accordingly, even if the defendants engaged in dilatory conduct in responding to discovery demands, such conduct did not constitute a reasonable excuse for plaintiffs’ failure to respond to the 90-day notice.  If the defendants were, in fact, impeding discovery, the plaintiffs were not without remedies. For example, they could have moved for permission to serve and file a conditional note of issue pursuant to 22 NYCRR 202.21(d), to compel disclosure pursuant to CPLR 3124, to strike the defendants’ answers pursuant to CPLR 3126 (3), or pursuant to CPLR 2004, prior to the default date, to extend the time to serve and file the note of issue   (Emphasis Supplied, citations omitted)

Solution?

Defendants’ attorneys are changing their motions to vacate Queens County Notes of Issue. They are beginning to include a request for dismissal pursuant to the Compliance Conference Order 90 Day Notice. The request for dismissal is based on the fact the case law cited above says that this Note of Issue is a “nullity.”

It is strongly suggested that plaintiffs’ counsel move to extend their time to file the Note of Issue as suggested in Huger (above), thereby avoiding the possibility that their clients’ cases could be dismissed.

There are other implications, such as when does the time to file a motion to strike null & void Note of Issue have to be made, if at all? If the Note is a nullity, do you really need to move to vacate it? When does the time to move for summary judgment run if the Note of Issue is a nullity? Is the case really on the trial calendar if the Note of Issue is a nullity?  Is the case really on the trial calendar even after discovery is completed post-Note? What happens if an application is made in TSP to strike the case from the trial calendar because the Note of Issue is a nullity?

Consider these issues as you get close to the deadline to file your Note of Issue and act accordingly.

Jim Pieret and Michael Abneri
THE VIEWS EXPRESSED HEREIN ARE SOLELY THOSE OF THE AUTHORS AND ARE NOT INTENDED TO REPRESENT THE VIEWS OF ANY OTHER ENTITY, ORGANIZATION OR INSTITUTION.

Summary Discharge of Mechanics’ Liens by By Thomas J. Rossi

INTRODUCTION

A mechanic’s lien is a powerful tool for workers, contractors and material suppliers who have monetary claims for work performed or materials supplied to improve real property.  Mechanics’ liens are powerful, because the lien is a cloud on title which can cause great difficulties for owners, and because mechanics’ liens are inexpensive to file, yet difficult to discharge summarily.  Basically, unless a lien is invalid on its face because the notice of lien itself does not contain the information required by New York State Lien Law Section 9, or is filed late, it cannot be discharged without litigating the underlying claim.

Most owners, or contractors whose subcontractors have filed liens, will argue to their counsel that the amount claimed to be due is not owed at all, or the amount claimed is highly exaggerated.  Therefore, they argue, the lien is invalid and should be easily and summarily dismissed.  Usually, their cry is that the contractor or subcontractor did not finish its work, did not perform its work in a timely and workmanlike manner, or the amount allegedly due is for extra work that is not extra work at all, but rather part of the base contract.

Unfortunately, those arguments do not entitle the lienee to a summary discharge of the mechanic’s lien.  These are questions of ultimate entitlement that require a decision on the merits of the claim, before the validity of the lien can be determined.  This presents a difficult problem for the owner who invariably wishes to discharge the lien as soon as possible because of an impending sale or mortgaging of the property, and to contractors who are typically contractually required to remove any lien filed by subcontractors.  It also impacts commercial tenants whose leases invariably require the discharge of mechanics’ liens arising from work in the tenant’s space.

The purpose of this article is to provide some suggestions for dealing with mechanics’ liens when representing owners, general contractors, or leasees.  We will deal only with private improvement liens which effect title to real property and not public improvement liens, which attach to the government appropriation for the improvement.

Bonding the Lien

The most commonly used means to discharge a mechanic’s lien is to “bond it off” with a surety bond.  In effect, the security for any judgment in favor of the lienor is shifted from the real property to the bond.  This is a statutory right available to all.  (Lien Law Section 19(4))

A bond in a sum equal to 110% of the lien must be filed with the County Clerk on notice to the lienor, who has, in limited instances, 10 days to object to the sufficiency of the bond.  If no objection is filed, the lien is deemed discharged without further action or proceeding.  (Lien Law Section 19(4)(a))

The difficulty that many face is the prospect of procuring the bond itself.  A contractor that regularly obtains payment and performance bonds for its work, usually has a certain amount of “bonding capacity,” and so, is able to obtain a lien bond without much difficulty.  For a property owner or contractor without bonding capacity whose subcontractor has filed a lien, things can be much more difficult, with the surety usually requiring the posting of collateral equal to at least the amount of the bond.  Additionally, bonds can be expensive with premiums ranging from two to five percent of the bond per year.  If the litigation works its way through the state court at a typical pace, two or three years worth of premiums could easily be incurred.

Summary Discharge
Resulting from Imperfect Filing

Many lienors choose to simply file their liens without assistance of counsel.  However, since 1988 this can be a very dangerous undertaking, because of the very specific filing requirements which, if not followed, are fatal to the lien.

