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Mary Summer 2009 News - Bronx County Bar Association


									                           THE ADVOCATE
                           THE                   BRONX COUNTY BAR ASSOCIATION
  Summer 2009                                             Serving The Bronx County Bar & Bench

     BOARD OF DIRECTORS                                         OUTGOING PRESIDENT’S MESSAGE
           2009 - 2012                                          Dear Colleagues and Friends:
Carlos M. Calderon                                                My term as President of the Bronx County Bar
President                                                       Association has come to an end, and as I reflect
Lucille M. Barbato                                              upon an amazing year that passed so quickly, I begin
                                                                this message with what comes to mind first and
Chairperson of the Board                                        foremost: Thank You!
Christopher M. DiLorenzo
First Vice President                                            I am most appreciative of having been given the
Robert H. Wolff                                                 opportunity to serve as your President, a position I
                                                                held in the highest regard throughout my term. I know
Second Vice President                                           that every moment was an honor and a privilege,
Michael A. Marinaccio                                           and I will treasure this time in my career as one of
Secretary                                                       the best in my life. But I am not only grateful for having
Roberto Laracuente                                              held this position, I am especially thankful to all of
Treasurer                                                       you who assisted in making this year the success
                                                                that it was. So, I dedicate this Message and this
Steven J. Baker                                                 Advocate to you. In this issue, you will find pages of
Financial Secretary                                             photographs that not only highlight the many events that we held this past year, but also
DIRECTORS                                                       serve to honor you for actively participating in them and supporting our organization.
                                                                These photos should also help to remind us that even in these toughest of economic
2007-2010                                                       times we must continue to work together to keep our Bar Association alive.
David W. Barnhard
Michael J. Barsky                                                  We are proudly known as the “The Friendly Bar Association.” We not only provide our
William K. Peterman, 3rd                                        members with necessary benefits and services, but we also supply a valuable support
                                                                system. Our library in the main building, and our new Attorney Lounge in the Bronx Hall
Harold Weisman                                                  of Justice, are where we hang our coats, prepare our cases, do legal research, use the
Eric Wughalter                                                  computers, copy and fax machines, and conduct our work. It is also where we congregate
2008-2011                                                       and commiserate with our colleagues and friends. We share information, cases of
                                                                interest, what’s going on in our lives and in the courthouse community, and we discuss
Daniel Chavez                                                   our trials, motions and important decisions. We assist each other, connect and network,
Richard G. O’Reilly                                             empathize and identify, and share in each other’s victories and defeats. By this
Corey A. Sokoler                                                interaction, we all learn. And, through our Association, we foster friendships and
Sergio Villaverde                                               engender personal and professional growth. These are among the many reasons why
F. Frank Vozza                                                  we should continue to work together to sustain the integrity and posterity of our
Sam M. Braverman                                                   Our teamwork begins with all of us remaining members, as well as encouraging
Anna M. Cabrera                                                 others to join our great organization. We know that all are affected by the present poor
                                                                state of our economy. Indeed, this also includes our Bar Association. While membership
Daniel D. Cassidy                                               numbers have not been diminished, the costs and expenses of running our organization
Peter T. Ridge                                                  have continued to rise. For this reason, although we know that times are tough, we ask
Sharon T. Rosenthal                                             you all to remain active members, renew your membership, become a Sustaining
                                                                Member or a Champion Member (a new category of membership added this year), or
Table of Contents                                   Page        join now if you are not a member. If you are still not sure if you should do so, perhaps by
                                                                reading on and reviewing our work in this past year, as well as looking ahead, you will
Outgoing President’s Message .......... 1                       reconsider.
Winning Through Integrity ................. 4
Decisions of Note .................................. 5            We began the 2008/2009 term with our Installation Dinner at the Marina del Rey
                                                                where, on a warm and sunny evening by the water in one of the loveliest of settings in
Words of Wisdom ................................ 8              our county, we mingled among colleagues, judges and distinguished guests. Those in
Sustaining and New Members ............. 8                      attendance and who regularly support our Association, included Honorable
Obituary .................................................. 9   Justice Jonathan Lippman, then Presiding Justice of the Appellate Division First
                                                                Department and now Chief Judge of the Courts of the State of New York; Honorable
Navigating the NYC Civil Court .......... 11
                                                                                                                                       (Continue on Page 2)

