CLARO Queens Celebrates Sixth Anniversary by Charlie Giudice, Staff Attorney, Queens Volunteer Lawyers Project, Inc.


On January 25, 2008, the first session of Queens’ Civil Legal Advice and Resource Office (CLARO) was held in Queens County Civil Court. Six years and more than 300 sessions later, Queens CLARO has provided more than 6,000 free legal consultations to approximately 4,000 unrepresented defendants in consumer credit collection lawsuits. More than 150 lawyers have volunteered at Queens CLARO advising people who lack the resources to hire private counsel.

“Simply by coming to CLARO and receiving free legal advice, pro se defendants significantly improve their chances of a positive outcome in court,” said Mark Weliky*, executive director of the Queens Volunteer Lawyers Project (QVLP), which co-founded and continues to administer Queens CLARO. “Many of our CLARO visitors are able to negotiate settlements for thousands less than the amounts demanded. Sometimes, the cases may even be dismissed or discontinued.”

“What makes CLARO a success,” said April A. Newbauer*, “is the collaborative relationship between law schools who provide student interns to assist at CLARO sessions, legal service providers, bar associations, attorney volunteers and the courts.”

Newbauer previously served as Attorney-in-Charge of the Queens Neighborhood Office of the Legal Aid Society and Chair of the New York City Bar Association’s Civil Court Committee. She played a key role in establishing the pilot CLARO project in Brooklyn
and expanding to Queens County.

“By having everyone pitch in and collaborate, we were able to put together a program that has assisted so many unrepresented litigants,” said Newbauer, now a Court of Claims Judge who sits in the Supreme Court, Bronx County.

“One attractive feature for volunteer attorneys is the limited-scope nature of the service,” Newbauer said. “Attorney volunteers need only agree to provide service within the hours of the clinic. They do not have to represent clinic visitors in their court cases. Supervision and support are available to volunteers on-site.”

One typical CLARO visitor was Mr. T. (name changed to protect confidentiality). When he arrived at CLARO, he had a trial date scheduled, but had just received papers in the mail from the debt-buyer Plaintiff. He was looking for help to understand what the papers meant.

The papers turned out to be a summary judgment motion from Plaintiff, returnable before the trial date. A CLARO volunteer explained to Mr. T. that his papers required him to come to court before his scheduled trial date. The volunteer attorney also discussed several affirmative defenses with Mr. T. QVLP staff assisted Mr. T. by preparing an affidavit in opposition to Plaintiff’s motion. Mr. T. appeared for his motion date and submitted the opposition to the judge. Plaintiff’s motion was denied, and, at trial, based on the affirmative defenses identified at CLARO, the case was dismissed.

While CLARO has been successful in assisting its visitors and providing greater access to justice, the debt collection industry, with its prolific filings in the courts of New York State has remained rife with issues.

In his 2014 Law Day remarks on April 30, New York State Court of Appeals Chief Judge Jonathan Lippman* highlighted reoccurring issues in consumer debt collection cases that tip the scales unfairly against uncounseled debtors. Among the most reprehensible practices identified by the Chief Judge, was that of creditors obtaining default judgments by filing hearsay affidavits filled with boilerplate language so lacking in specificity that a layperson could not tell whether he or she was actually responsible for the underlying debt. Use of such boilerplate affidavits is known as ‘robosigning,’ a practice in which mass-produced affidavits are signed in bulk by individuals lacking knowledge of the information contained in the affidavits. Many times the affiant has not written or even read the affidavit. This practice has flourished because many debt collection lawsuits are filed by third parties on debts that are several years old and may have been sold several times.

“By the time these so-called ‘zombie’ debts show up in court, it is extremely difficult for debtors – 98% of whom are unrepresented – to assess the validity of the claims against them,” Lippman said. “In fact,” Lippman went on to say, “many debtors first realize that they have been sued when they find their bank accounts frozen or their wages garnished.”

Many of the issues highlighted by Lippman in his remarks – missing documentation, defendants never being served, the high rate of defaults and even judgments being issued against incorrect parties – have been prevalent for years. A 2007 report by the Urban Justice Center found that 80% of collection cases filed in New York City Civil Courts resulted in default judgments. Approximately 320,000 collection cases were filed in the New York City Civil courts in 2006 alone, according to the report. That number exceeded the number of federal civil and criminal cases filed nationwide that year.