A lien must be filed within 8 months (4 months in the case of real property improved by a one-family dwelling) from the date the last of the work or materials were supplied. (NYS Lien Law Section 10)  In addition to the filing of the lien with the County Clerk in the county where the property is located, the notice of lien must be served upon the owner by certified mail within 30 days of the filing.  (NYS Lien Law Section 11)  An affidavit of service must be filed with the County Clerk within 35 days of the filing of the notice of lien.  Id.  Additionally, if the lienor does not have a direct contractual relationship with the owner, such as a subcontractor or material supplier, the lienor must also serve the entity with whom it had a contract, the general contractor (if different), and the owner with the notice of lien and file the affidavits of service within the 35 days. (NYS Lien Law Section 11-b)

The failure to serve the notice of lien upon the appropriate parties is a fatal defect that cannot be remedied nunc pro tunc and will result in the summary discharge of the lien.  Hui’s Realty, Inc. v. Transcontinental Construction Services, Ltd., 147 Misc. 2d 1080, 559 N.Y.S.2d 114, aff’d 168 A.D.2d 302, 562 N.Y.S.2d 633 (1st Dept. 1990); Podolsky v. Narnoc Corp., 196 A.D.2d 593, 601 N.Y.S.2d 320 (2d Dept. 1993).  Accordingly, when a client is served with a notice of mechanic’s lien, it is wise to first determine if service was effectuated on the proper parties, and whether the affidavits of service were timely filed.  If they were not, the lien is invalid and subject to summary discharge through a special proceeding.

Here, a bit of strategy sometimes will go a long way.  If before the eight month time period during which a lien may be filed (four months in the case of a one-family dwelling) has expired, the notice of lien is shown to be fatally defective because of failure to properly file or serve it, the lienor is permitted to simply file a new lien, and will most probably do so properly the second time around.  However, once the time period for filing has expired, the lienor will not have an opportunity to re-file the lien.  Therefore, the better strategy is to wait to raise the issue until the time a lien can be properly filed has expired, i.e., after the 8th or 4th month from the last of the work.  The date when the last of the work or materials were supplied is easily obtained, since the invalidly filed notice of lien must include the date when the last of the work was performed or materials supplied (Lien Law Section 9).

Lien Law Section 59 Demand

A mechanic’s lien will expire, unless extended, after one year if the lienor does not commence a lien foreclosure action and file a notice of pendency before that time.  (Lien Law Section 17)  Except for property improved by a single family house, a lien can be extended for one additional year by simply filing an extension of lien.  (In the case of a single family residence, the lien can be extended only by Court Order signed and filed before expiration; see, Lien Law Sec. 17)

Of course, if the property owner waits for one year from the filing and the lien is not extended, nor a foreclosure action and notice of pendency filed, the lien will expire by operation of law (Lien Law Section 17).  Many times, however, the owner or contractor will not have the time to wait for the expiration of the lien by operation of law.

Lien Law Section 59 provides some relief from the one year or longer wait.  A Section 59 Demand served upon a lienor requires the lienor to commence its foreclosure action by a date certain not less than 30 days after service of the Demand.  If the action is not commenced, the lien is subject to summary dismissal.

It may seem as though an owner or contractor is inviting litigation, but a Lien Law Section 59 Demand can be a very useful and effective tool in lien law practice.  While the filing of a notice of lien is relatively simple and inexpensive, the commencement of a lien foreclosure action is much more complicated and expensive.

There are services available to contractors that will file a mechanic’s lien and appropriate affidavits of service for less than $300.  Accordingly, even if a lienor feels that it’s claim is marginal, it may be worth a $300 fee to simply file the lien, and hope that the owner will be desperate enough to discharge the lien because of pressure from the owner or an upcoming real estate transaction to settle the claim.

It is a completely different matter for the lienor to retain counsel to commence a lien foreclosure action.  A lien foreclosure action is a complex matter where the owner, subsequent mortgagees and others who have filed liens against the property must be identified and named as defendants (Lien Law Section 44).  Accordingly, the commencement of a lien foreclosure action will require the lienor to hire experienced counsel willing to commence the foreclosure action.  In cases where the claim is marginal or the lienor not well funded, the lienor may not timely commence the foreclosure action in response to a Section 59 Demand.

It should be noted that a lienor, even without a valid lien, still has other remedies available to him, such as a claim for breach of contract, quantum meruit and account stated.  However, without a valid lien, the cloud on title will disappear.

CONCLUSION

As indicated above, mechanics’ liens are powerful weapons that are generally difficult to dismiss without protracted litigation.  However, the above procedures can result in the summary discharge of a mechanics’ lien, thereby clearing the encumbrance on title.

*Thomas J Rossi is a partner in the law firm of Rossi & Crowley, LLP located in Douglaston, New York.  His practice is concentrated on construction and real estate litigation matters.

Trials and Tribulations: The Conclusion

In memory of Terry Molloy, Esq, 1923-2013.  The following is the last in a series of articles on the Queens Family Court.