                                                       THE ADVOCATE/Bronx County Bar Association Summer 2009
Carmen Ciparick, Justice of the Court of Appeals; Honorable              and other organizations to learn more on how we may help
Luis Gonzalez, now Presiding Justice of the Appellate Division           the numerous Bronx residents faced with losing their homes
First Department; Honorable Douglas McKeon; Presiding                    through mortgage foreclosure. If you are interested in assisting
Justice of the Appellate Term, and many Bronx                            in these matters, please contact our office or Lester Rodrigues,
Supreme, Civil, Criminal, Family & Housing Court Judges,                 Chair of the Pro-bono Committee.
including our Chief Administrative Justices of the Supreme
Court, Civil and Criminal Divisions, Honorable Barry Salman                 Our Board of Directors were also active in writing letters to
and John Collins, as well as Honorable Laura Douglas,                    our Governor and other officials on matters that were important
Supervising Judge of the Civil Court, Civil Division, Honorable          to our members and courthouse community, including the
Eugene Oliver, supervising Judge of the Criminal Court, and              subject of the appointment of the new Chief Justice of the Court
Honorable Lee Holzman, Chief Justice of the Surrogate’s                  of Appeals, the shameful lack of appointments of Bronx
Court. On that night, we gave awards to our 50 year anniversary          Judges to the Appellate Division, First Department, and the
members, and for the very first time, we also recognized three           failure to give pay raises to our judges.
60 year members, Muriel and Emmanuel Kessler and James
Kilsheimer. We also awarded our Kenneth Kase Memorial                       From September 2008 through June 2009, thanks to
Scholarships to the 2 winners of the Thurgood Marshall Junior            enormous efforts on the part of the Co-Chairpersons of our
Mock Trial competition (an annual Spring event that involves 7th         evening and lunchtime CLE Committees, Hugh Campbell,
and 8 th graders in local schools and takes place in our                 Robert Shaw and Corey Sokoler, as well as many Committee
courthouse, with the Bronx Bar as the primary sponsor). We               Chairpersons and volunteer speakers and judges, our
also presented our President’s Award to Bronx Supreme Court              Association held numerous important lunchtime and evening
Justice Sallie Manzanet-Daniels, who graciously accepted with            CLE seminars. In the Fall, these courses included The
a powerful, eloquent and inspiring speech. Thanks to the efforts         Summary Jury Program, City Part Practice, Discovery with
of our Dinner Committee and Co-Chairpersons Joyce Y.                     Incarcerated Parties, Update on Elder Law, Post Conviction
Hartsfield and Alan B. Friedberg, it was a proud and memorable           Remedies, and Cross Examination of DWI Breathalyzer. In
occasion, and one that I will never forget.                              January, we held our annual 4 credit Ethics Update, and in
                                                                         February we successfully launched our first 4 part, 12 credit
   That dinner was followed by another unforgettable evening             evening series on Trial Advocacy, where young and seasoned
at Maestro’s in November when we roasted two of our veteran              attorneys attended, and many well-respected attorneys and
members, Joseph Carrozza and Harold Weisman. Our Master                  judges shared their knowledge and experience on
of Ceremonies, Steven LoPresti, worked very hard in preparing            how to succeed at trial. Our Spring evening courses were
for this event, and he, along with our Roasters, Mike Marinaccio,        comprised of L&T Practice and Premises Liability, and our
Marvin Ray Raskin, Murray Richman, Lew Alperin, Roy Schwartz,            lunchtime series from January through June included: How
Harold Gordon, Neil Veilleux, Robert Wolff, Steven Baker and             to Advise Your Client in Criminal Matters, Criminal Law Update,
Alan Friedberg, assisted in not only paying tribute to two special       Everything You Wanted to Know About Divorce but Were Afraid
men, but in also providing a fun-filled night. Thereafter, in            to Ask, How to Attack a Search Warrant, Matrimonial Practice,
December, we hosted our annual Holiday Party and Toy Drive               The Effect of the Criminal Plea on Immigration Status, How to
in our Library, where we also held a memorial service for our            Get Out of Jail Early, Forensic DNA, and The New Jury Rules.
dear friend, loyal member and Officer, the late Charlie Keeney.
At that event, in the company of Charlie’s widow, Sallie, and               In the Winter, our Membership Committee, co-chaired by
son, Ryan, we unveiled a bronze plaque that bears likeness to            Carlos Calderon and Joyce Randazzo, began work on creating
Charlie’s sweet smiling face, and it remains hanging in our              a computer based Membership Directory. Letters were sent
Library in his honor and memory. It was a bittersweet time, but          to all of our members requesting information, and a copy of
one where we enjoyed the camaraderie of colleagues and                   that letter may be found on our web site. If you have not yet
friends, and we also donated hundreds of gifts to the Toys-4-            responded, please do so now as you renew your
Tots charity. During that time, we also held our first Suit Drive        membership. The sooner we have everyone’s information, the
coordinated by our director, William K. Peterman, in                     sooner we may publish our Directory so that all may benefit
conjunction with Bronx Supreme Court Justice Nelson Roman,               through intra-member referral. This Committee continuously
collecting clothing for The Fortune Society and performing               met for the purpose of finding ways to increase membership
another worthwhile public service.                                       and improve member benefits and welcomes your input to
                                                                         assist our Association in accomplishing these goals. We also
   Our Association also became involved in other worthy causes           created the new Young Lawyers Committee, chaired by Dion
for the benefit the Bronx community, including The CLARO                 Sankar, for the purpose of newly admitted attorneys being able
Program. The Civil Legal Advice and Resource Office (“CLARO”),           to network and meet.
staffed and run by bar associations, legal services providers,
and local law schools, responds to the needs of unrepresented              Our Criminal Courts Committee, Co-chaired by Marvin Ray
debtors sued by their creditors in NYC Civil Court by providing          Raskin and Christopher DiLorenzo and our Matrimonial
limited legal advice on self-representation strategies. On June          Committee, chaired by Sergio Villaverde, began conducting
24, 2009, our Association co-sponsored a 3 hour workshop on              surveys on the Judges of the Criminal and Family Courts. Past
the new Bronx CLARO program, resulting in those attendees                similar surveys had proven beneficial for the improvement of
who volunteer in assisting 3 debtor-defendants receiving 3               our Bronx judiciary, and we intend to continue to make such
free CLE credits. On July 9, 2009, the CLARO Program began               an impact through this type of work. Similarly, our Civil Court,
in the Bronx and will continue to take place every Thursday              Criminal Courts, Housing Court and Matrimonial Committees
between the hours of 4:00 PM and 6:00 PM in the basement of              met regularly and frequently consulted with attorneys and
the main courthouse. For more information, please see the                judges in their respective areas and, in reviewing the Parts
flyers posted throughout the courthouse and available in the             and meeting with the Administrative Justices on a regular
library. In addition to this important public service, our               basis, rendered suggestions on what needed improvement
Association is continuing to work with Bronx Legal Services                                                         (Continue on Page 10)
                                         THE ADVOCATE/Bronx County Bar Association Summer 2009

       has been established for a Bronx law student showing academic
       excellence and financial need. Attention will be also be paid to
       athletic achievement since the competitive spirit was an
       important part of Judge Bernheim’s life.
       No contribution is too small to perpetuate this worthy cause
       honoring the memory of an outstanding Bronx jurist, colleague
       and friend of many. Please make donations payable to the
       Bronx County Bar Endowment Fund (851 Grand Concourse,
       Room 124, Bronx, New York 10451).
       Information about the scholarship is available for applicants at
       the Bronx County Bar Association’s website,

