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!

Editor’s Note. A Member Way Ahead of His Time – Paul R. Silverstein (1905-1964) By Paul E. Kerson

Making new law takes vision, courage, and stamina; especially so when the law relates to civil rights. Our late member Paul R. Silverstein (1905-1965) was such an attorney. He was the driving force behind Kemp v. Rubin, 188 Misc. 310, 69 N.Y.S. 2d 680 (Queens County Sup. Ct. 1946), affd 273 A.D. 798, 75 N.Y.S. 2d 768 (2d Dept. 1947), revd. 298 N.Y. 590 (1948).

In Kemp v. Rubin, New York State’s Court of Appeals struck down restrictive covenants in housing in New York on July 16, 1948.  The United States Supreme Court reached a similar conclusion in Shelley v. Kramer, 68 S. Ct. 836 on May 3, 1948, only two months earlier.

But Paul Silverstein started this uphill struggle to change our society two years before, in 1946.  Why? To find out, I spoke at length with his daughter, Susan Sandler; his son Dr. Samuel Silverstein; and his law partners, Herb Balin and Lou Soloway.

For most of his life, Paul R. Silverstein maintained a law practice in downtown Jamaica specializing in real estate law.  He represented housing and shopping mall developers, and engaged in some home building himself.  He was not a political or civil rights activist.  But he believed in the American dream – that anyone and everyone should be able to succeed through hard work.

In 1946, their service in World War II, and the nation’s recognition of the horrors of the Holocaust not withstanding, African-Americans were left out of this dream. A housing boom was ongoing to serve returning United States service personnel. Most housing in Queens County, as in the rest of the United States, still was segregated by race. Covenants restricting sales of new houses to African-Americans were routine even in federally sponsored housing projects.

Paul Silverstein commenced building houses for the African-American market in St. Albans. He was threatened by officers of local banks. They promised to “put him out of business” if he continued to try to expand the African-American population of Queens County in this way.

His daughter Susan, his son Sam, and his former law partners Herb Balin and Lou Soloway all agreed that the late Paul Silverstein was not a religious man.  However, Paul, the eldest son of first generation immigrants, had a deep respect for the law, and the precepts of our Constitution. As an attorney whose practice centered on real estate, he was all-too-well aware of the way restrictive covenants in housing thwarted the Constitution’s promise of equal rights for all. To Paul Silverstein, restrictive covenants were just wrong, wrong, wrong as a matter of “straight forward principle.”

What drove Paul Silverstein to challenge New York law concerning restrictive covenants in housing? Neither his children nor his law partners can say for sure. They believe the most likely reasons were his deeply ingrained sense of fairness, his respect for the spirit of the law, and his early life experiences. As a teenager, he caddied at golf courses with boys of many racial, religious, and ethnic origins. He was a good pianist, and played with musicians from diverse backgrounds in Brooklyn, first in silent movies and later in social clubs.

As a lawyer in Jamaica, when he was the first Jewish person invited to join a previously restricted businessmen’s club, he made his joining conditional on the club’s removing its membership restrictions. He refused to join a Long Island golf club that restricted its membership on racial and religious grounds.  (Note – Paul was an excellent golfer and won the first Queens County Bar Association golf trophy.)

Paul first met Sophie Rubin in 1946. Rubin had contracted to sell her St. Albans house to Samuel Richardson, an African-American. Her neighbor, Harold Kemp, sued to enforce the restrictive covenant in all the local deeds.

Paul took Rubin’s case.  Together with his then-associate, Irving Schuh, he lined up a remarkable coalition of non-sectarian (The American Civil Liberties Union, The National Lawyers Guild, The Greater New York Council of Industrial Organizations, The City Wide Citizens Committee on Harlem, and The Social Action Committee of New York City), and sectarian organizations (The American Jewish Congress, the Anti-Defamation League of B’nai B’rith, The Congregational Church Association, Inc., The Methodist Federation for Social Services), as amici curiae. This was a major achievement, and evidence of Paul’s commitment to end restrictive covenants in housing in New York State. In later years, many of these organizations were among the Civil Rights Movement’s strongest supporters.

Due to the then prevailing legal precedents, he lost in the Queens County Supreme Court even though presiding Justice Livingston’s opinion quoted Supreme Court Justice Murphy in Hirabayahsi v. United States, noting: “Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war….. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws.” Justice Livingston went on to add, “At the same time, however, and regardless of what its sentiments may be, this court is constrained to follow precedent and govern itself in accordance with what it considers to be the prevailing law.”

Undeterred, Paul appealed the case, but lost again in the Appellate Division, Second Department in 1947. Finally in May, 1948, the U.S. Supreme Court reversed itself, finding restrictive covenants unconstitutional (Shelley vs. Kraemer 334 U.S. 1, 68 Sup. Ct. 836, 92, L. Ed. 568 (1796). Two months later, he prevailed in the New York State Court of Appeals (Kemp v. Rubin, revd. 298 N.Y. 590 (1948).

The Shelley and Kemp cases were dispositive. Throughout the nation, state courts cited both Shelley and Kemp in refusing to enforce racially based restrictive covenants.  In the decade that followed, New York enacted the nation’s first state-sponsored Human Rights Act. Its housing section was based directly on Kemp v. Rubin. But it took another twenty years before the Civil Rights Act of 1968 declared it unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”

We in the Queens County Bar Association are proud of our association with the New York State Court of Appeals decision in Kemp v. Rubin, 298 N.Y. 590 (1948), a testament to the decency, humanity, bravery and courage of our late member, Paul R. Silverstein.

Changing Your Name in New York: A Guide for Attorneys and the Self-Represented – Part III By Gerald Lebovits and Taneem Kabir

Gerald Lebovits is a New York City Civil Court judge and an adjunct professor at Columbia, Fordham, and NYU law schools. Taneem Kabir, an associate attorney at DeToffol & Associates, is admitted to practice in New Jersey and before the United States Patent and Trademark Office. For their research help on all three parts of this article, the authors thank law students Aviva S. Kravitz and Todd M. Neuhaus from Cardozo School of Law and Natalie J. Puzio, an undergraduate at Villanova University.

This third part of our three-part article on New York’s name change laws concludes with where to file, in which court to file, and what happens after you file name-change petitions as well as publication requirements.

IV.        Where to File

If you are a New York City resident, you may file your petition form and supporting evidence in the clerk’s office in the New York City Civil Court or in the Supreme Court.

Inside New York City, you may file in any county (borough) of the New York City Civil Court if you are a New York City resident. But if you file in a county in Civil Court other than the one in which you reside, you must publish your name-change notice in a newspaper with City-wide distribution and not in a local newspaper.

New York City Civil Court petitions go to the court’s Special Term for judicial approval.

You may file your petition and supporting evidence in the Supreme Court of the county in which you reside, whether you live inside or outside New York City.1 As we explained above, Civil Rights Law § 60 authorizes name-change petitioners to file petitions in County Court — a court outside New York City that hears felony cases — but every County Court we contacted directed us to the county Supreme Court to file a name-change petition. Bring an extra copy of all your materials with you in case the court clerk needs extras.

V.        What Happens After You File

After you file your petition, the court clerk will notify you of a name-change-hearing date — usually within 90 days of your filing date. At that hearing, the court will examine your petition, including the reasons you offer for changing your name.2 At this hearing, the judge might ask you a few questions about your name change. Answer candidly. If the judge rejects your name change request, review the judge’s explanation, which will be articulated in writing.
A judge might reject your name-change petition on a variety of grounds, such as if your name change will result in misrepresentation or fraud. In Matter of B., the court rejected a divorcee’s name-change petition to change her name to match the last name of her lover, a married man, because doing so would condone her ongoing act of adultery.3

Another reason for rejection is if your name will cause confusion. In Matter of Greenfield, the petitioner wanted to change his Irish-sounding name (Kelly), which he had petitioned to be changed from “Greenfield,” his earlier Jewish-sounding name, seven years earlier.4 The court did not allow him to change his name yet again to “Anders,” a Protestant-sounding name, just so he could travel to the Middle East on vacation.

If you are a transgendered individual and you want to change your name to correspond with the gender with which you identify, you are not required to present medical evidence to support your proposed name change.

New York name-change law has progressed significantly in the last twenty years. In 1992, in Matter of Anonymous, the court denied the petition to change a man’s name from an obviously male name to an obviously female name merely “to avoid embarrassing situations due to [his] sexual preference and physical well being” because the petitioner did not corroborate his claim by competent medical and psychological evaluation, including whether he was a transvestite or transsexual and, if he was a transsexual, whether he had undergone a sex-change operation.5

In 1995, in Matter of Rivera, the court granted the petitioner’s name change from a male-gendered name to a female-gendered name even though there was no a claim that he had undergone a sex-change operation.6 But the court granted his petition on condition that he not use or rely on his name-change court order as proof that his gender had been changed anatomically where the prevailing psychiatric evaluation was that he was a “transsexual whose behavior, mannerisms, and appearance” were feminine and that he was “confident about his sexuality and choice of female gender.”