At last, the conclusion to the history of the Family Court. It should be duly noted, as this final chapter is written in the year 2014, that the City of New York is now under the leadership of a Mayor who is a Charles Dickens fan. Mayor Bill De Blasio has repeatedly said that he sees 21st century New York City through the prism of “A Tale of Two Cities.”1

I’ve told this story without pictures, even though in the year of the fiftieth anniversary of the Family Court, clearly photos are very readily available. I wanted to be true to Dickens he didn’t have easy access to photography in the mid 1800’s and so I chose to write this imposing the same constraint upon myself.  Besides, I know, after more than a quarter century of practicing law in the Family Court, that a picture is not worth a thousand words, just as any regular in Family Court knows that blood is just not thicker than water.  Family Court is a microcosm of our culture in any decade, in any century. The study of Family Court is the ultimate study of how our civilization is functioning and how we, as a society, treat people.

I’ve chosen to focus on the people whose actions resulted in the many changes in the Family Court, including the change that ultimately resulted in a “monumental building”2 to house the Family Court, as it now exists, on Jamaica Avenue, in downtown Jamaica, New York.

One of the last people that needs to be recalled, to properly tell this story, is Claire Shulman, the Borough President of Queens County from 1986 until 2002.3

On May 31, 1995, Borough President Claire Shulman announced that the Queens Family Court would relocate from its Parsons Boulevard building to Jamaica Avenue and 153rd Street, the site at that time of a city-owned parking lot used by workers at the nearby Social Security Administration. The Daily News reported that the Borough President said the new facility should be built in two to three years.4  The Borough President proved, as she made this historic announcement, that she was well versed in her Family Court history as she declared that the “Family Court has been a disaster forever.”

Ms. Shulman provided the updated history in that the Judges of the Court had voiced their concerns to her, for more space and better conditions, for the past two years and she had intentions to finally resolve the long standing problem of the Family Court building.  The Borough President also made known in her announcement of the new building which was to come, that the City General Services Administration had wanted to renovate the existing Parsons Boulevard building and remove a small parking lot to provide additional space. The Borough President said that that plan was not “feasible.”6  She created another plan in which she found the Jamaica Avenue site on which the new building would be located. She said this provided “a good location, it’s near public transportation.” The Borough President wanted a new building, and she wanted a new building that would be able to house the needs of the Queens Family Court properly for many years to come.7

The announcement of plans for a new Family Court, in the Daily News, also relayed that this would be a move to a $78 million dollar courthouse.8  The new structure, not yet even designed in 1995, was said to double the number of courtrooms from eight to sixteen, in addition to five hearing rooms.  John Cairns, the Queens County Family Court Clerk of the Court, in 1995, was also present for the announcement of the new Court, noted that the court handled 25,000 cases a year.9

As always, there were local supporters, and local critics, of the Queens Family Court project. The main difference from the prior attempts to get a Family Court built over the past fifty years, was the support of the Borough President for a new building, and her leadership. The Daily News reported on March 28, 1999, that the construction of the new Queens Family Court Building would begin in June. It was now described as an “82 million dollar five story structure” that would bring “new life” and “more parking woes” to Jamaica Avenue. But, Tom Czarnowski, the project manager with Pei Cobb Fred/Gruzen Samton Associates, the Manhattan architecture firm that designed the new court facility pointed out, as Borough President Shulman had, that “it’s convenient to public transportation.”10

On June 24, 1999, the Queens Chronicle had a front page announcement that Borough President Claire Shulman, Mayor Rudy Giuliani, and Chief Judge Judith Kaye were on hand the prior week to break ground for the new Family Courthouse in Jamaica. Interestingly, the new Courthouse had now become an eighty five million dollar “high tech facility.” Reasons were never given in the press for the eight million dollar increase. Four years had passed since the 1995 announcement to the 1999 ground breaking. It was reported that the new building was to have expanded room for Courtrooms, Judges Chambers, agency office spaces, and on site supervised visitation and daycare.11

Shulman said “This new state of the art facility will provide a welcoming environment for families, and will be more sensitive to the needs of those who use and work in the courthouse every day.”12 Carlisle Towery, the Executive Director of the Greater Jamaica Development Corporation, said he was pleased that the Courthouse would remain in Jamaica as it would be a “boost” to the overall revitalization of Jamaica. In attendance at the ground breaking ceremony was the Queens County Bar Association President Steven Wimpfheimer who called the Family Court “a wonderful thing for the county and people of Queens in need of a Family Court.”13

The Queens Chronicle also reported that The New York State Dormitory Authority’s Metropolitan Operations was overseeing the project which was also to include a 217 car garage at Archer Avenue and 150th Street. The new Jamaica Family Court project was reported to be part of a 2.5 billion dollar city wide program, the Court Facilities Master Plan, which was including new Family Courts in Brooklyn, Queens and Staten Island as well as renovation of some other courts in the city. There was a twenty five million dollar stipend to renovate the State Supreme Courthouse on Sutphin Boulevard in Jamaica.14