           Installation Dinner 2008

THE ADVOCATE/Bronx County Bar Association Summer 2009
                            WINNING THROUGH
                             INTEGRITY AND                              party’s. Compelling signals inevitability: that your argument
                                                                        will prevail, either because it is correct on the law and equities
                            PROFESSIONALISM                             or because an appellate court will reverse the judge who
                              By Gerald Lebovits                        decided against you. Lawyers’ presentations and how they
                        Winning is not about being eloquent.            conduct themselves are crucial in convincing judges to rule
                        The eloquent talk over the heads of             for their clients.
                        busy and impatient judges and juries.                     Integrity and professionalism is not only about
                        Winning is not about being logical.             winning cases. It is also about winning in the long run.
                        Logicians fail to connect with the hearts       Being seen as professionals and gaining good reputations
of decision makers who seek wisdom, not geometry.                       are essential to successful lawyering.
Winning is not about good looks or looking good. Many                             Dealing with unprofessional lawyers is unpleasant.
successful lawyers would come in last in a beauty contest.              They are bullies who argue not about emotional facts but
Winning is, rather, about projecting sincerity without                  simply emotionally. Lawyers should know how to disagree
vouching for a client’s credibility or the merits of a client’s         without allowing acrimony. The court and colleagues are
case. Winning is about delivering on promises without                   more likely to listen and accommodate lawyers perceived
overpromising. Winning is about zealous representation                  as credible and well-mannered professionals. A lawyer who
without being a zealot.                                                 fights over small, irrelevant points will lose those points
          I learned about advocacy when I no longer wanted              anyway, and the judge will recall in the next case the
or needed to be an advocate. I learned about advocacy when              aggravation the lawyer caused. To win with integrity and
I became a judge. I discovered that winning is about the                professionalism, lawyers must be transparent. They must
messenger, not just the message and the media.                          not mislead or use tricky arguments. They must cooperate
          On my first day as a judge, a lawyer representing a           with other lawyers, court personnel, and judges. They must
landlord gave an unrepresented tenant a hard time in a                  also require those under their supervision to behave the
simple nonpayment-of-rent case. The lawyer demeaned the                 same way.
tenant, spoke over the tenant, and ridiculed the tenant’s                         The way to win is to be taken seriously by opposing
defenses. The lawyer had the good argument on the facts                 counsel, clients, and judges. Lawyers are taken seriously
and on the law, and the lawyer eventually won. But I wanted             when, in addition to representing their clients professionally,
to rule for the tenant. I gave the tenant as much time as he            vigorously, and with undivided loyalty, they also do pro bono
needed to make the best argument he could. I was solicitous             work and are involved in bar-association and community
to a fault to the tenant and his narrative. The lawyer put me           projects.
in a position in which ruling for his client meant as ganging                     Here are 15 suggestions to guide lawyers in winning
up on a helpless pro se. Instead of making it easy for me to            with integrity and professionalism.
rule for his client, the lawyer made it hard. The lawyer made                     (1) Be civil. Lawyers who are civil comply with the
me bend over backward to help his adversary.                            profession’s accepted practices. Civility means being polite.
          Had the lawyer been civil and professional, I would           Lawyers do not need to forgo civility to be dogged, persistent
have ruled for his client in a heartbeat — and felt good                advocates for a cause. Good lawyers do not whine or engage
about it. By being uncivil and unprofessional, the lawyer               in histrionics and hissy fits. On the contrary, lawyers who
made me feel rotten ruling for his client. By disrespecting             aggressively defend their clients’ best interests while being
the pro se, the lawyer disrespected the fair administration             well-mannered and charming are likely to win points with
of justice — and me, personally.                                        the judge, not lose them. Lawyers who conduct themselves
          What happened on my first day as judge occurs                 civilly are not rude. They do not engage in reprisals. They
every day in every American courthouse. It occurs when                  treat people like busy professionals. They respond only
lawyers are accusatory, emotional, and hostile. It occurs               when necessary, and never in kind. Professionals never use
when lawyers pound on the table and not on the evidence.                vulgar or belittling language. Courtroom antics impress and
It occurs because some lawyers do not realize that civility             influence no one. They distract. Ill feelings existing between
and professionalism, not aggression and over-lawyering,                 clients, particularly during litigation, should not affect lawyers
win cases.                                                              in their conduct toward opposing counsel. Civility requires
          Being civil and professional does not mean being a            lawyers not to obstruct. Civility requires lawyers not to attack
cuddly lap dog or a rabid pit bull. Being civil and professional        judges or opposing counsel personally or make false
means being satisfied with the practice of law; earning                 accusations about honesty, integrity, or industry. Civility
money and respect in our chosen, honorable profession;                  requires lawyers not to disparage their own clients — as if
and not dying young of ulcers and heart attacks. Being civil            doing so will score points with the judge.
and professional means imparting trustworthiness and                              (2) Be honest. Honesty is not only the best policy;
qualifications or, said another way, winning through integrity.         it is the only way to win. Lawyers who cite reversed or
          Lawyers must master the art of persuasion.                    overruled principles will lose the court’s respect. Plagiarizing
Persuasion requires professionalism and integrity, not                  — even lengthy boilerplate — is another way to be
merely good arguments. The Greek rhetoricians called it                 discredited. Lawyers should always cite the sources they
projecting “ethos.” Winning comes down to persuading the                use and use what they cite. They must not pass off a
judge that your argument is more compelling than the other
                                                                                                                      (Continue on Page 6)