Appellate authority from 2009 now holds that there is no “additional requirement that a transgendered petitioner present medical substantiation for the desired name change.”7 In granting the petitioner’s name-change application, the Appellate Term, First Department, in Matter of Winn-Ritzenberg added that it did not need to “address the separate legal issue of whether petitioner has changed gender for legal purposes.”8

Sometimes petitioners’ wishes to change their names overlap with other well-recognized rights. In Matter of Nawadiuko, a family petitioned to change its last name from Nwadiuko to “ChristIsKing.” The court denied the petitioners’ name-change application, reasoning that although the petitioners’ proposed name “has [a] personal religious meaning to them,” ChristIsKing “would require third parties to make a religious statement when just calling petitioners’ names.”9

On the other hand, the Appellate Division, Third Department, in Matter of Madison, reversed the denial of an inmate’s petition to change his name to Diallo Rafik Asar Madison in compliance with his newfound Islamic faith.10

If you are thinking about changing your name to a single name, you will be disappointed to learn that doing so is unlawful. In Matter of Douglas, the court denied the petitioner’s request to change his name to “Arindam” because of his contact with the teachings of a spiritual and philosophical leader in India. The court found that “judicial approval of the use of a single name would be a retrogression to antiquity, cause havoc and chaos” in properly identifying and locating persons and official records, and “lead to all kinds of complications on the economy,” which depends upon being able to track down debtors.11

Your name-change petition may not be based on an “unworthy motive,” and your new name may not be “bizarre, unduly lengthy, ridiculous or offensive to common decency and good taste.”12 In Matter of Jama, a 1966 case perhaps no longer in keeping with 2013 judicial sensibilities, the petitioner tried to add “von” before his last name to reflect his German heritage, but the court denounced this as an un-American desire to affiliate himself with people who adopted the philosophies of a “monstrosity and his cohorts.”13 The name “von” was, according to the court, used among German nobility, so the petitioner’s using it in New York might also have resulted in confusion about whether the petitioner had a title he did not have.14

If the court rejects your name change petition, you can still ask everyone who interacts with you to call you by your desired name. (E.g., “My legal name is Francis, but please call me ‘Frank.’”15) Unless you change your name under the common law, however, you must continue to use your legal name on all legal documents, contracts, and applications.

VI.        Publication Requirement

A court that approves your name change will issue a written order to you within 60 days of approval. Sometimes the court will sign the order right on the spot at the name-change hearing. This order will direct you to file the order with the court clerk either in the county in which you live or in a county the ordering court decides. This order will also direct you to publish your new name in at least one local newspaper the judge chooses.16 Some courts, such as the Bronx County Civil Court, require you to publish in two newspapers.17 All the other counties in New York City require publication in one newspaper only.

You must then take this order to the newspaper(s) to ask it to publish your new name in compliance with the judge’s order and pay the newspaper’s publishing fee, a fee that will depend on the newspaper.18 As of July 2013, the New York Times’ fee is $168. The Bronx Free Press, on the other hand, charges $95. The petitioner is responsible for the cost of this publication. You must publish the name change within 60 days of the date of the order.19 The following is an example of a name-change publication notice:
Notice is hereby given that an order entered by the Civil Court, Bronx County, on May ___ 2013, Index #______-13/BX, a copy of which may be examined at the Office of the Clerk, located at 851 Grand Concourse, Bronx, NY 10451, grants me (us) the right to:

Assume the name of (First) Todd (Middle) Michael (Last) Oldhaus.
My present name is (First) Todd (Middle) Michael (Last) Neuhaus.
My present address is 1234 Poland Spring Blvd., Apt. 4L, Bronx, NY 10463.
My place of birth is Bronx, NY.
My date of birth is April 25, 1980.

Once you receive the court order, you will also want to notify the Department of Motor Vehicles, the U.S. Citizenship and Immigration Services, Social Security Administration, and schools of your name change.

The newspaper that publishes your new name will give you an Affidavit of Publication. Within 90 days of your new name’s being published in the local newspaper, you must then file, in the same court that issued your name change order, the Affidavit of Publication along with the original name-change order. The court clerk of that court will then verify that you have complied with the name-change order by certifying it.20 If you are a felon under section II(b) above, the court clerk will mail by first-class mail a copy of this order to the New York State Division of Criminal Justice Services in Albany.21 If you have any current court-ordered support obligations, the court clerk may, in the clerk’s discretion, also mail by first-class a copy of this order to that court to notify the appropriate agencies,22 such as the New York City Division of Child Support Enforcement (DCSE) for child support or the New York City Human Resources Administration (HRA) for spousal support.

You may then purchase from the court certified copies of your name change order to keep for your records.

VII.        In Which Court You File a Name-Change Petition

There is a general filing fee for any court in which you file. For New York City residents, who have the option to petition either Civil Court or Supreme Court, it is both faster and less expensive to petition Civil Court than to petition Supreme Court.

To obtain an index number for your petition, the New York City Civil Court charges $65.00, while the New York State Supreme Court charges $210.00. Supreme Court also requires a Request for Judicial Intervention (RJI) form with the name-change petition.23 Supreme Court does not charge extra for an RJI in connection with a name-change petition. Courts accept only cash, money orders, or certified checks.

If you cannot afford these amounts, you may request a fee-waiver application, also known as a Poor Person Affidavit, officially called an “Affidavit in Support of Application to Proceed as a Poor Person.” In the affidavit, you must state the action or proceeding for which you are submitting the fee-waiver form (e.g., name-change petition), where you reside, your income, the value of your property, any “extraordinary out-of-pocket expenses,” a list of people you financially support, and any other fact relevant in determining your ability to pay the court fees.24 Keep the receipt of your payment with you, and write on your petition the index number that the clerk printed on your receipt.25

This petition for poor person’s relief is a separate petition26 that might take a few extra days to process before you may proceed with your name change.

For cases of parents petitioning to change their child’s name, the New York State Family Court inside and outside New York City is empowered to change a child’s surname, but only if a paternity petition for that child is pending.27 Once paternity is established, the Family Court in New York City will send the filiation order, which states who the child’s father is, to the the New York City Department of Health and Mental Hygiene (DOHMH).28 DOHMH then processes the filiation order and sends it back to Family Court. If both parents consent, Family Court will have both parents sign the name-change form, and Family Court will forward the completed name-change form to DOHMH. About 10 weeks later, the parents will receive a birth certificate with the new surname. Family Court does not charge a fee in connection with a name change during a paternity proceeding.

If you have a problem with your birth certificate, you must correct the certificate before you petition in Civil Court. Civil Court does not have the jurisdiction to correct a birth certificate. To correct a birth certificate, you may petition Supreme Court. But often there are other ways to correct your birth certificate without petitioning Supreme Court.29

VII.        Conclusion

Changing your name in the State of New York can be a challenging task. Although the common-law method provides a relatively straightforward way to change your name, there are numerous reasons why you might still want and need to seek court approval by filing a petition. We hope that this article will help you change your name or the name of a loved one ― and that you prefer a good name to great riches.

See Sylvia Rivera Law Project, How to Legally Change Your Name in New York City, 2013, http://srlp.org/resources/namechange/ (last visited July 17, 2013); N.Y. City Civ. Ct. ― Name Change Law, http://www.nycourts.gov/courts/nyc/civil/nc60.shtml (last visited July 17, 2013); Name Changes, http://www.nycourts.gov/courthelp/namechangeinfo.html (last visited July 17, 2013).

Matter of Sakaris, 160 Misc. 2d 657, 661, 610 N.Y.S.2d 1007, 1010 (Civ. Ct. Richmond County 1993) (citing Matter of Douglas, 60 Misc. 2d 1057, 1059, 304 N.Y.S.2d 558, 561 (Sup. Ct. N.Y. County 1969).
Matter of B., 81 Misc. 2d 284, 286, 366 N.Y.S.2d 98, 100 (Wayne County Ct. 1975).
Matter of Greenfield, 66 Misc. 2d 733, 734, 322 N.Y.S.2d 276, 277 (Civ. Ct. N.Y. County 1970).
Matter of Anonymous, 155 Misc. 2d 241, 242, 587 N.Y.S.2d 548, 548 (Civ. Ct. Queens County 1992).
Matter of Rivera, 165 Misc. 2d 307, 309-12, 627 N.Y.S.2d 241, 242-45 (Civ. Ct. Bronx County 1995).
Matter of Winn-Ritzenberg, 26 Misc. 3d 1, 3, 891 N.Y.S.2d 220, 221 (1st Dep’t 2009) (“‘Apart from the prevention of fraud or interference with the rights of others, there is no reason — and no legal basis — for courts to appoint themselves the guardians of orthodoxy in such matters.’”) (quoting Matter of Guido, 8 Misc. 3d 825, 828, 771 N.Y.S.2d 789, 791 (Civ. Ct. N.Y. County 2003).
Id.
Matter of Nawadiuko, 37 Misc. 3d 1207(A), 2012 N.Y. Slip Op. 51931(U), *4 (Civ. Ct. Richmond County 2012).
Matter of Madison, 261 A.D.2d 738, 738-39, 689 N.Y.S.2d 732, 733 (3d Dep’t 1999) (“[T]he Attorney–General has submitted a letter to this court indicating that the Department of Correctional Services does not oppose petitioner’s application to change his name. Accordingly, in the absence of a ‘demonstrable reason not to do so’, the petition should be granted.”).
See Douglas, 60 Misc. 2d at 1058-59, 304 N.Y.S.2d at 560-61.
See Kushner, supra note 3 of Part I of this article, at 314–18 & 332 for the “substantial reason” standard.
Matter of Jama, 51 Misc. 2d 9, 9, 272 N.Y.S.2d 677, 677 (Civ. Ct. N.Y. County 1966).
Id. at 10, 272 N.Y.S.2d at 678.

See Matter of Di Masi, N.Y.L.J., May 9, 2000, at 33, col. 1 (Civ. Ct. Richmond County) (denying father’s petition to change son’s name from Francis to Frank because father did not “support his petition with competent psychological affidavits as to the emotional harm” his son suffered from his androgynous name, but noting that because son maintained his “common-law right to use whatever name he chooses, there is nothing to prevent him from calling himself Frank and insisting that others do so.”); see also Gersh Kuntzman, Judge Nixes Teen’s “Frank” Appeal, N.Y. Post, May 2000.