The 85 million dollars for the new Queens Family Court was to be provided by the City of New York, which would be financed with bonds issued by the Dormitory Authority of the State of New York. The State of New York was to provide an aid subsidy package for the interest the bonds accrue. The Architectural firms of Pei Cobb Freed and Associates and Gruzen Samton designers of the Family Court project, were recognized by the Art Commission of the City of New York for its innovative design of the planned new 30,000 square foot courthouse, than expected to open by the fall of 2001.15

The new Queens Family Court went up with the start of the 21st century, as part of a “work under way in each of the boroughs” which was “inspired by a 13 year old state law” that required ‘the city to evaluate its courthouses and repair or expand them as necessary to ensure that they are “suitable and sufficient.” The New York Times reported in December, 2000 that the “push” to fulfill this mandate started before Mayor Guiliani, but it was in the final year of his tenure, that the “construction campaign” reached its “full frenzy.”16  In the County of Queens, the “push” to accomplish what the 13 year old law required had come from Borough President Shulman.

The Times further reported that Steven Fishner, the Mayor’s Criminal Justice Coordinator, claimed this was “a public works program on the scale the City of New York has not seen since the administration of Fiorello La Guardia and the Works Progress Administration” — he also added with obvious pride “It will be Mayor Giuliani’s Legacy.”17

The review here of the documentary evidence available from that time, however, shows that the structure on Jamaica Avenue now housing the Queens County Family Court is the legacy of former Borough President Claire Shulman.  Dickens would be proud of the Shulman record on the Queens Family Court. But, he might be curious as to why her efforts in bringing about the Family Court building on Jamaica Avenue have not yet received any kind of lasting recognition.

The New York Times reported about December 5, 2000 that the “rising demands on the court system, particularly the Family Court, to serve as both arbiter of justice and social services supermarket has forced space requests to make room for everything from drug treatment facilities to offices for counselors who tend to the needs of abused or neglected children.” Jonathan Lippman, the Chief Administrative Judge for the state’s court system was quoted to say that “at a time when there are so many parts of our lives that are chaotic, you cannot afford to have a chaotic court system.”18

The architectural plans, which got underway at the start of the 21st century and included the new Queens Family Court, were in stark contrast to the plans presented in the last courthouse construction boom, in New York City, back in the 1930’s.  There was no longer to be an adherence to the “grand marble entrance stairwells, towering neo-Classical style columns and robed sculptures holding staffs and scales to represent the figures of authority and justice” of the yesteryear of seventy years ago.19  The new court would represent the new normal — not the world in which Mr. Bumble told the Judge that “the Law is a Ass.”20  The 21st century of New York City is not Dickens’ England, nor would it want to be, nor should it seek to look like a scene from Dickens in any way.

The new courts, including the new Family Court on Jamaica Avenue, were designed with “lots of exterior glass, open courtyards and natural light.” Ian Bader, a partner at Pei Cobb Freed and Partners, the designer of the Family Court at 151-20 Jamaica Avenue, was quoted by the Times to explain that the new Courthouse “is different from the temples of justice of the past, which are set apart and somewhat aloof.”21

Mr. Bader spoke of the new glass and brick plan for Queens Family Court and explained that the Court was to be situated around a large glass enclosed atrium, which was planned to have a translucent sculpture by the German-American artist Ursula von Rydingsvard suspended from the ceiling. The vision of his firm included the court structure opening out onto the grassy expanse of Rufus King Park.22

According to a 1998 study of city capital demands and allocated financing by the city comptroller’s office, It was estimated at the turn of the 21st century that the city of New York had more than 90 billion in estimated outstanding infrastructure needs — namely, schools, subway cars, fire stations and libraries. It was only the Court system that was given enough money to satisfy all its identified physical needs.23   There were those who questioned the city’s “record infusion of money into court construction” — though no one said the court projects were not necessary.

Glenn Pasanen, director of City Project, a nonprofit budget monitoring organization, citing a 1998 study by Comptroller Alan G. Hevisi, said that “It makes no sense to satisfy 100 percent of court capital needs when you are satisfying less than half of educational needs.” The Hevisi study said that schools’ construction needs were only met by about 44 percent. “It’s yet another signal that the Mayor is more interested in criminal justice rather than investing in schools and kids where there is a societal and economic return.”24

On the other hand, there were others who noted even more money could be spent on the new state courts. Guiliani’s criminal justice coordinator, noted that “It ain’t no federal courthouse” referring to the 330 Jay Street courthouse project in Brooklyn, comparing it to the Federal Courthouse at Foley Square which features “exotic wood paneling, private kitchens and showers.”25

In response to criticism the money could have been spent on schools, Judge Jonathan Lippman said, “if you don’t have a justice system that works, you don’t have anything in these other areas, whether it be schools or social services… without a justice system that is respected, society doesn’t function.”26  I’d venture to guess that Dickens would agree. The law must not be a ass.