                                         THE ADVOCATE/Bronx County Bar Association Summer 2009
                                          DECISIONS OF NOTE
         Two recent opinions by Justice Paul Victor, Supreme Court Bronx County, are worthy of attention
to civil practitioners: Vidal v. Maldonado, et al., (decided December 8, 2008) and Tavarez v. Hill, et ano,
(decided January 5, 2009).
         In Vidal, an injured motorist sued for injuries sustained in an automobile accident. After the
defendants moved for summary judgment, the court found that defendants established their prima facie
entitlement to the requested relief but that the plaintiff raised genuine material issues in opposition.
Accordingly, the motion was denied. Following a lengthy and thorough analysis of the applicable law and
facts, Justice Victor noted that”...although the affirmation of plaintiffs doctor does not provide numerical
percentages or degrees of range of motion loss, he does...find deficits in the ranges of motion as compared
to normal, and his conclusions are supported by the existence of trigger points (a form of spasm) and
another objective test....”Based upon the factual record before it, the court could not conclude, as a
matter of law, that plaintiff’s injuries and limitations were “mild, minor or slight. “The court also noted its
displeasure with motions and responses that “have become almost assembly-line, ‘cookie cutter’
         The second case, Tavarez , also involved a motor vehicle accident and a motion by defendants for
summary judgment. Justice Victor noted that the plaintiff driver as well as the three passengers in his car
(who joined in the action) were all represented by one attorney. The case (870 NYS2d 774) discusses
the law involving conflicts of interest and representation by one attorney of multiple plaintiffs and by one
attorney of multiple defendants. As the court noted (referring to a Court of Appeals case, Greene v. Greene,
47 NY2d 447, 418 NYS2d 379), “...disclosure alone does not resolve the conflict issues created by dual
representation.” Also, client consent alone is not a defense and is, as Justice Victor noted, “always
hazardous.” If practitioners are faced with such a situation, it is also advisable to re-visit the Code of
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                               THE ADVOCATE/Bronx County Bar Association Summer 2009
dissent or a concurrence for a holding. The best lawyers do            poorly on the lawyer’s skill as an advocate and jeopardizes
not cheat the system or cut corners. Lawyers should not                the client’s claims. In addition to the ethical requirements
falsely hold out the possibility of settlement to adjourn              that lawyers cite adverse binding precedent and statutory
discovery or delay trial. They are prohibited from helping a           authority, citing adverse authority demonstrates that the
client engage in unlawful or fraudulent conduct. Lawyers               lawyer is reasonable and honest and offers an opportunity
should never try to hide. They win by stating the facts                to explain why the authority is not binding or why the judge
accurately and then having good explanations and evidence              should overrule it. A thorough review of the record,
to prove their conclusions.                                            accompanied by accurate and precise references to the
          (3) Be fair. Know the rules: Respect them and play           record, adds credibility to the client’s claims. It shows that
by them. A game can be won only if the winner plays by the             thought went into the lawyers’ work. Going outside the
rules. The practice of law is no different. Lawyers must use           record is risky; doubt will fall upon the lawyer who gets
tactics consistent with these rules. Professionals know how            caught. Professionals present the other side’s argument
best to represent their client within these boundaries of              neutrally and then contradict it. Using this technique
conduct. They respect precedent and follow court rules.                suggests that the lawyer is honest, but really it sets up a
They do not cheat, exaggerate, fudge, or overstate — with              straw man for the lawyer to contradict the other side’s
writing style or with fact or law. They serve documents fairly;        claims. Being candid with the court about facts adverse to
they do not take advantage of the opposing counsel’s                   the client’s position also gives credibility to the lawyer’s
absence from their office or serve purposely to inconvenience          arguments. Making unverified statements might come easily,
their adversary. Nor should lawyers submit papers to the               and often they go unchallenged, but bluffs when called lead
court without timely giving copies to opposing counsel.                to a loss of credibility.
Professionals know that if they act fairly, opposing counsel                     (7) Be consistent. Consistency is key. Being
and judges are likely to respond the same way. Most courts             consistent means always acting with integrity, not only when
have rules on how legal documents should be drafted and                helpful. Consistency demonstrates that lawyers are genuine
what they must include. Narrowing the margins or changing              and not deceitful. Consistent lawyers are interested in
the font of the brief is a cheap and obvious way to meet the           improving their skills. As time permits, they take continuing-
page limit. Professionals comply with technical rules, but             legal-education courses. Lawyers’ reputations are linked
they do not complain when opposing counsel violates some               to the consistency of their actions. It takes one negative to
hyper-technical rule that the court has the discretion to              taint the positive. Judges are observers; they will notice if
ignore and will ignore.                                                lawyers act professionally only when it helps them, and
          (4) Be courteous. Treat others like you would like           judges will be less likely to accommodate them.
to be treated. Professionals are considerate when interacting                    (8) Be reasonable. The best lawyers use good
with their client, opposing counsel, and court staff. Courtesy         judgment and common sense. Lawyers do not attach unfair
means not cross-talking in court. Good lawyers address                 or extraneous conditions to an opponent’s request for an
only the court, and they let others finish speaking before             otherwise legitimate and appropriate extension of time. They
they start speaking. Courtesy includes returning phone calls           do not prolong arguments or make motions designed to
promptly, answering correspondence quickly, cooperating                harass. They avoid unnecessary motions or judicial
with opposing counsel on calendar conflicts, and notifying             intervention. They try to negotiate in good faith and reach
colleagues of changes. The first request for an extension of           an agreement with the other party when possible and when
time to respond to a pleading should ordinarily be granted             it is in their client’s interest to do so. They allow time to
as a matter of courtesy. By agreeing to an adjournment,                resolve disputes or disagreements and impose meaningful
lawyers know it will benefit them when they themselves                 deadlines in light of the nature and status of the case.
ask for an adjournment. Courtesies affect how a lawyer is              Negotiating reasonably can lead to an agreement that
perceived.                                                             satisfies both sides — an outcome that might elude the
          (5) Be respectful. Respect and you shall be                  parties if the judge decides the matter. Professionals are
respected. The best lawyers do not demand respect. They                not pushovers; they stand their ground on large points but
earn it by continuously showing consideration for their                they know when to concede small points. Conceding when
colleagues and clients. They are never rude. Engaging in               appropriate allows lawyers to concentrate their efforts on
irrelevant or ill-founded conduct exemplifies a lack of respect.       important arguments while appearing reasonable and fair.
Lawyers should not tell judges that their disingenuous                           (9) Be clear and concise. Being clear and concise
adversaries egregiously mischaracterize the evidence.                  in writing and orally enhances the odds of getting the
Instead of offering negative opinions, they should offer the           message across. Vague writing affects lawyers’
grounds for their conclusions. Nor do good lawyers gossip              effectiveness and credibility. The best lawyers limit the
about their colleagues’ personal and professional lives.               number of arguments to their strongest: the ones most likely
          (6) Be credible. Credibility is hard to earn but easy        to succeed. But they address their weakest, most vulnerable
to lose. To be considered credible, a lawyer must be worthy            contentions. Doing so ensures that they are prepared to
of confidence. The best lawyers never wing it; they are                answer questions from the judge about those weak
prepared. To avoid under-preparation, the best lawyers do              arguments and demonstrates their honesty. More
their homework and organize. Poor research wastes the                  importantly, this allows them to contradict the other side’s
court’s time and harms the client. Failing to find controlling         arguments: They know where the opposing counsel’s strong
or persuasive cases and statutes roughly on point reflects
                                                                                                                  (Continue on Page14)
                                        THE ADVOCATE/Bronx County Bar Association Summer 2009
              Thanksgiving Roast