N.Y. Civ. Rights Law § 63, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec64 (last visited July 17, 2013).
N.Y. County Law § 907 requires most notices published in the Bronx to be published “in at least two [Bronx] newspapers.”
N.Y. CourtHelp, Name Change DIY Forms, http://www.nycourts.gov/courthelp/namechangeinfo.html#Q4.
N.Y. Courts, Self-Help Ctr., Procedures for Adult Name Change Petition, http://www.nycourts.gov/courts/6jd/forms/SRForms/name_change-adultproced.pdf (last visited July 17, 2013).
Id.
N.Y. Civ. Rights Law § 64, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec64 (last visited July 17, 2013).
Id.
N.Y. CourtHelp, Name Changes, http://www.nycourts.gov/courthelp/namechangeinfo.html (last visited July 17, 2013); N.Y. Courts, Self-Help Ctr., Procedures for Adult Name Change Petition, http://www.nycourts.gov/courts/6jd/forms/SRForms/name_change-adultproced.pdf (last visited July 17, 2013).
Affidavit in Support of Application to Proceed as a Poor Person, http://www.nycourts.gov/courts/6jd/forms/SRForms/ifp_aff.pdf last visited July 17, 2013).
N.Y. Courts Self-Help Ctr., Procedures for Adult Name Change Petition, http://www.nycourts.gov/courts/6jd/forms/SRForms/name_change-adultproced.pdf (last visited July 17, 2013).
Id.
Matter of Maria E. v. Anthony E.,125 Misc. 2d 933, 935, 481 N.Y.S.2d 227, 228 (Fam. Ct. Bronx County 1984).
Changing Your Name or the Name of Your Child in Court, Legal Information for Families Today, 2009, http://www.liftonline.org/guides/pdf/guide_102.pdf (last visited July 13, 2013).
See N.Y.C. Dep’t of Health & Mental Hygiene, Correcting a Birth Certificate, http://www.nyc.gov/html/doh/html/services/vr-birth-correct.shtml (last visited July 17, 2013); N.Y. CourtHelp, Sup. Ct. Adult Name Change Petition Program, Correcting a Birth Certificate, http://www.nycourts.gov/courthelp/diy/nameChange.html (last visited July, 17, 2013).

Dec. 7, 1941 v. Sept. 11, 2001 What is the Correct Government Response? By Paul E. Kerson

Dec. 7, 1941 was the Day “that shall live in infamy” in the words of President Franklin D. Roosevelt. The Government of Japan’s Air Force had attacked the U.S. Naval Base at Pearl Harbor adjacent to Honolulu, Hawaii.

Congress declared war on Japan the next day. See 55 Stat. 795 (1942).
On Feb. 19, 1942, President Roosevelt issued Executive Order # 9066, which permitted U.S. Military Commanders to exclude from “military areas” such persons as may commit espionage or sabotage against the United States.

On Feb. 20, 1942, the Secretary of War designated “the entire Pacific coast” as the Western Defense Command and assigned General J.L. Dewitt as Military Commander.  On March 24, 1942, General Dewitt issued Public Proclamation #3, limiting the movements of “all alien Japanese, all alien Germans, all alien Italians and all person of Japanese ancestry” from most of the Western Defense Command.

On May 3, 1942, Public Proclamation #4 was issued directing the evacuation of all persons of Japanese ancestry (whether U.S. Citizens or not, and not persons of German or Italian ancestry) from their homes to “relocation centers” much further inland.

In 1942, 112,000 persons of Japanese descent resided in California, Washington State and Oregon. 62% were American citizens. They were compelled by the Federal Government to sell their homes and businesses at a loss and were forcibly removed to Government “relocation centers” (read prison camps) in Wyoming, Utah, Idaho and Colorado, where they were not permitted to leave until World War II was over in 1945.  See http://en.wikipedia.org/wiki/Japanese_American_internment, page 1 of 26.

These folks received a three year prison sentence, without trial, for doing absolutely nothing.

The U.S. Supreme Court thought this was a perfectly fine idea.

In Korematsu v. U.S., 323 U.S. 214, 65 S.Ct. 193 (1944),  the Court held:

“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can…

We uphold the exclusion order as of the time it was made and when petitioner violated it…In so doing we are not unmindful of the hardships imposed by it upon a large group of American citizens…

But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.

Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.” See 323 U.S. at 216, 219-220.

In Hirabayashi v. U.S., 320 U.S. 81, 63 S.Ct. 1375 (1943), another
case involving imprisonment of Americans of Japanese ancestry, the U.S. Supreme Court described the imminent danger threatening the United States in 1942:

“The actions taken must be appraised in light of the conditions with which the President and Congress were confronted in the early months of 1942…On Dec. 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries.

Simultaneously, or nearly so, the Japanese attacked Malaysia, Hong Kong,  the Phillipines and Wake and Midway Islands. On the following day, their army invaded Thailand. Shortly afterwards they sank two British battleships. On Dec. 13th, Guam was taken. On Dec. 24th and 25th they captured Wake Island and occupied Hong Kong. On Jan. 2, 1942, Manila fell, and on Feb. 10th, Singapore, Britain’s great naval base in the East, was taken.

On Feb. 27th the battle of the Java Sea resulted in an disastrous defeat for the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack.”
See 323 U.S. at 93-94.

Did this military assault by Japan against the world justify the three year imprisonment, without trial, of 110,000 Japanese-Americans?

In 1980, 38 years late, the U.S. Congress established a Commission to study this question. In 1988, the Congress concluded that this wrongful imprisonment was not justified. The Civil Liberties Act of 1988 was passed, providing for a $20,000 payment to each surviving Japanese-American detainee, a total of $1.2 billion.

In 1992, Congress passed the Civil Liberties Act Amendments of 1992, providing for an additional $400 million to complete these payments to the 82,210 Japanese-Americans and their heirs. On the 50th Anniversary of the Pearl Harbor attack, Dec. 7, 1991, President George H.W. Bush said:

“In remembering, it is important to come to grips with the past. No nation can fully understand itself or find its place in the world if it does not look with clear eyes at all the glories and disgraces of its past. We in the United States acknowledge such an injustice in our history. The internment of Americans of Japanese ancestry was a great injustice, and it will never be repeated.” See Wikipedia entry cited above at page 16. (emphasis added).

Nearly 60 years later, we were attacked again, on Sept. 11, 2001. This
time, it was not an attack by a nation-state. Instead, a non-governmental organization (NGO) attacked us using our own civilian airliners. The World Trade Center in New York and the Pentagon in Virginia were hit, costing thousands of lives. The World Trade Center fell, and an additional airplane crashed in Pennsylvania.

And then a curious thing happened. WE MADE THE EXACT MISTAKE AGAIN THAT THE FIRST PRESIDENT BUSH WARNED US NOT TO REPEAT.

Of course, now that we are in the 21st century, we did not make the same mistake in the same way. We wisely did not imprison Arab-Americans only. No, this time, we imprisoned the most personal information about each and every one of ourselves.

Apparently, when we weren’t paying close attention, the U.S. Government hired 854,000 people and gave them Top Secret Security Clearances. Every e-mail and telephone call metadata (numbers and time of call) is grist for their mill. Gigantic secure buildings have been constructed in Maryland and Virginia to house this operation. (This number of “top secret” employees is 1.5 times the population of Washington, DC Itself.)

Every day, 1.7 BILLION e-mails, telephone calls and other communications are intercepted. Our current national intelligence operation was described by one official as “…a zombie, it keeps on living.” See Top Secret America – A Washington Post Investigation, July 19, 20, and 21, 2010, Dec. 4, 2010 http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-be…page 5 of 7 of July 19, 2010.

The benefit from all this imprisonment of our most personal information is approximately the same benefit we got from imprisoning our fellow American citizens of Japanese descent, that is, zero:

“Beyond redundancy, secrecy within the intelligence world hampers effectiveness in other ways, say defense and intelligence officers. For the Defense Department, the root of this problem goes back to an ultra-secret group of programs for which access is extremely limited and monitored by specially trained security officers…

These are Special Access Programs – or SAPs – and the Pentagon’s list of code names for them runs 300 pages…’There’s only one entity in the entire universe that has visibility on all SAPs – that’s G-d,’ said James R. Clapper, Undersecretary of Defense for Intelligence…
See Wikipedia entry above, page 6 of 7 of July 19, 2010.

It is probably much too late and too difficult to un-build an 854,000
Person Top Secret Federal Government bureaucracy. And who knows, maybe they might uncover a “terrorist” plot this way. (I rather suspect that undercover government agents who speak Arabic based in Arabic countries would do a much better job than an “analyst” reading e-mail in a “secure” office building in Baltimore, but then again, I am not running things, am I).

There appears to be no record of any Japanese spies arrested in the internment camps of 1942. I suspect our 854,000 tax supported e-mail readers of 2013 will yield the same result, zero.

(If a potential terrorist knows we are reading all e-mail and monitoring all telephone calls, he just might decide to communicate with his fellow terrorists in a different way. Or did they not think of this in Washington? Just asking. Does anyone ask questions in Washington?)

But in the meantime, until this foolishness is dismantled (which may be never), we must protect ourselves from ourselves, and $20,000 apiece won’t do it. We need Amendment 4.5.

The existing 4th Amendment to the U.S. Constitution prohibits warrantless searches of “persons, houses, papers and effects.” This is no longer sufficient to carry out the Founders’ Intention to Create a Free Society.

We must enact Amendment 4.5 to protect ourselves from our 854,000 fellow Citizens who spend their workdays reading our e-mails and telephone call metadata:

“No publicly or privately stored electronic information of any kind may be used in any local, state or federal criminal prosecution without a court-ordered subpoena or warrant signed by hand in ink by a local, state or federal judge of competent jurisdiction after careful consideration.”

In 1988 and 1991, our Leadership publicly apologized for imprisoning our Japanese-American neighbors. Today, in 2013, our Leadership must publicly apologize to all of us for wrongfully imprisoning our most personal information for no legitimate public purpose.

They must pass Amendment 4.5 to protect all of us, and themselves, from the very same over-reaction in 2001 that we suffered from in 1942. “Those who do not learn from the past are doomed to repeat it.” To date, that is us.

Roll Call by Diana Szochet

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

Gerard M. Tanella, a suspended attorney (January 9, 2013)
Following a disciplinary hearing, the respondent was found guilty of, inter alia, breaching his fiduciary duty; failing to safeguard funds entrusted to him as a fiduciary allowing one or more non-attorneys to exercise control over his law practice; giving false and/or misleading testimony and written answers to the Grievance Committee; engaging in conduct involving dishonesty, deceit, fraud, and/or misrepresentation, which adversely reflects on his fitness to practice law; undertaking representation in a matter that he knew or should have known he was incompetent to handle; neglecting a legal matter entrusted to him; and engaging in conduct prejudicial to the administration of justice, which reflects adversely on his fitness to practice law. Previously, the respondent was suspended from the practice of law by order of the Appellate Division, Second Department dated May 12, 2011, upon a finding that he posed an immediate threat to the public interest based upon his substantial admissions under oath and other uncontroverted evidence of professional misconduct.