The vast majority of the small number of defendants who did appear were unrepresented. “These numbers are relatively unchanged today,” Judge Lippman said. He also said that, “‘sewer service’ – in which fraudulent affidavits of service are filed with the court when the defendant was never actually served – remains a problem even after crackdowns by the courts and licensing agencies.” According to the Chief Judge, “significantly more than half of these cases filed across the state result in default judgments.”

CLARO owes its existence to this explosion of consumer collection lawsuits. The problem first became apparent around 2005,” Newbauer said.

“In addition to our existing work at Legal Aid, we were seeing consumers coming in with judgments; people with fixed incomes with wages garnished and bank accounts frozen,” Newbauer said.

Dora Galacatos, director of the Feerick Center for Social Justice at Fordham Law School, which administers CLARO in Manhattan, the Bronx and Staten Island, agreed. “Default rates citywide were astronomical,” she said.

Resources to address this need were scarce. Newbauer said that at the time, “Legal Aid had ‘half of a full-time attorney’ to address this expanding area of need. We really had to borrow people’s time to work in the neediest areas.”

“What was needed,” Newbauer said, “was a citywide approach emphasizing collaboration among legal service providers, law schools and the courts.”

“We needed cooperation and we got it,” Newbauer said, emphasizing the roles played by Judge Fern A.
Fisher, the deputy chief administrative judge for New York City Courts; Judge Bernice D. Siegal, then the supervising judge of Queens Civil Court, now a justice of the Queens Supreme Court; the law schools; The Legal Aid Society and the Volunteer Lawyers Project. “It ended up being a good thing for everyone, including the court.”

Today, there are CLARO clinics in all five boroughs of New York City, as well as in Westchester and Erie counties. The program may expand to other counties in the future. Judge Lippman in his Law Day remarks specifically mentioned CLARO as an “excellent” program that can be used as a resource to increase legal assistance.

Visitors to CLARO, meet with staff and volunteer attorneys, assisted by law student interns, to receive advice regarding their cases. The attorneys can assist with vacating default judgments, filing answers, and responding to motions and discovery requests from creditors.

CLARO does not represent visitors in their court appearances. Visitors may be eligible to referrals to other free legal service providers for additional services. CLARO clinics refer visitors to other free legal service providers as appropriate.

Over time, the assistance provided at Queens CLARO has expanded. “At first,” Weliky said, “volunteer attorneys would assist visitors mainly with answers and advice. When debt collecting plaintiffs began making lengthy discovery demands and motions for summary judgment before the next scheduled court date, Queens CLARO adapted by assisting pro se litigants to respond to the discovery demands, including objection to improper questions, and to oppose summary judgment motions.”

Queens CLARO is held every Friday that court is in session at 1:30 p.m. in room 116 of Queens Civil Court.

“Visitors to Queens CLARO who have achieved successful outcomes in their cases are too numerous to mention,” Weliky said. “CLARO volunteer lawyers have uncovered fraudulent affidavits of service, incorrect account numbers, instances of mistaken identity and material misstatements of facts in plaintiffs’ papers. This bit of knowledge can make all the difference to an unrepresented defendant.”

“Defendants who know what the Plaintiff needs to prove fare better in court,” Weliky said.

Book Review: Business and Commercial Litigation in Federal Courts by Paul E. Kerson

Once again, Robert L. Haig has done a masterful job in creating the Third Edition of Business and Commercial Litigation in Federal Courts (2011, with 2013-2014 pocket parts).  There is also a CD-Rom edition.  All are published by the Section of Litigation of the American Bar Association in conjunction with West – a Thomson Reuters business.  All of the royalties from this publication go to the ABA Section of Litigation.  In his introduction, Bob Haig tells us that the royalties have been “substantial”.

Going through these 12 volumes shows what a terrific job Bob Haig has done.  There are no less than 251 principal authors, all prominent practitioners, judges, or scholars.  Bob estimates that more than 60 million hours of billable time has been spent in creating this comprehensive work.

Actually, the title is a misnomer.  This first class legal treatise concerns far more than commercial litigation.  It also concerns every other topic of law that commercial litigation may touch upon, including but not limited to civil procedure, criminal law, torts, ethics, administrative law, contracts, insurance, admiralty and maritime law, immigration, pensions, and tax.