                  Annual Dinner

THE ADVOCATE/Bronx County Bar Association Summer 2009
                               Sustaining Members
                     SEPTEMBER 2008 - FEBRUARY 2009

Gonzalez, Hon. Doris M.                Amer, Harry                                Krieger, Harvey
Mendelson, Barry                       Dearie, John C.                            McCarthy, Thomas F.
Gomez, Manuel                          Peister, Joel                              Katter, Ronald
Kay, Elliot S.                         Chiclacos, Charles                         Zuckerberg, Joel
Levine, Howard                         Rodriquez, Jose                            Cottler, Steven B.
Randazzo, John                         Kreinces, Matthew                          Hinkson, Hon. Elbert
Kremins, Michael                       Pillersdorf, Gary B.                       Alberts, Francis T.
Marengo, Christopher                   Candilaros, William                        Chavez, Daniel
Campbell, Hugh W.                      Kaufman, Hon. Stephen                      Fritz, Stephen A.
Schlitt, Carol                         Farensbach, Jan V.                         Bloch, Mitchell R.
Gomez, Manuel                          Campson, Paul                              Peck, Gregory

                            Welcome New Members
                     SEPTEMBER 2008 - FEBRUARY 2009
Thwaites, Daniel                       Mysliwiec, Aaron J.                        Santiago, Jose
Lungren, Kurt                          Spodek, Todd                               Strazza, Anthony
Jackson, Stacey M.                     Greenfield, David E.                       Tarnok, Christopher
Johnson, Paul S.                       Cornett, Delco                             Torres, Michael
Guerrero, Luis                         Bosco, Damien                              Benintendi, James
Gordon, Steven                         Kelly, Ingrid G.                           Duroseau, Alix
Manus, Mark                            Guerrero, Luis                             Hinds, Timothy
Blake, Jessica                         Rivera, Margie M.                          Kirchoff, Colleen
Aviles, Elizabeth                      Marshall, Delsia                           Newman, Hon. Barbara
Simon, Jerry                           Zelenetsky, Ava                            Wake, Ruby
Goings, La’Teea                        Solow, Alan                                Hedayati, Al
Sporn, Philip                          Goldberg, Elena                            Camacho, Andrea
Savedoff, Laurence                     Fino, Paul A.                              Mulholland, Kathleen
Eskin, David                           Griffin, Timothy G.                        Tuffy, Joseph
Russell, Laura                         Johnson, Jamal                             Calvacca, Lynn
Pollack, Joshua D.                     Martindale, Conway E.                      Geltman, Gail
Roland, Lynn R.                        Meyerson, Harold                           Newman, Kyle
                                                                                  Brennan, Patrick

                                  WORDS OF WISDOM

 Although it is not likely that a criminal will carefully consider the text of the law before
 he murders or steals, it is reasonable that a fair warning should be given to the world in
 language that the common world will understand, of what the law intends to do if a
 certain line is passed. To make the warning fair, so far as possible the line should be clear.

