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

INTRODUCTION

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

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

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

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

Bonding the Lien

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

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

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

Summary Discharge
Resulting from Imperfect Filing

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

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

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

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

Lien Law Section 59 Demand

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

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

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

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

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

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

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

CONCLUSION

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

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

Trials and Tribulations: The Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Our Second Circuit gave us some hope:

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

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

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

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

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

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

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

Family Law Annual Review by Michael & David Dikman

MAINTENANCE LAWS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRELIMINARY CONFERENCES

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

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

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

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

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.