By far the most interesting and important sections of this treatise are the last two chapters, Chapter 129 concerning E-Commerce and Chapter 130 concerning Information Technology.

These are topics that are new to the legal system.  However, in the highly computerized age in which we live, these are brand new topics which every lawyer must become familiar with.

The E-Commerce chapter was written by Prof. Herbert F. Schwartz, an adjunct professor of law at the University of Pennsylvania Law School and the New York University Law School.  He is a retired partner of the law firm of Ropes & Gray, LLP.  The co-author of the E-Commerce chapter is James P. Canfield, Esq. a specialist in patent litigation.  He is Of Counsel to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.  E-Commerce turns out to include television, radio and credit cards as well as more sophisticated recent applications, including Mapster, Aimster and Grokster.  Interestingly, Mapster, Aimster and Grokster each have their own sub-chapter.  In an age of Google, Facebook, and Twitter, E-Commerce turns out to be an area of the law where the most growth will take place.  Prof. Schwartz and Mr. Canfield conclude:
“At their heart, most (but not all) federal court disputes about eCommerce are about the extent to which federal law limits one’s ability to use another’s creation.”  (Volume 11, Page 1031).

Another important chapter for the future of our profession is Chapter 130, “Information Technology” by Wayne C. Matus, a lawyer with more than 30 years of experience in Information Technology Law.  As our world becomes more and more dependent on the computer, this chapter will become more and more important in everyone’s law practice.

However, not surprisingly, even this most complicated subject comes back to the very beginning of law school, locating the original written agreement that covers the information technology dispute.  Mr. Matus states the basic principle as follows:
“A primary step in evaluating an IT dispute is assembling the written agreements governing the underlying transaction.  Such transactions – in particular those involving outsourcing are typically heavily documented in multiple, often extensively negotiated agreements, generally under a Master Services Agreement (MSA).”  Volume 11, Page 1075.

A very important chapter for the future of our profession is Chapter 25, “Discovery of Electronically Stored Information” by Judge Shira A. Scheindlin of the U.S. District Court in Manhattan, and Jonathan M. Redgrave, Esq. a Washington, DC expert in electronic discovery.  Given that almost all records of any type are now stored electronically, Chapter 25 is going to wind up as required reading for all lawyers.

Judge Scheindlin and Mr. Redgrave sum up the problem in their chapter:

“It is axiomatic that a potential or actual party to litigation has a duty to preserve documents and things relevant to claims and defenses in the litigation.  The duty to preserve clearly attaches to relevant electronically stored information.  Fulfilling that duty, however, presents special challenges to business organizations seeking to preserve electronic information because destruction of such information can occur through the normal operations of its computer systems.”  Chapter 25, Pages 359-360.

Globalization of trade has blurred national boundaries such that much of the business of our state and federal courts is now the subject of international arbitration pursuant to contractual agreements.
As the years roll on, more and more disputes will be the subject of international arbitration instead of state and local litigation.  We are fortunate that Bob Haig persuaded Judge Paul A. Crotty of the U.S. District Court in Manhattan, and Robert E. Crotty of Bob’s law firm of Kelley, Drye & Warren, LLP to draft Chapter 48, “International Arbitration.”

It turns out that the world’s new court system consists of the following preferred arbitration forums: The International Chamber of Commerce (ICC), the American Arbitration Association’s International Centre for Dispute Resolution (ICDR), and the London Court of International Arbitration (LCIA).

Judge Crotty and Mr. Crotty point out that “International arbitration is now used more and more frequently for resolution of commercial disputes between parties from different countries.  Moreover, the types of disputes referred to international arbitration have more at issue monetarily and are factually and legally more complex.”

In short, Bob Haig’s masterful 12 volume work tells us where we have been, where we are, and most importantly where we are going: E-Commerce (Chapter 129), Information Technology (Chapter 130), Discovery of Electronically Stored Information (Chapter 25), and International Arbitration (Chapter 48).

Bob Haig deserves our profound thanks for assembling this 12 volume work, which should be required reading in every law school, law office, and courthouse.

Estates Update 2014 by David N. Adler

The year in trusts and estates was highlighted by the imposition of new New York State estate tax rules, notably with respect to increased threshold for many resident decedents, coupled with a series of procedural laws primarily expanding the options for fiduciaries in trust and accounting scenarios.