There was no question as to the need to improve the Courthouse facility, however, there were great concerns as to where those needing to access justice, might park their cars. A suggested benefit of this so called “problem” for the community came from Janet Barkan, the Executive Director of the Jamaica Center Business Improvement Association, “Hopefully more court employees will be shopping in the stores now that they’re going to be on the avenue. Parking is difficult.”  John Cairns, the Clerk of the Queens Family Court, in 1999, agreed that parking “is an obvious concern.”27

Aside from the building construction, judicial pay and parking concerns, the many other issues, identified by Dickens, still live on and are still chronicled in the 21st century Family court.
The New York City Family Court was reported to have 47 Judges and handled 245,000 cases a year in 2012.28  Judge Simeon Golar  whose critical writing on the court was profiled in an earlier installment in this series, passed away in 2013.30  I suspect he still would not approve of this math — that’s well over 5,000 cases per judge per year. An awesome number from any perspective, in any century or decade.

So what is to be expected in the next fifty years? Dickens said we were going too fast and missing something –Simeon Golar said the same thing, in another way, in another century. Are we still missing something? There is a new building in which to discuss family problems; unfortunately, many people still have many family problems which still need to be addressed by a court system.

Laura Duncan, an attorney waiting in a Queens Family Court first floor intake courtroom, for a case to be called, was asked by a New York Times reporter, in 2012, for her views of the festivities in the Courtroom. Ms. Duncan was quoted to say, in the fiftieth year of the Family Court, that “this is real life.”31

That was Dickens goal — to portray the real life of Dickens’ England. We are still chronicling that real life in the Family Court of New York City, and probably will continue to do so as we seek solutions to the problems that always come with real life. The problems are not new, but in a fair society, we are always seeking new solutions. The pursuit of those solutions now continues — with a new Mayor who appears to know that the problems of Dickens’ England continue in twenty-first century New York City.

Mark www.huffingtonpost.com, “Bill De Blasio sworn in as New York Mayor, January 1, 2014
2 reference to quote by Martha Zelman, Esq., President of the Queens County Women’s Bar Association in 1964, as reported in the QCBA Bulletin, Trials and Tribulations, footnote 19, Volume 76, no.2, November 2012
3 en.wikipedia.org  Claire Shulman, January, 2014
4 Serant, Claire, Court’s Moving, Daily News, June 1, 1995.
5 id.
6 id.
7 id.
8 Serant, 1995, id.
9 id.
10 Serant, Claire, “New Courthouse’s Caveat”, Queens, Your Neighborhood, The Daily News, Sunday March 28, 1999
11 Salermi, Jim, “State of the Art Facility to Replace Outmoded Building,” The Queens Chronicle, June 24, 1999
12 Salermi, id.
13 id.
14 Salermi, id.
15 Selemi, id.
16 lipton, eric, “halls of justice going up all over; new york city nears a peak in its courthouse building boom, The New York Times, December 5, 2000.
17 id.
18 id.
19 id.
20 this quote is more fully described in the first article in this series, QCBA Bulletin, vol 76, no. 1, October 2012, “Trials and Tribulations.”
21 Lipton, Eric, Supra.
22 id.
23 lipton, id.
24 lipton, id.
25 lipton, id.
26 id.
27 Serant, 1999, id.
28 www.thenewyorktimes.com, Glaberson, William, “For Top Judge, Tough Lessons on Family Court Bench, March 28, 2012.
29 QCBA Bulletin,vol 76, No 5, April 2013, “Trials and Tribulations.”
30 www.thenewyorktimes.com, “Simeon Golar, Who Fought for Public Housing, Dies at 84, August 13, 2013.
31 Glaberson, Supra.

What Happened to the Attorney-Client Privileged Communication And What You Should Do About It. By Paul E. Kerson

Once upon a time, in a democratic country called the United States, in a State called New York, there were seven people in one’s life one could count on to keep  secrets: spouse, attorney, medical professional, clergy member, psychologist, social worker and rape crisis counselor. Library records were also to be kept confidential.

New York guarantees this to every one of our citizens, residents and visitors alike in Civil Practice Law and Rules (CPLR) Sections 4502, 4503, 4504, 4505, 4507, 4508, 4509 and 4510.  These statutes are a bulwark of freedom. It means a person can unburden himself or herself and not fear prosecution, embarrassment or intimidation. These statutes are a key factor in the physical and mental health of our people.

Washington, DC has the same attorney-client privilege set forth in the DC Rules of Professional Conduct, Rule 1.6.

Now comes something called the “National Security Agency,” a Federal Government entity paid for with our tax dollars that has clearly been designed to make us feel as insecure as possible.

The Feb. 15, 2014 edition of The New York Times reported the following article by reporters James Risen and Laura Poitras, “Spying by N.S.A. Ally Entangled U.S. Law Firm”. It seems that the Australian counterpart of the NSA, the Australian Signals Directorate (ASD), told SUSLOC (the Special US Liaison Office Canberra of the NSA) that it had intercepted communications between the Indonesian Government and its American law firm, Mayer Brown of Chicago, Ill.