 Hon. Oliver Wendell Holmes, Jr.
 (McBoyle v. United States, 283 U.S. 25, 27 [1931])

                          THE ADVOCATE/Bronx County Bar Association Summer 2009
                                      Bronx County Bar Association
                                        SAVE THE DATE
                        Wednesday, September 16, 2009
                                                    for the
                                        Presentation of
                                2009 PRESIDENT’S AWARD
                                 Honorable Luis A. Gonzalez
                                       Presiding Justice,
                                 Appellate Division,1st Dept.
                              2009 Outgoing President’s Award
                                    Lucille M. Barbato, Esq.
                               Awards to Fifty-year Honorees
                              Thurgood Marshall Scholarships
                      Justice Gerald A. Esposito Memorial Scholarship
            Watch for information in your mail and on our website
            Carlos M. Calderon                                       Robert A. Shaw
                 President                                         Dinner Chairperson

                                     In Memory Of Honorable Jerry Crispino
                                                               by Joseph Ruhl,Esq.
                          Jerry Crispino was a well-known and highly respected attorney, admired city council member
                        and esteemed Judge, whose impressive career spanned more than 50 years.

                          Over the years, a lot has been written about Jerry’s many noteworthy accomplishments.
                        What the articles and reports cannot convey is just how much he truly loved the law and the
                        Bench, and how proud he was to have served the Bronx and the City. He was not only a
                        successful practitioner, but an ardent advocate for justice and supportive mentor to young
                        lawyers and judges.

    I had the privilege of working with Jerry at Hudson Valley Bank, where he served as a consultant to our Attorney
Banking Group. As our friendship grew, Jerry would recount many stories relating to growing up in East Harlem, his
time in the City Council and on the bench. He reminisced fondly about his days at City Hall when there would be a
stalemate during the budget process and they would work through the night in order to get the job done. He was proud
of the legislation that he was responsible for passing while a member of the Council. Often when we would be in a
restaurant together, he would point to the choking hazard sign and remark that he was responsible for that law.

  But perhaps most importantly, he was a kind, gentle and loving family man and generous friend, whose cheerful
smile lit up his face and a room. It is that man I will remember most and those qualities that contributed to his
achievements in his personal and professional life.
         His was a long journey from East Harlem. Well done my friend.

                                 THE ADVOCATE/Bronx County Bar Association Summer 2009
in the Bronx courts. In this regard, our team was and continues           Barnhard & Christopher DiLorenzo, and under the supervision
to be well received by our Administrative Justices, as well as            and authority of our Board of Directors, this new Attorney
by all of the Judges. Additionally, our Judiciary Screening               Lounge became ready for use and occupancy in May. We are
Committee, chaired by Robert Wolf, in conjunction with the                grateful to all individuals who generously contributed close
same committee of the Association of the Bar of the City of               to $30,000 for construction, repairs, equipment, furniture and
New York, met on many occasions to review last term’s judicial            supplies for this room, which our Association could not afford
applicants and voted on whether or not they should be                     alone. It is teamwork like this that we are best known for and
approved.                                                                 among the many reasons why we are proud of our great
                                                                          organization and our members. For this reason, and to show
  Our Association is also eligible to send 2 delegates to each            our appreciation to all who donated, our Association (thanks to
of the conferences of the New York State Bar Association’s                Corey Sokoler who found it for us) provided a plaque in the
House of Delegates. Our 2008/2009 delegates, Richard                      shape of a tree with the name of each contributor on each of its
Weinberger and Kevin Quaranta, attended these conferences,                leaves, which are color coordinated to the amount contributed.
                                                                          This beautiful work of art now hangs in the new Attorney Lounge.
  In the Spring of this year, our Civil Courts Committee                  (see photos below)
Chairman Robert Shaw organized a first-time luncheon at
Antonio’s Restaurant in the Arthur Avenue section of the Bronx              My term has ended and, in reviewing a year that seems to
for committee members to honor and thank Justice Allison                  have passed as fast as a blink of an eye, I have considered
Tuitt for her work in presiding over the high-volume DCM Part.            what it has meant to me and what remains critical for the
Additionally, in April, thanks to the efforts of Co-Chairs Carlos         continued success of our organization. Summed up in one
Calderon and Robert Wolff, together with Harold Weisman,                  word, it is teamwork. I had the good fortune of working with a
Robert Shaw, Steven LoPresti, Anna Cabrera, Lester                        very talented team of Officers, Directors and Members, and I
Rodrigues and Roberto Laracuente, among others, we also                   will be forever thankful to all for your hard work and able
held a very successful and well-attended Annual Dinner in                 assistance. I am also especially grateful to Mary Conlan, our
May at the Marina del Rey, at which time we honored Justice               Executive Director, and Nereida Guerrero, our Secretary, without
Dianne T. Renwick, Associate Justice of the Appellate Division,           whose guidance, patience, skill, experience and endless
First Department, and only member of the Bronx Supreme                    energy, we could not have gotten any job done as well as we
Court judiciary appointed to the Appellate Division in recent             did. I also thank my husband and partner, Charles H. Spiegel,
years. We also honored Judge Stanley Green, one of the                    and our family and office staff for their generosity of time and
presiding justices of the Special Trial Part in Bronx Supreme.            willingness to share me, and for being the best cheerleaders
At that dinner, we awarded two of our annual scholarships, the            a winning team could ever have.
Craig Lensch Memorial Scholarship and the Justice Peggy
Bernheim Memorial Scholarship, each in the amount of $3,000,                 Finally, I extend my sincerest congratulations and best
to two worthy law students. Our Scholarship Committee,                    wishes to our new President, Carlos Calderon, and I look
chaired by Alan Friedberg, selected the recipients from                   forward to attending and seeing you all at our Bar Association
numerous applications submitted for our consideration.                    Installation Dinner of the Decade on September 16, 2009, at
                                                                          Maestro’s, when Carlos and the new Officers and Directors
   Our last event, our Annual Golf and Tennis Outing, took place          will be officially sworn in to their new offices. I pledge to continue
on Monday, June 8th, one of the very few dry and sunny days of            to do my part, along with all of you, as we continue forward,
that month. It was held for the first time at Bonnie Briar Country        working together as a winning team, into the future. As Vince
Club in Larchmont, and thanks to the efforts of the committee             Lombardi said “Individual commitment to a group is what
co-chaired by Kevin Darcy, Anna Cabrera, Carlos Calderon                  makes a team work, a company work, a society work, a
and Al Cornachio, a great time was had by all. The golf course            civilization work.” I add to that – and it is most rewarding!
was challenging, tennis tournament exciting, and for the first
time, a tennis clinic was made available for beginner players.            Thank you. I hope you enjoy the rest of the Summer!
A cocktail hour was held outdoors with live music (partially
                                                                          Lucille M. Barbato
provided by the generous contribution of our member Joyce
Randazzo) followed by dinner inside where trophies were
presented to the golf and tennis tournament winners, raffle
prizes awarded, and the door prize—a Sony Wii— won by
Honorable Justice Howard Silver.