HISTORY
As was noted last year in this column, the federal estate tax rules were solidified at a lifetime maximum exemption amount of $5,000,000 and indexed for inflation (this year – $5,340,000). Further, the concept of portability was also preserved, consisting of the fact that any unused portion of a spouse’s exemption amount, may be utilized by the surviving spouse. In the event that portability is elected on the decedent’s federal estate tax return, up to $10,680,000 could now be passed federally estate tax free by the second spouse to die.

This contrasted heavily with the New York State exemption equivalent of $1,000,000 which had remained static for many years. As such, only the first $1,000,000 operated as an exclusion from New York State estate taxes, over 4,000,000 less than the federal exclusion amount.

NEW YORK ESTATE TAXATION

Effective April 1, 2014, the Governor, in his 2014-2015 budget legislation, made significant changes to New York’s estate tax laws. As this constituted an anticipated, and mid- year immediate change, this Update Article would not have been timely if delivered to the Bar after the first of the year, as was normal custom. Kindly accept the timing of this Article, as an attempt to include important mid-year developments as part of the overall summary of relevant legislation.

Essentially the basic New York exclusion amount (amount exempt from tax) is being gradually increased over a five year period to equal the federal exemption amount. Specifically, from April 1, 2014 to March 31, 2015 the exclusion is $2,062,500; from April 1, 2015 to March 31, 2016 it is $3,125,000; from April 1, 2016 to March 31, 2017, it is $4,187,500; from April 1, 2017 to March 31, 2018 it is $5,250,000. From January 1, 2019 forward, the New York State exclusion is scheduled to be equal to the federal exclusion (approximately $6,000,000) amount.

DETERMINATION OF TAX

One of the purported goals of this legislation was to prevent high net worth individuals from leaving New York State for more tax friendly domiciles. Yet, due to the mechanics of computation of the new New York State exclusion amount, it does not offer the same benefits to those whose estates exceed the state exclusion amount.

Essentially for estates at or beneath the present New York exclusion amount, an applicable credit offsets the computed tax, resulting in a true exemption from New York estate taxes. Yet once the exclusion amount in that year is exceeded (ie. this year-greater than $2,062,500); the credit is adjusted and decreased as the size of the taxable estate increases. The new law contains credit computations for estates within 105% of the exclusion amount, and for those exceeding 105% the exclusion amount.

For estates within 105% of that year’s exclusion amount, a reduced credit is available against the tax, thereby creating a somewhat better tax scenario than existed before the legislation, yet taxability remains.

For estates greater than 105% of that year’s exclusion amount, no credit whatsoever is allowed, essentially voiding any state tax benefit for larger estates. As such, the entire estate is subject to New York estate taxation.

These two larger estate scenarios seem to fly in the face of the purported primary goal of the legislation; the tax benefits decrease, as the estates increase past the new thresholds for exclusion. Further, the federal concept of portability does not apply to New York State. For planners, allocation of assets between spouses to offset the loss of one’s state exclusion amount remains a consideration, in conjunction with utilization of a by pass trust (credit shelter trust), to formally preserve each individual’s exclusion amount.

QDOT

Qualified Domestic Trusts permit the federal marital deduction to apply to a transfer to a NON-US Citizen surviving spouse. Traditionally in order to qualify for this deduction, a federal estate tax return was required to be filed, even if the taxable estate was less than the federal threshold. Now, if no federal return is required to be filed (ie. the taxable estate is less than 5,370,000) there is no requirement to transfer funds to a NON-US Citizen spouse in a Qualified Domestic Trust – they may be transferred outright if said transfers would, in fact, qualify for the estate tax marital deduction on their own.

DECANTING

In 2011, significant revisions were made to the New York State decanting statute (EPTL 10-6.6). Decanting is a mechanism whereby a trustee who had authority/discretion to invade the principal of a trust may utilize said principal in creation of a new trust.

This legislation was discussed at greater length in this column at the time of its inception. Certain technical clarifications were made over the past year to that statute, significantly broadening fiduciary power. For example, a trustee with unlimited discretion to invade trust principal could decant to a new trust excluding all successor or remainder beneficiaries of the original trust. The interest of a discretionary income beneficiary of the original trust may be continued in the new trust. Finally, the decision to decant requires a majority determination of trustees so acting, not a unanimous one.
ACCOUNT OF FIDUCIARIES

Prior law provided that a resigning fiduciary must formally settle his account judicially (SCPA§715,716). The new law permits the Court to approve an informal settlement of the resigning fiduciary’s account, while preserving the Court’s ability to compel a judicial accounting.  Thus the option for an easier, less formal transition between fiduciaries now exists.