Michael Sprei, a suspended attorney (January 30, 2013)
The respondent tendered a resignation wherein he acknowledged that he could not successfully defend himself on the merits against allegations that he converted funds entrusted to him as a fiduciary. Previously, the respondent was suspended from the practice of law by order of the Appellate Division, Second Department dated January 6, 2012, upon a finding that he was guilty of serious professional misconduct immediately threatening the public interest based upon his substantial admissions under oath and other uncontroverted evidence of serious professional misconduct.

David M. Green (February 6, 2013)
The respondent tendered a resignation wherein he acknowledged that he could not successfully defend himself on the merits against allegations that he induced a client to mortgage certain real property and give him the proceeds of that mortgage, under false pretenses, after which he misappropriated same, and that he arranged for another mortgage to be placed on the client’s property, without the client’s knowledge or consent, and misappropriated the proceeds of that mortgage as well.

Christopher George Lazarou (February 6, 2013)
By orders of the Supreme Court of Georgia dated September 19, 2005, and the Supreme Judicial Court for Suffolk County, Massachusetts, entered July 24, 2008, the respondent was disbarred in Georgia and Massachusetts, respectively.  Upon the application of the Grievance Committee pursuant to 22 NYCRR 691.3, to reciprocally discipline the respondent in New York, the respondent was disbarred.

David Allen Linn, (February 6, 2013)
The respondent tendered a resignation wherein he acknowledged that he could not successfully defend himself on the merits against pending charges that he failed to preserve funds in his escrow account; failed to remit said funds to his client; failed to handle an appeal entrusted to him for which he was paid a retainer; misled the client concerning the appeal on numerous occasions; failed to obtain the balance of settlement funds due to a client; and failed to cooperate with the Grievance Committee. The respondent further acknowledged that he would not be able to successfully defend himself on the merits against additional allegations that he converted funds from multiple real estate transactions.

Neal H. Sultzer (March 6, 2013)
The respondent tendered a resignation in which he admitted that he could not successfully defend himself on the merits against pending charges that he engaged in professional misconduct by participating in real estate transactions on behalf of a client when he knew the client was engaging in illegal or fraudulent conduct.

Robert Michael Ibraham (March 13, 2013)
On January 11, 2012, the respondent pleaded guilty in the Supreme Court, Suffolk County, to eight counts of residential mortgage fraud in the second degree, a class C felony in violation of Penal Law Section 190.65(1)(b). Pursuant to Judiciary Law Section 90(4), the respondent was automatically disbarred effective January 11, 2012, based upon his conviction of a felony.

Deborah K. Rice, admitted as Deborah Karen Gerstein (April 10, 2013)
On or about March 26, 2009, the respondent pleaded guilty in the United District Court for the Eastern District of Pennsylvania, to two counts of mail fraud, in violation of 18 USC 1341, and one count of wire fraud, in violation of 18 USC 1343, both federal felonies. By order dated April 29, 2010, the Supreme Court of Florida disbarred the respondent, effective January 11, 2010. By Opinion dated March 1, 2010, the Supreme Court of Georgia accepted the respondent’s voluntary surrender of her license to practice law, which was tantamount to disbarment under Georgia State Bar Rule 4-110(f). Both disciplinary actions were predicated upon the respondent’s federal conviction. Upon the Grievance Committee’s application pursuant to 22 NYCRR 691.3 to impose reciprocal discipline, the respondent was disbarred in New York, effective immediately.

Daniel J. Fox, admitted as Daniel James Fox (April 24, 2013)
The respondent tendered a resignation wherein he acknowledged that he could not successfully defend himself on the merits against potential charges predicated upon his temporary suspension from the practice of law in New Jersey.

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

Anthony C. Donofrio (January 9, 2013)
Following a disciplinary hearing, the respondent was found guilty of misappropriating and/or failing to preserve funds entrusted to him as a fiduciary. He was suspended from the practice of law for a period of two years, effective February 8, 2013, and continuing until the further order of the Court. By further decision and order of the Court dated March 22, 2013, the effective date of the respondent’s suspension was adjourned until April 22, 2013, solely for the purpose of winding down his practice with respect to existing matters and clients.

Robert A. Macedonio, admitted as Robert Anthony Macedonio, a disbarred attorney (January 9, 2013)
By opinion and order of the Appellate, Second Department dated August 25, 2009, the respondent was disbarred based on his conviction of criminal possession of a controlled substance in the fifth degree, a class D felony in violation of Penal Law Section 220.06(5), and his name was struck from the roll of attorneys and counselors-at-law, effective December 9, 2008. On January 6, 2012, the Honorable James Hudson, County Suffolk County, pursuant to a negotiated plea, granted the respondent’s motion to vacate his felony conviction and accepted in its place a plea to criminal possession of a controlled substance in the seventh degree, a class A misdemeanor in violation of Penal Law Section 220.03. In a decision and order of the Appellate Division dated April 23, 2012, the respondent’s prior disbarment was vacated; the respondent was immediately suspended from the practice of law pursuant Judiciary Law Section 90(4) (f) as a result of his conviction of a serious crime; and a disciplinary proceeding was authorized. Following a hearing, the Appellate Division suspended the respondent from the practice of law for a period of two years, nunc pro tunc to December 9, 2008, and immediately reinstated him.

Kenneth J. Gellerman (January 23, 2013)
The respondent was suspended from the practice of law, pending further order of the Court, upon a finding that he was guilty of professional misconduct immediately threatening the public interest based upon a pattern and practice of converting client funds, and a disciplinary proceeding was authorized.

Raghubir K. Gupta, a disbarred attorney (March 8, 2013)
Motion by the respondent to, inter alia, vacate an opinion and order of the Appellate Division, Second Judicial Department dated June 8, 2010, which struck his name from the roll of attorneys and counselors-at-law, as a result of his felony conviction on October 26, 2009, which conviction was vacated by an amended opinion of the Second Circuit Court of Appeals dated November 8, 2012 (see United States v. Gupta, 699 F3d 682). The respondent’s motion was granted to the extent that the opinion and order dated June 8, 2010, which disbarred him, was vacated, and the Court, on its own motion, the respondent was immediately suspended from the practice of law based on the acts of professional misconduct underlying the criminal allegations, and a disciplinary proceeding was authorized.

Joell Barnett, admitted as Joell Carol Barnett (March 12, 2013)
On November 22, 2011, the respondent pleaded guilty in the United States District Court for the Southern District of New York (Buchwald, J.) to one count of conspiracy to commit wire fraud, in violation of 18 USC 1349, and one count of conspiracy to commit wire fraud and bank fraud, in violation of 18 USC 1349. The respondent was immediately suspended from the practice of law pursuant to Judiciary Law Section 90(4) (f), pending further order of the Appellate Division, as a result of her conviction of a serious crime, and a disciplinary proceeding was authorized.

James G. Carroll (March 13, 2013)
The respondent was immediately suspended from the practice of law, pending further order of the Court, based upon his substantial admissions under oath and other uncontroverted evidence of professional misconduct.

Efrain Ramos, Jr. (March 13, 2013)
The respondent was immediately suspended from the practice of law, pending further order of the Court, based upon his failure to cooperate with the Grievance Committee in its investigation of multiple complaints against him, and a disciplinary proceeding was authorized.

Richard J. Zimmerman (March 27, 2013)
Following a disciplinary hearing, the respondent was found guilty of failing to safeguard escrow funds entrusted to him as a fiduciary, incident to his practice of law; engaging in conduct involving deceit, dishonesty, and misrepresentation; failing to withdraw from representing a client in a transaction in which he knew that continued representation would cause him to engage in deceitful conduct; making false and/or misleading statements to the Grievance Committee; and failing to maintain ledger books or similar records of deposits into and withdrawals from his IOLA accounts. He was suspended from the practice of law for a period of two years, effective April 26, 2013, and continuing until further order of the Court.

Alexander Herman (April 1, 2013)
The respondent was suspended on a voluntary basis pursuant to 22 NYCRR 691.1(c) based on his contention that he suffers from a mental infirmity, until a determination is made by a qualified medical expert as to his capacity to practice law.

Michael Levitis, a suspended attorney (April 10, 2013)
On March 1, 2011, the respondent pleaded guilty in the United States District Court for the Eastern District of New York (Ross, J.) to one count of making a false statement, in violation of 18 USC 1001 (a) (2), a federal felony. By order of the Appellate Division, Second Department dated January 24, 2012 the respondent was immediately suspended from the practice of law pursuant to Judiciary Law Section 90(4) (f), pending further order of the Appellate Division, based upon his conviction of a serious crime. Following a disciplinary hearing, the respondent was suspended from the practice of law for a period of six months, nunc pro tunc to January 24, 2012, with leave to apply for reinstatement immediately.

Yana Schtindler (April 17, 2013)
Following a disciplinary hearing, the respondent was found guilty of failing to safeguard escrow funds entrusted to her as a fiduciary, incident to her practice of law; failing to maintain a ledger book or similar record of deposits into and withdrawals from her attorney escrow account; knowingly making false and/or misleading statements to the Grievance Committee; improperly conditioning the payment of funds, to which a third party was entitled, upon the withdrawal of the party’s complaint to the Grievance Committee; failing to adequately supervise her paralegal; and improperly authorizing a non-attorney to be a signatory on her escrow account. She was suspended from the practice of law for a period of one year, effective May 17, 2013, and continuing until the further order of the Court.

Derek P. McDowell (April 26, 2013)
The respondent was immediately suspended, pending further proceedings, upon a finding that he posed an immediate threat to the pubic interest based upon his failure to cooperate with the lawful demands of the Grievance Committee.

Neal Stuart Spector (May 13, 2013)
The respondent was immediately suspended from the practice of law, pending further proceedings, upon a finding that he posed an immediate threat to the public interest based upon his failure to cooperate with the Grievance Committee.