  Finally, I am proud to announce that our Association
was instrumental this past term in securing a new and
improved Attorney Lounge in the Bronx Hall of Justice. Not
satisfied with the original room provided to attorneys, we met
on several occasions with Honorable Anne Pfau and her
associate Ron Younkins, as well as Administrative Judge
John Collins and Chief Clerk Steve Clark, and followed through
until we were given the right room in the right place in the new
courthouse. Through the persistence of our Leadership
Committee, consisting of Kevin Quaranta, Christopher
DiLorenzo, Sam Braverman, Corey Sokoler, David Barnhard
and me, this new Attorney Lounge was made available to our
Association in the first week of January, 2009. Thereafter,
through the tireless efforts of Corey Sokoler, assisted by David

                                         THE ADVOCATE/Bronx County Bar Association Summer 2009
                             NAVIGATING THE NEW                       the doctrine of forum non conveniens since it is an equitable
                            YORK CITY CIVIL COURT                     doctrine stemming from common law. The problem with
                                   (Part 3)                           this argument is that Civil Court has no inherent equitable
                                         by                           power and it has no specific equitable powers absent such
                               William Ramos-Vazquez                  statutory grant.
                                                                                The most cogent argument for the application of
                                                                      the doctrine of forum non conveniens to Civil Court has been
                                                                      provided by A&S Medical P.C. v. Elrac Inc.,184 Misc. 2d
                                                                      257 (NYC Civil Court, 2000). The case involved an action
                                                                      commenced in Queens County to recover for unpaid no-
                                                                      fault benefits. Plaintiff’s assignor, a resident of Kings County,
                                                                      had been involved in a car accident in New Jersey while
          This is the final installment of a three-part series
                                                                      driving a car he rented from the defendant, a self-insured
discussing major differences in civil practice in New York
                                                                      corporation having its principal place of business in Suffolk
City Civil Court viz-a-viz Supreme Court. Previously, we
                                                                      County. The defendant moved to dismiss the action on
addressed the differences between the two courts with
                                                                      forum non conveniens ground, pursuant to CPLR §327.
regard to the manner of the commencement of an action
                                                                                The court found the CPLR’s forum non conveniens
with respect to venue. To fully appreciate the distinctive
                                                                      statute applicable to Civil Court through CPLR §101, which
characteristics of the New York City Civil Court,
                                                                      mandates that the CPLR shall apply to all civil proceedings
practitioners must also understand the unique aspects of
                                                                      “in all courts of this state . . . except where the procedure is
the Civil Court regarding the interrelated concepts of venue
                                                                      regulated by inconsistent statute.” As the court explains,
and forum non conveniens.
                                                                      “[a] search of the New York City Civil Court Act reveals not
          Forum non conveniens deals with a court’s
                                                                      only the nonexistence of an inconsistent statute but also a
discretionary authority to dismiss an action, even where
                                                                      necessity for the statute’s applicability.” Specifically, “[t]he
it has jurisdiction and venue has been established. The
                                                                      statute plainly states that if a court finds an action should
rule is ostensibly available to protect a defendant from a
                                                                      be heard ‘in another forum’ the court may take what actions
burdensome or otherwise inconvenient choice of forum by
                                                                      it deems appropriate.” In addition, the Court noted that
the plaintiff. Although a product of common law, the
                                                                      “[w]hile in an action brought in Supreme Court this would
doctrine was codified in 1972 and is embodied today in
                                                                      necessarily mean a different State, there is no reason why,
CPLR §327. The Civil Court Act (CCA), however, has no
                                                                      by extension, it should not entail consideration by a court
analogous provision.
                                                                      of limited jurisdiction of a more appropriate venue in this
          There is a split of authority, with no appellate
                                                                      State when required to ensure that substantial justice is
resolution, as to whether a lower court, despite the inability
to transfer venue to anything but another geographical
                                                                                Ultimately, the court denied the motion for a
subdivision of its own court, nevertheless has the authority
                                                                      dismissal on forum non conveniens grounds, upon finding
to stay or dismiss cases on forum non conveniens grounds
                                                                      that defendant failed to sustain its burden in establishing
pursuant to CPLR §327. Some courts, like in Suffolk
                                                                      how it would be disproportionately inconvenienced by
Chiropractic Center v. Geico, 171 Misc. 2d 855 (NYC Civil
                                                                      litigating this matter in Queens County Civil Court, or how
Court 1997), have expressed doubts as to the availability
                                                                      the Suffolk District Court can better serve the convenience
of such authority in the Civil Court, relying on the express
                                                                      of the parties. Nor did defendant show that there was, or
language of CPLR §327. CPLR §327 reads in pertinent
                                                                      would have been, an undue hardship placed on Civil Court if
part that “when the court finds that in the interest of
                                                                      this matter were to be tried here.
substantial justice the action shall be heard in another
                                                                                Since no appellate case has addressed the issue
forum, the court . . . may stay or dismiss the action.” It
                                                                      and rendered an opinion to the contrary, nothing impedes
also states that the “domicile or residence in this State of
                                                                      practitioners from moving for a forum non conveniens
any party on the action shall not preclude the court from
                                                                      dismissal. They, however, must rely on bare legal
staying or dismissing the action.” Because of the statutes’
                                                                      precedent—the non-binding but well-reasoned authorities
reference to interstate dismissal and the conspicuous
                                                                      of several Civil Court judges. Significantly, CPLR §327 has
absence of any mention in CPLR §327(a) of “domiciliary
                                                                      been interpreted by most legal commentators to permit the
or residence” in a county of this state, some courts have
                                                                      limited use of the forum non conveniens dismissal by courts
held that the forum non conveniens dismissal was never
                                                                      of limited jurisdiction to favor the transfer of the action to
meant to apply to a local court like the New York City Civil
                                                                      another lower court of comparable jurisdiction. (See e.g.
                                                                      Siegel, New York Practice, 3rd Edition, 1999.)
          The predominant view, however, is that Civil Court
has the discretionary authority to dismiss an action under                     William Ramos-Vazquez is the Law Secretary to As-
the forum non conveniens doctrine, albeit to a court of               sociate Justice Dianne T. Renwick, Appellate Division, 1st De-
comparable jurisdiction within the state. For instance,               partment. He is also a member of the Bronx County Bar Asso-
some courts hold that the Civil Court Act’s silence does              ciation and an Associate Editor of THE ADVOCATE.
not preclude Civil Court from applying a dismissal under