QUEENS COUNTY

Our seminar last year focused exclusively on primary and intermediate level estate planning. It included an analysis of the new federal estate tax law, along with the application and benefits of Credit Shelter Trusts, Qualifying Terminable Interest Trusts and Grantor Retained Annuity Trusts in light of the new law. We thank moderator and Surrogate Peter J. Kelly, and speakers John McFaul and David Schoenhaar for excellent presentations. It is anticipated that our fall seminar shall address fiduciary responsibility in a variety of proceedings. I trust you all had an enjoyable summer.

Books At The Bar by Howard L. Wieder

With origins dating back to 1478, Oxford University Press (“OUP”) is the world’s largest university press with the widest global presence. OUP’s Global Academic Publishing program spans the entire academic and higher education spectrum, including a wide array of scholarly and general interest books, journals, and online products.  OUP has published a multitude of award-winning books, including 15 Pulitzer Prize winners.  OUP has the highest standards for academic and professional works.

A review of www.oup.com will review numerous titles that are of great interest to the practicing lawyer.  I have chosen seven titles that are of interest to lawyers and litigators, five of them in the newly emerging field of international commercial arbitration.  The field of international commercial arbitration especially rose to prominence with the publication in 2012 of S.I. Strong’s “INTERNATIONAL COMMERCIAL ARBITRATION:  A GUIDE FOR U.S. JUDGES,” a 152-page handbook that is available online at www.fjc.gov.  I invite you to stroll through the OUP web site at oup.com for many titles in your particular field.  Here are my favorites chosen for this Spring-Summer 2014 column:

THE NEW YORK RULES OF PROFESSIONAL CONDUCT WINTER 2012
RULES, COMMENTARY, AND PRACTICE AIDS
Edited by New York County Lawyers’ Association Ethics Institute
New York Rules of Professional Conduct
$225.00
Hardcover
23 November 2012
1552 Pages
7 x 10 inches
ISBN: 9780199855711

    Increasingly, courts are citing and relying on the new New York Rules of Professional Conduct.  They took effect in April, 2009 and have binding force.  They are not precatory.  So whether your opponent is guilty of misleading a tribunal or is involved in an impermissible conflict of interest in representation, this book is the Bible in the field. The Fall 2012 edition includes the latest NYSBA Commentary and Ethics Opinions, including the effect of social media on today’s law practice, permissible legal marketing services, legal fees, contingency fees, and feesplitting arrangements, and maintaining client confidentiality.

Highlights:

Authoritative commentary provides much needed clarity on the transition to the Rules of Professional Conduct which govern attorney conduct in the State of New York

Cases and opinions have been fully updated to reflect the adoption of the Rules of Professional Conduct

Where portions of the prior Code are retained in the new Rules of Professional Conduct, Dean Mary Daly’s commentary to the Code is retained for historical reference

Commentary and practice notes address issues specific to specialty practice areas

Finding aids, including a cumulative index, table of rules, table of cases, and tabs have been added for ease of use and accessibility

THE NEW YORK STATE CONSTITUTION, SECOND EDITION
Peter J. Galie and Christopher Bopst
Oxford Commentaries on the State Constitutions of the US
$150.00
Hardcover
01 June 2012
446 Pages
61/8 x 91/4 inches
ISBN: 9780199860562
Also Available As:  Ebook

Highlights:

Includes an account of New York’s constitutional evolution, allowing readers to see the progression of legislation in its historical context

Provides a provisionbyprovision commentary of the state constitution of New York and includes analysis on the state’s current constitution, providing an essential reference guide to understanding this important document

Extensive topical and historical bibliography, including online sources, enables readers to easily find source materials and documents

The only book to provide the history and uptodate commentary on every aspect of New York State’s constitution

New to this Edition:

Includes constitutional amendments adopted since the publication of the first edition in 2011.

Provides an accurate analysis of recent court decisions that have altered or expanded the meaning of the New York State constitution

DAMAGES IN INTERNATIONAL ARBITRATION UNDER COMPLEX LONGTERM CONTRACTS
Herfried Wöss, Adriana San Román Rivera, Pablo Spiller, and Santiago Dellepiane
$260.00
Hardcover
392 Pages
9.7 x 6.7 inches
ISBN: 9780199680672

Highlights:

The first detailed coverage of legal, financial, and economic implications of damages in international arbitration.