Keith D. Erlington, admitted as Keith Dalton Erlington (May 17, 2003)
The respondent was immediately suspended from the practice of law, pending further proceedings, upon a finding that he posed an immediate threat to the public interest based upon  his substantial admissions under oath and other uncontroverted evidence that he committee an act or acts of serious professional misconduct.

Anthony C. D’Onofrio (May 22, 2013)
Upon the respondent’s motion to stay of much of the opinion and order of the Appellate Division dated January 9, 2013 as, inter alia, suspended him from the practice of law for a period of two years, pending determination of his appeal from the opinion and order to the Court of Appeals, the motion was denied as academic in light of the dismissal of the appeal, and the respondent’s suspension from the practice of law was ordered to commence May 23, 2013, and to continue until further order of the Court.

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

James N. Hulme, admitted as James Norton Hulme (January 9, 2013)
Following a disciplinary hearing, the respondent was publicly censured upon a finding that he was guilty of engaging in conduct adversely reflecting on his fitness as a lawyer; conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice.

Robert B. Armstrong, admitted as Robert Britton Armstrong (March 13, 2013)
By Memorandum Order of the Disciplinary Board of the Virginia State Bar, entered June 21, 2010, the respondent was suspended from the practice of law in Virginia for a period of 30 days, as a result of his having pled “no contest” on December 3, 2008, to misdemeanor sexual assault. Upon the Grievance Committee’s application pursuant to 22 NYCRR 6913 to impose reciprocal discipline, the respondent was publicly censured in New York.

Marvin Blakely (April 24, 2013)
Upon the Grievance Committee’s application for reciprocal discipline pursuant to 22 NYCRR 691.3, the respondent was publicly censured in New York based upon his having been reprimanded in New Jersey by order of the New Jersey Supreme Court dated January 25, 2012.

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

Barry R. Feerst, admitted as Barry Roy Feerst (January 9, 2013)
William F. Rothman, admitted as William Frederick Rothman (January 9, 2013)
Andrew Bryant Livernois (January 10, 2013 [effective February 4, 2013])
Jeffrey Bettan (January 23, 2013)
Christopher T. Maffia (January 23, 2013)
Shea Elizabeth Fitzekam (January 23, 2013)
Diana M. Vargas, admitted as Diana Monica Vargas (January 23, 2013 [effective February 4, 2013])
Virginia R. Iaquinta-Snigur (March 13, 2013)
Kevin B. Dwyer (March 27, 2013)
Scott B. Feiden, admitted as Scott Bruce Feiden, a suspended attorney (April 24, 2013)
Patricia M. Cavanaugh, admitted as Patricia Marie Cavanaugh, a suspended attorney (May 29, 2013)

© 2013 Brooklyn Bar Association. All rights reserved. Reprinted with permission of the Brooklyn Bar.

Changing Your Name in New York: A Guide for Attorneys and the Self-Represented ― Part II By Gerald Lebovits and Taneem Kabir

Gerald Lebovits is a New York City Civil Court judge and an adjunct professor at Columbia, Fordham, and NYU law schools. Taneem Kabir, an associate attorney at DeToffol & Associates, is admitted to practice in New Jersey and before the United States Patent and Trademark Office. For their research help on all three parts of this article, the authors thank law students Aviva S. Kravitz and Todd M. Neuhaus from Cardozo School of Law and Natalie J. Puzio, an undergraduate at Villanova University.

In this second part of our three-part article on New York’s name-change laws, we discuss how to change someone else’s name and what you must prove to change a name.

Name Change on Another’s Behalf. Name changing on behalf of another usually requires that individual’s consent.

If you are a family member trying to change the name of an adult family member (age 18 or older), follow the steps set forth in the “General Requirements” section below and, in addition, obtain that adult’s written consent. Likewise, if you are the parent of a child and are trying to change that child’s name, you must follow the “General Requirements” below and obtain the other parent’s or step-parent’s written consent and also the child’s written consent if the child is 14-17 years old. If the child is 13 or under, the child need not consent in writing.

The court will deny your name-change petition for a child if the name change does not substantially promote the child’s best interests.1 This “substantial best interest” standard requires the court to consider an entire slew of factors, including the child’s age, maturity, and sense of identity, as well as the effect of proposed name change on the child’s relationship with either parent and the child’s susceptibility to ridicule by peers. 2

In Matter of Kobra, for example, the court denied the parents’ petition for leave to change their nine-year-old daughter’s name because doing so at that “influential pre-teen stage of her personal and social development” when it was “crucial for her to have stability and to maintain a strong sense of self-identity” would make the girl’s life “absolutely miserable and unreasonably venerable to all kinds of probing questions, embarrassment, ridicule, and humiliation” from her peers. 2

If the child is 13-years-old or younger, you do not need the child’s written consent, but you must meet the General Requirements and “substantial best interests of the child” requirement. The court may deny the name you have chosen for your child if you do not properly notify the other parent of the proposed name change. If the non-petitioning parent does not consent to the child’s name change, moreover, the name-change court may consider the withholding of consent as an important factor. 3

Regarding the substantial best-interests standard, changing a 12-year-old child’s last name from that of the natural father to that of a stepfather is in the child’s best interests if the natural father has not seen or financially and emotionally supported the child for many years or if that child’s last name, being different from other step-siblings, causes the child confusion and embarrassment. 4

New York State law offers several ways to satisfy the requirement that the petitioning parent must properly notify the non-petitioning parent of a petition for leave to assume a new name for a child 17 or under. If the other parent lives in New York State, you, as the petitioning parent, must serve the other parent with the child’s name-change petition using a neutral process server.5

If the other parent lives outside New York State, you must send that parent notice by registered mail to a last known address.6 If you cannot find the other parent’s address after diligent investigation, the court will decide how to give appropriate notice to that parent. 7

If a parent successfully petitions to change the parent’s surname, any minor child of that parent may informally assume the changed surname,8 and that parent may register the child for school under the new surname. But unless parental custody rights have been terminated, a noncustodial parent may secure an injunction to prevent the child from using the new surname.9

In Galanter v. Galanter, the parties had minor children together.10 The children resided with their mother. After the father learned that the children were using another last name at school, he quickly filed for injunctive relief (which the court called an “application” and a “petition”) in Supreme Court for an order directing the mother to continue using his last name for the children and to cease and desist from imposing upon the children any other last name. The court ultimately granted his injunction, finding that the mother was not candid about imposing another last name upon the children and that the names invaded and defeated the father’s rights.

If the other parent is properly served with the child’s name-change petition but refuses to consent to it, this process becomes contested. The court will set a date and time for a formal hearing in which you and the nonpetitioning parent must appear and at which you will make your respective arguments about changing the child’s name; witnesses must testify under oath. The court will use as the standard what will substantially promote the child’s best interest.11 It would be wise to seek the help of a competent attorney to represent you at this hearing.

An applicant such as a domestic-violence victim whose personal  safety would be jeopardized  by publishing the proposed new name may ask the court under Civil Rights Law § 64-a(1) to waive the newspaper publication of the parent’s name change or the child’s name change. If the court finds that your safety or your child’s safety would be jeopardized, the court under Civil Rights Law § 64-a(2) may also immediately seal the records of the current name, the changed name, the residential and business addresses of yourself and the child, all telephone numbers, and any other information contained in any court pleading or paper.12 Once these pieces of information are sealed, they can be unsealed only by court order for good cause shown or at your request.13

For example, in Matter of Doe, the mother successfully petitioned to change her name and her infant child’s name without notice to the biological father and without obtaining his consent. According to the Civil Court, New York County, the father had threatened to kill them, and therefore notifying him would have jeopardized both the mother’s and child’s personal safety.14

You are also excused from notifying a spouse serving a life sentence about your child’s name change. That spouse is “civilly” dead and not “living” within the meaning of Civil Rights Law § 62 and therefore has no right to object or to be heard.

If you are a parent of an adult child who suffers from a mental disability, you may petition to change your adult child’s name only if your adult child cannot demonstrate an ability to make that decision on his or her own. In Matter of Individual with a Disability for Leave to Change Her Name, an applicant with a mental disability successfully petitioned to change her name without input from her family or guardian ad litem. The court was satisfied with her ability to make that decision on her own because she was living as independent a life as possible for a person with her disabilities.15 The applicant attended school, participated in a work program, handled her own money, maintained her own bank account, and took public transportation without being accompanied.

III. General Requirements: What You Must Prove
Under Civil Rights Law § 60-65, all name-change applicants petitioning a New York State court must submit the following:
(1) proof of birth information;
(2) criminal records disclosure information;
(3) financial status disclosure information;
(4) reason for changing a name;
(5) the petitioner’s signature;
(6) whether the petitioner has been convicted of a crime or adjudicated a bankrupt;
(7) whether any judgments, liens of record, or actions are pending against the petitioner; if so, the petitioner must sufficiently describe these judgments, liens, and actions in the name-change petition for the court to identify the matter referred to;
(8) whether the petitioner owes any child support or spousal support (called “maintenance” in New York and “alimony” in many other jurisdictions); if so, the petitioner must also disclose in the name change petition (a) whether these child or spousal support obligations have been satisfied or are current; (b) how much child support or spousal maintenance is outstanding at the time of the name-change petition filing; (c) which court issued the order that obligates the petitioner to pay the child or spousal support; and (d) in which county the child-support collections unit is located.16

The judge reviewing the petition has the discretion to accept or reject these documents as proof.
To submit your birth information, you must present with your name-change petition an original or certified copy of your birth certificate. To get a certified copy of your birth certificate if you were born in New York City, go to www.nyc.gov/html/doh/home.html. If you were born outside New York City, go to www.health.ny.gov/vital_records/birth.htm. If you were born outside New York State, you must submit a certified copy of your birth certificate, baptismal certificate, passport, or other legal documents showing the date and place of your birth.17

If you are a petitioner with a criminal record, you must disclose in your name-change petition the details of that record. You can do this by clearly identifying in your petition the nature of your crime(s), the date the conviction(s) were entered, and the name of the court(s) that convicted you. If you are on probation or parole or are serving a sentence as an inmate in a correctional facility for committing various violent felonies,18 you may petition for a name change,19 but you are required to notify the district attorney’s office and courthouses of each county in which you have been convicted when and where the petition will be presented.20 If you have completed your jail sentence, you should contact the court you are petitioning to find out whether you are required to provide a copy of your Certificate of Incarceration or Certificate of Disposition if you have served a felony sentence.21

To disclose your financial status, keep in mind that if you have declared bankruptcy and a court has found you bankrupt, or if any pending judgments, liens, or civil actions are pending against you, you must provide specific details.22 You should contact the court you are petitioning to find out what is necessary, but more is always better so that the judge may make a reasoned decision and so that you will not be accused of withholding information. If you are responsible for child support or spousal maintenance, you must also provide the details listed above in item #8.