It seems that the Indonesian Government is involved in a trade dispute with the US Government over trade in cigarettes and shrimp. At the World Trade Organization (WTO) in Geneva, Switzerland, the Indonesian Government is protesting a US Government ban on the sale of imported Indonesian clove cigarettes. The US Government, in turn, is protesting that Indonesia is selling shrimp at below-market prices.

Indonesia retained the Washington, DC office of Mayer, Brown to represent its interests adverse to those of the US Government at the WTO.

The Times interviewed Duane Layton, Esq. and Matthew McConkey, Esq. of the Washington office of Mayer Brown. Neither had any concrete evidence that they had been spied on by the Australian ASD or the US NSA. However, upon being informed that this was the case by The Times, Mr. Layton said, “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”

The Times found out about the US Government’s blatant violation of the DC Rules of Professional Conduct, Rule 1.6 and New York CPLR Section 4503 because of the allegedly “unlawful” revelations of Edward Snowden, a former NSA contractor. Snowden made a lot of NSA material public, and is now a “fugitive”.

So, the wise lawyer who wishes to uphold the integrity of our profession against an apparent policy of blatant US Government interference must now adopt the following stringent safeguards:

1. Do not discuss any sensitive matter with any client over the telephone or by fax.

2.  Do not put any confidential client information in any e-mail whatsoever.

3. Use sealed US Mail whenever a few days waiting time is permissible. (It almost always is. There is very little we do that absolutely must be delivered today. The rush for immediacy is because people have been reduced to the level of infants by “technology”.  It is still a felony for any Government agent or anyone at all to open U.S. Mail not addressed to them. See 18 U.S. Code Sec. 1708).

4. If the confidential communication must be there immediately, hire a messenger service you can trust.

5. If the confidential communication must be there tomorrow, use US Mail Next Day Delivery, Federal Express, UPS or other sealed overnight carrier.

6. Best of all, when discussing anything sensitive, have the client come into your office and close the door.

These measures must be taken at once. The Law Itself will not help us. The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) permits the Federal Government to acquire “foreign” intelligence information by authorizing surveillance of individuals who are not “U.S. persons” who are reasonably believed to be “outside the U.S.” See 50 U.S. Code Sec. 1881a.

But what happens when such surveillance picks up attorney-client communications from inside the U.S. by American lawyers? The U.S. Supreme Court ruled 5-4 that this is perfectly okay. See Clapper v. Amnesty International, 133 S.Ct. 1138 (2013).  In Clapper, the U.S. Supreme Court reversed the U.S. Court of Appeals, 2nd Circuit, here in New York. See 638 F. 3d 118 (2d Cir. 2011).

Our Second Circuit gave us some hope:

“The plaintiffs’ uncontroverted testimony that they fear their sensitive electronic communications being monitored and they have taken costly measures to avoid being monitored – because we deem that fear and those actions to be reasonable under the circumstances of this case – establishes injuries in fact that we find are causally linked to the allegedly unconstitutional FAA. We therefore find that plaintiffs have standing to challenge the constitutionality of the FAA in federal court.” See 638 F. 3d at 150.

Sadly, the U.S. Supreme Court took this hope away 5-4.

What did Mayer Brown do?  The whole world now knows they allowed their most sensitive attorney-client communications to be monitored by the Federal Government. This is not exactly good for business.

Well, a firm of that size is not without resources. Two days after The Times broke this story of Federal Government trampling on the attorney-client privilege, Mayer Brown had this to say in the Feb. 17, 2014 edition of The Chicago Tribune:

“Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.” (See Kim Geiger, “Chicago-based law firm responds to report of NSA spying”. The Chicago Tribune,  Feb. 17, 2014

We in Queens County, New York have the most international clientele in the world. People reside in our county who were born in virtually every other country. And many have significant dealings in the “old country,” all 196 of them (unless Taiwan does not count, in which case there are 195).  They come to Queens County because we at Sutphin Boulevard (the Capital of the Universe) provide them with outstanding legal representation for whatever dispute they might find themselves in (among other reasons, but surely it is not the scenery).

U.S. Supreme Court to the contrary notwithstanding, we must redouble our efforts to live by and enforce CPLR Sec. 4503, the Attorney-Client privilege. Please follow what we should now call Duane Layton’s 6 Rules for the Protection of the Attorney-Client Privilege listed above. After all, as the first attorney whose confidential communications were revealed as hacked by the Federal Government, we are all well advised to follow his assessment of the condition we are now in due to Government abuse of “technology”: “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”

Family Law Annual Review by Michael & David Dikman

MAINTENANCE LAWS

In 2010 we reviewed the provisions of the then new DRL § 236B, sections 5-a & 6-a, establishing temporary maintenance guidelines. The N.Y.S. Law Revision Commission was directed to:

Review and assess the economic consequences of divorce on parties; Review the maintenance laws and their administration to determine their impact on post marital economic disparities and the laws’ effectiveness in achieving the state’s goals; and
Recommend legislation deemed necessary to achieve those goals.