Clarifies how different rules of law on damages and loss of income (UK, US, France, Mexico, Germany, CISG, and UNIDROIT Principles) are applied to damages claims for breach of complex longterm contracts including privatelyfinanced infrastructure projects and publicprivate partnerships.

Uses a stepbystep approach for the application of the butfor method and its relationship to loss, causation, and the measure of damages.

Refers to best international and national practices for the reconstruction of the hypothetical course of events to solve the legal, financial, and economic issues involved in the determination and quantification of damages claims and the proper reasoning of arbitral awards.

Makes extended reference to high profile ICC, UNCITRAL, and ICSID cases and unpublished awards in which the authors were involved.

PRINCIPLES OF INTERNATIONAL INVESTMENT LAW
Second Edition
Rudolf Dolzer and Christoph Schreuer
$68.00
Paperback
19 December 2012
530 Pages
9.2 x 6.1 inches
ISBN: 9780199651801
Also Available As:  Hardcover or Ebook

Highlights:

Provides a unique overview of the principles shaping the international law of foreign investment, as they have been defined in investment treaties and by the jurisprudence of international tribunals.

Analyses the dispute settlement mechanisms at work in State v. State and Investor v. State Arbitration.

Leading introductory text for students on international investment law courses, or for practitioners new to the area.

Fully revised and updated to trace the evolution of the jurisprudence and doctrinal opinion since 2008, with added coverage of the BITs of EU Member States

INTERNATIONAL COMMERCIAL ARBITRATION IN NEW YORK
Edited by James H. Carter and John Fellas
$75.00
Paperback
27 September 2013
770 Pages
7 x 10 inches
ISBN: 9780199938612

Highlights:

The editors are two wellrespected arbitration experts, who have gathered together the authorities in the field to address the most important topics for a lawyer involved in commercial arbitration in New York

The first comprehensive, uptodate source of vital information for commercial arbitration practitioners in New York, merging discussion of international commercial arbitration with the specific intricacies of the New York arbitral process and courts

Provides arbitrators with the necessary information and expert advice to help effectively pursue a case, being especially helpful to newcomers looking for an exclusive, insider look at the arbitral landscape of New York

CHOICE OF VENUE IN INTERNATIONAL ARBITRATION
Edited by Michael Ostrove, Claudia Salomon, and Bette Shifman
$280.00
Hardcover
09 March 2014
576 Pages
9.7 x 6.7 inches
ISBN: 9780199655717

Highlights:

The first book to provide indepth coverage of strategic considerations in choosing the seat of an arbitration

Comparative analysis of twenty venues, allowing evaluation of every major global seat

Written by a team of expert contributors with a wealth of experience in their regions

CLASS, MASS, AND COLLECTIVE ARBITRATION IN NATIONAL AND INTERNATIONAL LAW
S.I. Strong
$185.00
Hardcover
22 October 2013
432 Pages
61/8 x 91/4 inches
ISBN: 9780199772520

Highlights:

This is the first book to deal comprehensively with class, mass, and collective arbitration in a comparative context (or with any of these procedures individually).

Offers a detailed comparison of the different types of specialized rules on largescale arbitration, including some that have not yet been discussed in legal literature.

Discusses how largescale arbitration is likely to develop in new jurisdictions, either as an ad hoc mechanism or under nonspecialized arbitral rules.

Provides numerous new authorities including cases and statutes that have not previously been discussed in legal literature

HOWARD L. WIEDER, the writer of both the “Culture Corner” and “Books at the Bar” columns, is a Principal Court Attorney in State Supreme Court, in Queens County, New York.

Marital Quiz by George J. Nashak Jr.

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

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

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

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

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

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

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

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

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

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

Recordings or Reporters? by Jim Pieret

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

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

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

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

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

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

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

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

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

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

Roll Call by Diana Szochet

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration Detainers by Joseph F. DeFelice

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

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

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

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

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

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

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

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

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

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

A Message From The President by Joseph Carola, III

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

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

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

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

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

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

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

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

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

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

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

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

Factual Situation

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

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

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

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

New Law

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

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

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

Prior Law

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

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

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

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

Solution?

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

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

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

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

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