To fulfill the affidavit requirement, you must affirm on the “Verification” page of your name-change petition that your petition is true and that if a child’s name is being changed, there is no reasonable objection by anyone, such as the other parent or a guardian, who might reasonably object to the child’s name change and that the child’s name change will substantially promote the child’s best interests.23 The following is an example of a verification:
Todd Neuhaus, being duly sworn, deposes and says: I am the petitioner in the above-mentioned proceeding. I have read the petition and know the contents to be true to my own knowledge, except to those matters alleged on information and belief, and as to those matters I believe them to be true.

To satisfy the signature requirement, you must sign your name-change petition with your current name before a notary public and pay the appropriate notarization fee, if any.24

To explain your reason for changing your name, you may put forward any honest explanation you wish to give, but the court, as we explain below in greater detail, has the discretion to deny your name-change petition if your proposed name will cause fraud, confusion, or offense to common decency and good taste.25

The third part of our three-part article on New York’s name change laws will conclude with where to file, in which court to file, and what happens after you file name-change petitions as well as publication requirements.  Look for it in the next issue of the Queens Bar Bulletin.

1 See Matter of Eberhardt, 83 A.D.3d 116, 121, 920 N.Y.S.2d 216, 219-20 (2d Dep’t 2011) (“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change.”).
2 Matter of Kobra (Hossain), 37 Misc. 3d 1216(A), 961 N.Y.S.2d 358, 2012 N.Y. Slip Op. 52061(U), *5 (Civ. Ct. Kings County 2012). 
3 See Matter of Petras, 123 Misc. 2d 665, 671, 475 N.Y.S.2d 198, 203 (Civ. Ct. Queens County 1984) (“[A]n incarcerated parent should have the right to have his consent, or withholding of consent, carefully considered as an important factor by any court considering a change of name application.”).
4 See Matter of Robinson, 74 Misc. 2d 63, 64, 66, 344 N.Y.S. 2d 147, 148-50 (Civ. Ct. N.Y. County 1972).
5 N.Y. Civ. Rights Law § 62, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec61 (last visited Jun. 17, 2013).
6 Id.
7 Id.
8 N.Y. Civ. Rights Law § 64, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec64 (last visited July 17, 2013).
9 Karen Hogan, Starting Over: Legal Name Change, Pace Law ― Pace Battered Woman’s Justice Ctr., Vol. 1, Issue 1 (1998), http://law.pace.edu/starting-over-legal-name-change (last visited July 17, 2013).
10 Galanter v. Galanter, 133 N.Y.S.2d 266, 267-68 (Sup. Ct. Kings County 1954).
11 N.Y. Civ. Rights Law § 63 available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec63 (last visited Jun. 17, 2013); See Matter of DeJesus, 44 Misc. 2d 833, 834, 254 N.Y.S.2d 23, 24 (Civ. Ct. N.Y. County 1964) (“Change of name of minors should be approved or disapproved solely on the basis of the best interest of the minor.”); Matter of Wing, 4 Misc. 2d 840, 841, 157 N.Y.S.2d 333, 335 (Civ. Ct. N.Y. County 1956).
12 N.Y. Civ. Rights Law § 64-a, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec61 (last visited July 17, 2013).
13 Id.
14 Matter of Doe, 3 Misc. 3d 648, 649-55, 773 N.Y.S.2d 215, 216-20 (Civ. Ct. N.Y. County 2003).
15 Matter of Individual with a Disability for Leave to Change Her Name, 195 Misc. 2d 497, 498, 760 N.Y.S. 2d 293, 294 (Civ. Ct. Richmond County 2003).
16 N.Y. Civ. Rights Law § 61, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec61 (last visited July 17, 2013).
17 N.Y. St. Unified Ct. Sys., N.Y. Civ. Ct., Name Changes, courts.state.ny.us/courts/nyc/civil/namechanges.shtml (last visited July 17, 2013).
18 Id. The additional notice requirement applies if you have been convicted of a “violent felony” defined in N.Y. Penal Law § 70.02,  a felony defined in N.Y. Penal Law Article 125, or any of the following Penal Law sections: 130.25, 130.30, 130.40, 130.45, 135.10, 135.25, 230.30(2), 230.32, 230.05, 230.06, 255.25, 255.26, and 255.27.
19 Matter of Washington, 216 A.D.2d 781, 781, 628 N.Y.S.2d 837, 837-38 (3d Dep’t 1995).
20 N.Y. Civ. Rights Law § 62 available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec62 (last visited July 17, 2013).
21 N.Y. Courts, Self-Help Ctr., Procedures for Adult Name Change Petition, http://www.nycourts.gov/courts/6jd/forms/SRForms/name_change-adultproced.pdf (last visited July 17, 2013).
22 Id.
23 N.Y. Civ. Rights Law § 63, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec63 (last visited July 17, 2013).
24 Sylvia Rivera Law Project, How to Legally Change Your Name in New York City, 2013, http://srlp.org/resources/namechange/ (last visited July 17, 2013).
25 See supra note 3 from Part I of this article, at 314-15 & 332-34 for a more detailed discussion about the case law surrounding the requirement against fraud, confusion, and indecency.

The Rules of Professional Conduct: A Judicial Externship Perspective How Do the Rules of Professional Conduct Apply to a Law Student? By Dina Quondamatteo, Hofstra Law School

A judicial externship gives a law student an opportunity to observe and participate in a wide variety of court proceedings as well as provide a platform for learning and developing a system of professional ethics before entering the work force as a licensed attorney.  Judges use interns in many ways and usually assign tasks that are similar to those that their law clerks perform.  Part of these duties include conducting legal research,  preparing research memoranda for the judge, writing rough drafts of orders and opinions, attending preliminary hearings, talking with attorneys, and attending trial proceedings.  All of these tasks require ethical considerations.  Being directly responsible for these assignments can provide a law student with meaningful lessons for developing professional conduct as an attorney and address ethical and professional issues that may arise.  Therefore, issues relating to ethics and professionalism should apply to law students because although they are not working as licensed attorneys in an official capacity, they are taking on the role of such and should learn and apply the ethical responsibilities and obligations that come with that role.  These responsibilities should be conveyed, implemented, and reinforced by the supervising attorney through the Rules of Professional Conduct.

The New York Rules of Professional Conduct (“New York Rules”, “Rule”, “Rules”) are similar to the American Bar Association (“ABA”) Model Rules of Professional Conduct in that both are categorized by duties owed to the client, the court, and the profession, and disciplinary action for rule-violation.  Duties to the client include confidentiality (Rule 1.6), avoiding conflicts of interest (Rule 1.6 – 1.12), being competent (Rule 1.1), diligence and effectively assisting the client (Rule 1.3), avoiding commingling (Rule 1.15), self-dealing and fee splitting (Rule 7.2), and withdrawing from representation (Rule 1.16).  Rule 3.3 defines the duties to the court which include disclosing legal decisions of adverse authority, proper courtroom demeanor, and disclosing perjurious intentions of a client.  Duties to the profession embrace a vital area that may have an impact on an intern’s work in the court: lawyer misconduct and reporting such professional misconduct (Rule 8.3, 8.4).  Duties to the profession also include legal advertising standard (Rule 7.1), voluntary pro bono services (Rule 6.1), honesty in the Bar admission process (Rulev8.1), and involvement in legal services organizations (Rule 6.3).  There are a few rules related to legal interns that overlap with the duties owed to the client, court, and profession, which may also have an impact on an intern’s work in the court.  They are lawyer’s responsibility for a nonlawyers’ conduct (Rule 5.3), trial publicity (Rule 3.6), confidentiality (Rule1.6), and unauthorized practice of law (Rule5.5).

According to Rule 5.3 of the New York Rules of Professional Conduct and the ABA Model Rules of Professional Conduct, a lawyer is responsible for the ethical behavior of non-lawyers who work in his law firm or practice.  Regarding placement as an intern within the court, the law clerk must ensure that the intern’s conduct is “compatible with the professional obligations” of being a lawyer.  If the law clerk observes the intern engaging in unprofessional conduct or learns that unprofessional conduct has occurred, the law clerk, in his capacity as “supervising attorney,” must take appropriate corrective action.  For example, if an intern attends a social event or goes out for a few drinks and begins telling people about the details of confidential court matters, the law clerk that included the intern in these affairs can be disciplined for violating the ethical obligation of Rule 3.6, “refraining from making extrajudicial statements that should not be publically communicated.”  Even though the law clerk did not make these statements, the unethical conduct of the intern is projected onto the law clerk.  One could say that the law clerk is “vicariously liable” for the conduct of an extern.  Moreover, under New York Rule 5.3.8, if the supervising attorney “knowingly fail[s] to supervise” an intern, he can also be disciplined for violating the ethical responsibility for the conduct of the intern.  This rule in particular could have a strong impact on an intern’s work because they would not receive the guidance or feedback needed in making decisions which could lead to potential ethical dilemmas.  Supervision from the law clerk and school faculty is key in helping law students not only make challenging decisions and to comply with ethical standards, but also to offer practical guidance, critique, and encouragement as they experience, develop, and shape the foundation of their own professional and ethical structure as future attorneys.