A preliminary report to the Legislature & Governor was to be made no later than 9 months from the effective date with a final report to be rendered by December 31, 2011. There was a preliminary report, but that was delayed until May 11, 2011 and did nothing more than review the provisions and history, various problems and positions involved. There was no recommendation for any legislation. The final report date (December 31, 2011) came, went and was extended several times. Last year at this writing we were still awaiting the final report. In this column we had said:

“the myriad of different, relevant facts in each case, and the application    of a “reality test” (actually computing what disposable income will be left for each spouse upon application of the guidelines) have convinced a number of judges that the temporary maintenance guidelines did in fact result in unjust or inappropriate awards, which they refused to make. More and more cases continue to be reported, where the judges are “deviating,” and in different ways and upon different analyses. The result is that although it is taking the judges far more time to construct their decisions, they are as disparate and unpredictable as they were before the statute became effective. The statute has been criticized inasmuch as the application of the guidelines, based upon an automatic, mathematical calculation, basically creates a shift in resources, rather than the prior goal of tiding over the more needy party.”

We commented that the cases regarding temporary maintenance , were very “fact intensive,”  and that it would be hard to find two cases presenting precisely the same facts , relative to the parties’ incomes, assets, needs, ages, health, marriage duration, number and ages of children, type of residence, or whether the parties are still residing together, among others. Also, in view of the vastly varying    fact patterns and the substantial number of matrimonial judges making decisions throughout the State, we opined that the value of any one Supreme Court decision, as a precedent, will be minimal, since not binding upon judges of coordinate jurisdiction. We hoped that “by next year we should have some guidance from the Appellate Division.” But we still don’t have too much. While there have been a number of carefully considered and well written decisions on this topic, during the last three years, there is still a substantial amount of uncertainty as to what any particular court will decide in any one case. The Appellate Divisions have sent cases back when decisions have not sufficiently addressed and discussed either what the “presumptive award” would be by a strict application of the guidelines or the factors relied upon to deviate therefrom.

A full discussion of the substantive and procedural requirements is found in GONCALVES v. GONCALVES, 105 A.D. 3d 901, 963 N.Y.S. 2d 686 (App. Div., 2nd Dept.). In LENOX v. WEBERMAN, 103 A.D. 3d 550, 960 N.Y.S. 2d 89 (App. Div. 1st Dept.) the trial court was said to have explained its deviation from the “presumptive amount,” based upon the 19 statutory factors, as a result of which was the affirmance of a $38,000 a month award. In an obviously much less monied case the same court affirmed a $500 temporary maintenance award to the husband for six months in WOODFORD v. WOODFORD, 100 A.D. 3d 875, 955 N.Y.S. 2d 355 (1st Dept.). Again in TAWIL v. TAWIL, 100 A.D. 3d 520, 953 N.Y.S. 2d 856 (1st Dept.) the lower court award of $12,457.25 per month as temporary maintenance was found to have been properly determined.

However, numerous Appellate Division decisions, including those above, have omitted a sufficient statement of facts to provide some value as precedent s. The long-awaited final Law Revision Commission report was issued on May 15, 2013. It was generally believed that the Commission would not recommend a wholesale elimination of the maintenance guideline concept, notwithstanding many lawyer groups’ belief that is what should be done. It should be remembered that the original law, while drafted to relate to maintenance awards at the end of cases, was so problematic that it was hastily revised to speak only in terms of temporary maintenance. The revision was not done with what might be called substantial care, and a number of provisions that obviously could or should not relate to temporary awards remained in the language of the statute … for example a consideration of the equitable distribution award, which obviously could not be known when a temporary maintenance order was being drafted.

At the outset, the final report acknowledges that two primary desires: a) individualized treatment for each marriage and b) predictability and consistency of awards, are difficult to reconcile “because those goals point policy makers in different directions.” The Commission attempted to strike some type of balance between those two approaches. Its conclusion was that we had to take into account the differences between cases with limited assets and income and those involving substantial assets and income. In fact, the commission noted that in the limited money cases it is “less likely that either party is represented by counsel”  whereas in substantial money cases “the court has more variables to consider, more options in crafting relief, and both parties are more likely to have counsel.” We would wager that nobody on the Commission, who adopted that comment about less monied litigants not having counsel, ever practiced in Queens County! We doubt there is any matrimonial lawyer in Queens who has not been retained in cases involving very limited financial circumstances from time to time.

In any event, the major change recommended by the Commission, in line with its starting premise, was to start with a formula for combined income at or below $136,000, a level it said reflected the income of a majority of New Yorkers, and which was consistent with the amount now effective in child support guideline computations. Where the combined income exceeds $136,000 the court would have more freedom and discretion to apply a set of statutory factors to the excess. It would also retain the flexibility to deviate from the formula (above or below the $136,000) were found to be unjust or inappropriate. There was no recommended change in the mathematics of the formula set forth in the current law for computing temporary maintenance, and that same formula was retained in the computation of permanent maintenance. In both instances the requirement that deviations based upon the statutory factors had to be explained in the decision was included. The recommendations were to apply to both temporary and permanent orders. In temporary orders the court was supposed to “allocate the responsibilities of each party for the family’s current expenses during the pendency of the action.” The temporary award would generally have a duration matching that of the divorce proceeding, but should be limited so as not to exceed the length of a short term marriage.