Working as an intern for the court raises several questions regarding the Rules of Professional Conduct.  First, do the ethical rules bind students even though they are not yet admitted to the bar?  In other words, are law students in subordinate lawyer roles guided by Rule 5.2?  If so, does Rule 5.5, Unauthorized Practice of Law, apply?  To illustrate, in the case In re Wilkinson, an attorney was sanctioned for violating Louisiana Rules of Professional Conduct for failing to supervise an unlicensed law student employed in his office.  805 So. 2d 142 (La. Jan. 15, 2002).  The Court held that the attorney was responsible for the incorrect legal advice given to his client by the unlicensed law student even though the attorney was not directly responsible for the misinformation. Id at 146.  The Court further found that “A lawyer cannot delegate his professional responsibility to a law student employed in his office . . .The student in all his work must act as agent for the lawyer employing him,  who must supervise his work and be responsible for his good conduct.”  Id. at 147.  Second, what if a law student suspects a violation of the Rules which raise significant questions as to the judge or law clerk’s honesty, work ethic, trustworthiness as per Rule 8.4, Misconduct?  Does the law student report to the school’s supervising professor?  If the student confides in the supervising professor, who happens to be a licensed attorney, is legal advice being offered?  Does Rule 1.6, Confidentiality of Information, kick in exempting him or her from reporting the misconduct as per Rule 8.3, Reporting Professional Misconduct?  Finally, would there be a conflict of interest if the student appears in front of the judge they interned for as an attorney in the future?  How would the student inquire about this potential ethical predicament?  The Rules do not cover all bases, which in my opinion, is the reason why they are known as self-governing rules.

S Corp Sales, Built-In Gain, and 2013 By Louis Vlahos Continued

The amount of corporate BIG tax imposed upon the S corporation is treated as a loss taken into account by the corporation’s shareholders in computing their individual income tax.  The character of the loss is based upon the character of the BIG giving rise to the tax; thus, the sale of an asset that produces a capital gain would generate a capital loss.

Assume, for example, that ACME Inc. was a C corporation with no liabilities and with the following assets on January 1, 2010:

Assets                                     Basis               FMV
Building & Equipment     $0                $2 MM
Goodwil                                   $0                $1 MM
Total Assets                           $0                $3 MM

ACME made an S election effective January 1, 2010.  The BIG inherent in its assets is $3MM.  In 2013, ACME sells its assets to an unrelated third party for $3.5 MM.  The sale occurs within ACME’s recognition period.  Of the $3.5 MM gain recognized, $3 MM represents BIG and is subject to corporate level tax at a 35% rate.  Thus, ACME is liable for $1.05 MM of corporate income tax.  Because ACME is an S corporation, the gain recognized passes through to its shareholders, who are also allocated a loss in the amount of the tax liability arising from the BIG.  Thus, the shareholders are allocated $3.5 MM of gain and $1.05 MM of loss, they pay a 20% capital gain tax, and they net proceeds of $1.96 MM: sale proceeds ($3.5 MM) minus corporate tax ($1.05 MM) minus individual capital  gains tax ($490K).

By comparison, if the asset sale had not been subject to the BIG tax, there would have been no corporate tax, the $3.5 MM of gain recognized by the corporation would have been taxed only to the shareholders (at 20%), and they would have retained $2.8 MM of the sale proceeds.

Recognition Period & ATRA

Given the economic impact of the BIG tax, shareholders have historically been reluctant to cause their S corporation to sell its assets during its recognition period.

Before 2009, this period was defined as the first ten taxable years that the S election was in effect.  However, Congress temporarily reduced the recognition period to five tax years, and the American Taxpayer Relief Act of 2012 (P.L. 112-240; “ATRA”) extended the five-year period to include tax years beginning in 2013.  Thus, with respect to any pre-conversion BIG, (for sales occurring in 2013)  no tax will be imposed under Section 1374 if such sales occur after the fifth taxable year the S corporation election is in effect.

2013

In light of the foregoing, 2013 may be a good time for an S corporation that converted from C corporation status in 2007 or earlier to consider selling all or some of its assets.

As an illustration, assume ACME Inc. was a C corporation that elected to be taxed as an S corporation beginning on January 1, 2008.  At that time, it had net unrealized BIG of $3 million.  Prior to ATRA, if ACME had sold its assets in 2013 and recognized gain of at least $3 million, then the entire BIG would have been subject to corporate level federal income tax because the sale would have occurred within the ten-year recognition period.

Under ATRA, however, the recognition period is reduced to five years.  Since ACME will have been an S corporation for five years at the end of 2012, its recognition period will end at that time, and any gain on the sale of its assets in 2013 will escape corporate level taxation, even if that gain is recognized and taxed after 2013 (during what would have been the 10-year recognition period before ATRA) under the installment method.

Notably, the ATRA provision that reduced the recognition period to 5 years expires at the end of 2013, and the ten-year recognition period is then reinstated.  Thus, if ACME delays the sale of its assets to any time from 2014 through 2017, it will be subject to corporate tax on its BIG.

Conclusion

The foregoing is not to suggest that a pre-2008 S corporation with assets subject to the BIG tax should hurry to sell those assets only to capture the tax benefit afforded by ATRA before it expires.  However, an S corporation that was otherwise contemplating a sale should consider the fact that the shortened recognition period expires at the end of 2013, thereby increasing the tax cost of a later sale.

Editor’s Note:  Lou Vlahos is a partner at the law firm of Farrell Fritz, P. C., where he leads the Tax practice group.  Lou can be reached at lvlahos@farrellfritz.com or at 516-227-0639.

Vicious Propensitites in Domestic Animals by Hon. George M. Heymann Continued

In recent weeks there were two Appellate Division decisions that dealt with the issue of whether the plaintiffs, who sustained injuries caused by dogs, could recover damages on the theory of negligence.

This article will discuss these two decisions, Bloom v. Lenten, [AD 3rd Dept.] 21 and Doerr v. Goldsmith, [AD 1st Dept.] 22 as well as highlight the leading Court of Appeals cases that the lower courts relied on pertaining to injuries caused by domestic animals.23

In Bloom, the plaintiff was a photographer and the defendants had a dog breeding business at their home. In 2007, plaintiff went to defendants’ home to photograph puppies of their English Labrador retriever, including a puppy named Delilah. Approximately three years later, the plaintiff again went to defendants’ home to photograph new puppies. While in the backyard on her second visit that year, three full grown dogs were running around playing and chasing after Delilah, who had now grown substantially and weighed about 50 pounds. As she was being chased, Delilah “ran into the back of plaintiff’s leg, knocking her forward and onto the ground” causing plaintiff to sustain serious injuries.

The Supreme Court granted defendants’ motion for summary judgment dismissal as to the negligence claim but not as to the strict liability claim finding questions of fact as to whether Delilah had vicious propensities of which the defendants would be aware of.

On appeal, the Appellate Division, Third Department, modified by finding that the defendants “conclusively demonstrated that they lacked knowledge of a vicious propensity on Delilah’s part, entitling them to summary dismissing the complaint.” Citing Collier v. Zambito24 the court held that “a vicious propensity does not necessarily have to be ‘dangerous or ferocious’ but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long as ‘such proclivity results in the injury giving rise to the lawsuit’.”25 Thus, the conduct of Delilah running into the plaintiff while being “playfully chased” by the other dogs was nothing more the “normal canine behavior that does not amount to vicious propensity (see Hamlin v. Sullivan, 93 AD3d [1013] at 1015; Bloomer v. Shauger, 94 AD3d 1273, 1274, affd ___ NY3d___, 2013 NY Slip Op 03121).”

In similar fashion, the Appellate Division, First Department, in Doerr, held that where a bicycle rider collided with a dog that ran into his path, causing him to fall off his bike and sustain injuries, the plaintiff could not sue the dog’s owner for negligence.

Here, the plaintiff was riding on a path in Central Park when he observed the defendant Goldsmith holding the dog in question on one side of the path and the defendant Smith on the other side clapping her hands as a signal to the dog, which belonged to her, to come to her. In anticipation of what might occur, “plaintiff screamed out, ‘Watch your dog’.” Unable to avoid hitting the dog, plaintiff was “propelled” from his bike. The plaintiff argued that this was a case of negligence based on the conduct of the defendants and not one caused by the “vicious propensities” of the animal.

The Supreme Court, N.Y. County, denied the defendant Smith’s motion for summary judgment dismissing the complaint and the Appellate Division reversed.

The appellate court held that: “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal ( )26. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities (Petrone v. Fernandez, 12 NY3d 546 at 550; Collier v. Zambito, [supra] at 446; see also Bard v. Jahnke, 6 NY3d 592 at 596-597, 599). The term ‘vicious propensities’ includes ‘the propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ (Collier v. Zambito, [supra] at 446). Here, there was no evidence that the defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted (see Smith v. Reilly, 17 NY3d 895).”

Despite a vigorous dissent, the majority went on to state that “[h]ere, the accident occurred when defendant’s dog collided with plaintiff, and defendant’s alleged negligence in calling the dog does not provide a basis to depart from the strict liability rule recognized by the Court of Appeals in Petrone, Bard and Collier (see Bloomer v. Shauger, [supra at]1274 [3d Dept 2012] [‘Although… defendant’s conduct on the day in question indeed may have evidenced some negligence on her part…, the Court of Appeals has made its position clear…; therefore, we are constrained to view this matter solely in the context of strict liability’]…).” (Emphasis added)

COURT OF APPEALS CASES

In Collier v. Zambito the plaintiff child was playing at the defendants’ house with their son and other children. Their dog was always confined to the kitchen behind a gate but would bark when visitors were in the house. When plaintiff came downstairs to use the bathroom, defendant Mary Zambito had the dog on a leash and encouraged the plaintiff to approach the dog. As he did, the dog lunged and bit him in the face. “There was no dispute that the dog’s attack was unprovoked” and that it “had never previously threatened or bitten anyone.”

Defendants sought summary judgment dismissal of the suit because plaintiff did not demonstrate that the dog had vicious propensities or that the defendants knew or should have known of such vicious propensities. Plaintiff cross-moved for summary judgment for liability. The Supreme Court denied both motions finding issues of fact as to the defendants’ knowledge of the dog’s vicious propensities since they kept it confined to the kitchen behind a gate when visitors came to the house due to the constant barking.

The Appellate Division reversed, on the law, finding that plaintiff failed to show that defendants were aware or should have been aware of the dog’s vicious propensities. The court found that there was no evidence that the dog had vicious propensities of the type that resulted in the plaintiff’s injury.  Two justices dissented.  The Court of Appeals affirmed the reversal.
“[T]he owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities ( ). Vicious propensities include the ‘propensity to do any act that might endanger the safety of persons and property of others in a given situation’ ( ). Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice ( ). In addition, a triable issue of fact as to the knowledge of a dog’s vicious propensities might be raised ‘even in the absence of proof that the dog had actually bitten someone’ by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained ( ).  *** [Behavior that] reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities albeit only when such proclivity results in the injury giving rise to the lawsuit.  But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether it had vicious propensities.”

In Collier, there was no evidence that the dog’s behavior was ever “threatening or menacing. Indeed, the dog’s actions ‘barking and running around’ are consistent with normal canine behavior. Barking and running around are what dogs do.”

In a dissenting opinion, Judge G. B. Smith pointed out that “of course dogs run around and bark.” The fact that defendants’ dog had never actually bitten or threatened anyone should not be dispositive, where, as in this case, the dog was never given an opportunity to do so.  *** Regardless that the defendant may have meant well by inviting the plaintiff to approach the dog, “a jury could reasonably conclude that it was ill-considered in light of the attendant risk of injury.”

Bard v. Jahnke gave the Court of Appeals an opportunity to have a “bull” session. In this case, the bull was named “Fred.”  Fred was roaming freely on the defendants’ property in an area referred to as a “low cow district” housing about 130 cows in order to impregnate those cows who failed to conceive by artificial insemination. Plaintiff was there to do some repair work in the dairy barn at the request of another self-employed carpenter and was injured when Fred charged him and slammed him into the pipes in the stall.

The Supreme Court granted the defendants’ summary judgment motions for dismissal because Janke did not know that the plaintiff would be working in his barn that day and the co-carpenter did not know of the bull’s presence in the barn.  The Appellate Division affirmed but on the grounds enunciated in Collier that Jahnke could not be liable for plaintiff’s injuries unless he knew or should have known of the bull’s vicious or violent propensities. The court further found that there was “competent” evidence to establish that prior to the accident Fred “had never injured another person or animal or behaved in a hostile or threatening manner.”

The Court of Appeals affirmed, re-stating its “long-standing rule” regarding “known or should have known of an animal’s vicious propensities” as set forth in Collier. Fred had never attacked any farm animal or human being before this incident. Thus, Bard could not “recover under the traditional rule. *** In sum, when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.” The Court rejected plaintiff’s argument that the defendant is liable under common-law negligence as stated in section 518 of the Restatement (Second) of Torts which “provides generally that the owner of a domestic animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm, or is negligent in failing to prevent harm.”

Addressing the Court’s failure to adopt the view of the Restatement, Judge R. S. Smith, in his dissent, strongly asserted that “[t]his Court today becomes the first state court of last resort to reject the Restatement rule. I think it is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense that will probably be eroded by ad hoc exceptions. *** No opinion of our Court before today announced the rule, now adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face ‘that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned. *** The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or a bull?”  Judge Smith then cited a few examples where, in his opinion, future cases “will put the rule adopted by the majority under strain.”

As reflected in subsequent cases, Judge Smith’s dissent in Bard v. Jahnke has struck a chord with other jurists in the various courts.

In Petrone v. Fernandez, the plaintiff, a mail carrier, was chased by the defendant’s Rottweiler who was lying unleashed on the unfenced front lawn of defendant’s house.  As soon as plaintiff noticed the dog, while approaching the house, she immediately turned away and began to return to her car. The dog began to run in her direction and she then ran the remaining distance to the car and attempted to jump through the open window on the driver’s side, sustaining injuries. Ironically, the dog did not bark, bite, threaten or come in contact with the plaintiff as she tried to extricate herself from her state of “panic” that the dog was about to attack her.

Plaintiff sued on the theory of defendant’s knowledge of his dog’s prior vicious propensities and for negligence of the local leash law that required the defendant to keep his dog leashed “in any open or unfenced area abutting on a public place.”27

The Supreme Court dismissed the complaint against the defendant because there was no showing that the defendant had knowledge of the dog having any vicious propensities or behavior demonstrating a proclivity to act in any way to harm others and “the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that the defendant … left the dog unrestrained.”

The Appellate Division held that there was a cause of action for the leash law, as well as the dog’s behavior notwithstanding that there was no prior display of vicious propensities and deleted those provisions of the Supreme Court’s order dismissing the cause of action for negligence.

The Court of Appeals reversed stating: “ ‘[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier’ (Bard v. Jahnke, [supra][emphasis added by Court]) – i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities. *** Here, defendant’s violation of the local leash law is ‘irrelevant because such a violation is only some sort of evidence of negligence, and negligence is no longer a basis for imposing liability’ after Collier and Bard.” ( )

In a separate concurring opinion, Judge Pigott noted that had he sat in the Bard case he would not have joined the majority’s opinion. However, “on constraint” of that decision he concurred in this case. “In my view, and for the reasons stated in Judge R. S. Smith’s dissent in Bard ( ), it was wrong to reject negligence altogether as a basis for the liability of an animal owner. ‘[N]egligence by an owner, even without knowledge concerning a domestic animal’s [vicious] propensity, may create liability’ ( ).”

Smith v. Reilly also involved a collision between a cyclist and a dog. In a memorandum opinion, the Court of Appeals held: “Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v. Zambito, [supra]).”

Hamlin v. Sullivan, cited by the Appellate Division, Third Department, in Bloom, is similar to that case in that the plaintiff was injured when defendant’s dog, running freely in a park area designated for that purpose, ran into the plaintiff causing her to fall. On appeal, the Supreme Court’s denial of defendant’s motion for summary judgment dismissal was reversed. Citing, inter alia, Smith, Collier and Bard, the court opined that “[i]nasmuch as the behavior of which defendant admittedly had notice –jumping on people- was not the behavior that resulted in plaintiff’s injury, and plaintiff failed to produce any evidence that defendant had notice of a proclivity by [the dog] to run into people and knock them over, plaintiff failed to raise a question of fact to preclude summary judgment ( ).”28 The Appellate Division concluded that running around in a dog park where dogs are supposed to run around was “typical canine behavior” and insufficient to establish “vicious propensities.”

Bloomer v. Shauger, cited in both Bloom and Doerr, involved a horse who was “spooked” when its owner approached the horse with a “lead line” causing the horse to suddenly pull its head back which was resting on plaintiff’s shoulder. Plaintiff was injured when the middle finger of his left hand got caught in one of the rings in the horse’s metal halter which he had been holding.

Here, again, the appellate court, in affirming the trial court’s granting of defendant’s summary judgment motion for dismissal was “constrained to view this matter solely in the context of strict liability” citing Petrone, Bard and Collier. The court pointed out its recently expressed “discomfort” in New York’s failure to recognize a common law negligence to recover for injuries caused by a domestic animal where the “defendant’s conduct on the day in question indeed may have evidenced some negligence on her part.”29

The dissent averred that the horse’s behavior at issue – avoidance to lead lines- was the very behavior that resulted in the plaintiff’s injury and might not have occurred but for the defendant approaching with the lead line. Thus, “the horse responded in a manner entirely consistent with [her] propensity” to avoid the lead line and the matter should proceed to trial on the contested factual issues.

The Court of Appeals affirmed the Appellate Division, reiterating its holdings in Bard v. Jahnke and Collier that the defendant had no knowledge of the horse’s vicious propensities, etc. “No showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of ‘behavior that is normal or typical for the particular type of animal in question ( ).”30

In a major departure from its prior holding in Bard, the Court of Appeals [Smith, J] in Hastings v. Suave31 held that “the rule of Bard v. Jahnke does not bar a suit for negligence when a farm animal has been allowed to stray from property where it is kept.”  Here, plaintiff was injured when her vehicle collided with a cow that wandered off defendant’s property and onto a public highway. The Supreme Court granted defendants’ motions for summary judgment dismissal and the Appellate Division, Third Department, affirmed.  “While we are obliged to affirm … we must note our discomfort with this rule as it applies to these facts – and with this result. ***Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on the farm property… The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it.” (Emphasis added)

In reversing the Appellate Division, the Court of Appeals finally recognized that situations have and will continue to arise where its strict liability holdings will become “eroded” by “ad hoc exceptions.”32 “We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal – i.e., a domestic animal as that term is defined in Agriculture and Markets Law §108 (7) [supra at fn 4] – is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.” (Emphasis added)33

CONCLUSION

The Court of Appeals’ latest holding, which leaves the door ajar for recovery in a “different” case, in which the injuries were caused by the negligence of the owners of household pets without having to prove the defendants’ knowledge of their pet’s vicious propensities, is a major breakthrough in this area of the law.

Perhaps one or both of the plaintiffs in Bloom and/or Doerr will be arguing this issue before the Court of Appeals. In that event, there is no doubt Judges Smith and Pigott will pay special attention based on their prior opinions in Bard, Petrone, and Hastings, as set forth above. In the case of Doerr v. Goldsmith, the Judges will be treated to the well reasoned, common sense, dissent by Associate Justice Mazzarelli who pointed out that “[t]he rule articulated in Bard and affirmed in Petrone is not without controversy.”  She noted Judge Pigott’s concurrence in Petrone “on constraint” of Bard and his endorsement of the dissent of Judge R. S. Smith as set forth above.  She further states that “[b]ecause of the Bard/Petrone rule, it has been virtually impossible for people injured by animals to recover if they could not establish the defendants’ knowledge of the animal’s vicious propensities. Indeed, even if the injury was not caused by ‘vicious’ behavior, no remedy exists.    ***  Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that caused the accident.” (Emphasis added)34

34 Doerr v. Goldsmith, supra at 536