In the report, if any recommendation received the widespread approval of the matrimonial bar it was the statement that “Based on a widespread consensus ” it was recommended that “one party ‘s ‘increased earning capacity’ no longer be considered as a marital asset in equitable distribution under section 326B (5).” The report acknowledges that this enhanced earnings concept (distributing the established value of licenses and degrees, initiated not by statute but by the landmark Court of Appeals decision in O ‘BRIEN v. O’BRIEN, 66 NY 2d 576, 498 NYS 2d 743) “created much dissatisfaction and litigation because of the asset’s intangible nature, the speculative nature of its ‘value’ as well as the costs associated with valuations, and problems of double counting increased earnings in awards of post-divorce income and child support.” The recommendation was that any contribution to the career of one party by the other should only be factored into the maintenance considerations.

As to the duration of maintenance awards, various factors were set forth, which are essentially those considered and discussed in the case and statutory law before the more recent maintenance legislation (e.g. length or marriage, time necessary for the needy spouse to become self-supporting, normal retirement age, available retirement benefits, health care barriers, child care responsibilities and age). The recommendations were to be the same for orders out of both the Supreme and Family Courts. They did not retain the much criticized former provision that remarriage would not necessarily terminate maintenance.

But, of course, this report is only a recommendation, and to what extent it may find its way into future legislation is quite another story. The consensus of opinion we have heard is that there will, indeed be some legislation in this area, presumably before the end of this session. But the bills under consideration vary widely, some adopting the reduction in the “cap” from $500,000 to $136,000, others not, and still others establishing amounts somewhere in between.

So, for the near future, prior to any corrective or modifying legislation we are still stuck in the absurd position where:

a) The court is required to consider guidelines for child support at the end of cases, in the final judgment, but not necessarily in making temporary awards;

b) The court is required to consider guidelines for maintenance in making temporary awards, but not at the end of cases, in the final judgment; and

c) When one works out the math in cases where the court might opt (as is within its discretion) to use the current guidelines for both child support and maintenance, after income tax liabilities , more likely than not the payor spouse will wind up with less disposable income than the payee. One may ask: How did a group of legislators, the vast majority of whom are attorneys, ever allow us to get into this situation. We regret to opine that the answer is a primary concern for “politics” rather than good law or the best interests of the public.

PRELIMINARY CONFERENCES

Last year we reported on the change that was going to be made starting in January, 2013, regarding the conduct of Preliminary Conferences in Queens County.

Referee Lisa J. Friederwitzer was assigned the task of presiding over a new, centralized Matrimonial P.C. Part, which was to conduct all P.C.’s which have not previously been scheduled before the matrimonial judges, thus freeing their time and hopefully, streamlining and making the P.C. process more meaningful and productive. It was expected that we lawyers refrain from coming to the P.C. ‘s to more or less play a waiting game, not having yet completed Net Worth Statements or produced basic financial records, and expecting to have a schedule imposed at the P.C., which will only require later action. The intent and expectation was that the P.C. ‘s, which would be able to be scheduled sooner , and with staggered appearance times, will result in early agreements or orders for various issues, including support, parental access, etc. The court is not limited by the absence of any underlying motion, although it will be expected that pleadings are served, seeking various forms of relief. Temporary orders were to be made to afford parties relief or partial relief in various areas, without long waiting times. The result is that in cases where the amount of the parties’ income is relatively clear and where sufficient documentation is presented, temporary orders may well be issued at the P.C., absent formal motions.

Requests for adjournments must be made only by E -Mail to QSMATPC@courts.state.ny.us.

In practice, Preliminary Conferences are scheduled the first time a motion is made. As a result, where a case starts off with an early motion, sometimes not involving financial matters, parties are not all coming in with Net Worth Statements or other financial documents. But the conferences are being handled expeditiously, and in cases where financials are not exchanged, time limits are fixed and cases are moving along. At this point we have heard nothing negative about the process. Quite the contrary, the P.C.’s are scheduled without much delay, handled competently and the judges are spared that one component of their quite over-burdened responsibilities (e.g. conferences, motions, Order to Show Cause submissions, hearings, trials, decisions and orders). There is no complaint about Queens County matrimonial practice more often heard than how long it takes to get a decision, a trial, a next conference date, etc. However, we are hard pressed to be able to identify any county in which the number of matrimonial cases assigned, per judge is higher than in Queens. Our three judges are not out playing golf or lounging around. They are working full time, as are their staffs. But you can only do so much in a day and can only deal with one case at a time. As has been the case for years, we need more judges handling our family law cases, and they are hard to come by given the financial and physical space limitations under which our court is forced to operate. The same situation applies to the number of matrimonial clerks we have, the shortage of which is a large factor in the extremely long time it takes to have judgments or submitted orders signed and entered. Who knows – perhaps by next year’s article we might at least have another elevator in operation!