                                       THE ADVOCATE/Bronx County Bar Association Summer 2009
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            RICHARD S. KLEIN, M.D.
                        1872 Commerce Street                                                   Opinions and legal citations contained in the articles in
                         Yorktown, NY 10598                                                    TheAdvocate are those of the authors and do not neces-
                            914-962-3303                                                       sarily reflect the the views of the Bronx County Bar
                          Fax: 914-962-4271                                                    Association, its officers, directors or editors.

                                                    THE ADVOCATE/Bronx County Bar Association Summer 2009
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                                            Forever In Our Hearts And Minds
                               On December 5, 2008, a year after our dear friend Charlie Keeney died suddenly of a heart
                               attack, the Bronx County Bar Association held a memorial service for him in the Library at
                               our annual Holiday Party. His wife Sally and son Ryan were in attendance, together with
                               Charlie’s father and several other relatives. At the time of his passing, Charlie was an Officer
                               of our Association, having just been sworn in as Financial Secretary in September of 2007.
                               In Charlie’s honor and memory, we unveiled a bronze plaque that hangs in our Library, and
                               our holiday event is now known as The Charles C. Keeney, Esq. Annual Holiday Party and
                               Toy Drive. Charlie was well known and loved by many in the Bronx Courthouse and, while
                               he continues to be sorely missed, his sweet smiling face as etched on the plaque, will remain
                               with us forever, as will his memory.

                                  THE ADVOCATE/Bronx County Bar Association Summer 2009
points lie. Professionals also avoid distractions by keeping             lawyers appear on time and honor the deadlines the court
it simple. They limit adjectives. They avoid foreign or                  gives them. If delayed, they notify the court and counsel
legalistic language. Written and oral persuasion is linked               whenever possible and as soon as possible. Lawyers should
to clarity and concision. The best lawyers write clear, simple           also notify opposing counsel and the court or other persons
prose in plain English. They avoid confounding their readers             at the earliest time when trials, hearings, depositions,
with bureaucratic negatives (“this argument is not without               meetings, or conferences must be cancelled or postponed.
support in the cases” rather than “the cases support this                Lawyers should also respect the scheduling commitments
argument”) and nominalizations (“it is a violation of” rather            of opposing counsel, consistent with protecting their client’s
than ”it violates”). They also avoid the double passive, which           interests. Tardiness communicates that the scheduled event
hides the actor entirely. (Think: “Mistakes were made” rather            is unimportant and demonstrates a lack of respect toward
than “I made mistakes.”) Professionals do not obscure the                others. Being punctual benefits lawyers because judges
truth; they explain why their argument is the best. They do              will accept the non-default party’s arguments. Moreover,
not write in a conclusory way but in a convincing manner                 professionals let court personnel break on time; they do
offering details, not opinions. That way they bring their                not arrive right before lunch. They show that they are
readers to the edge of the cliff without making their readers            respectful, and court personnel will be more likely to
resist and push back. They do not vouch for their clients’               cooperate with them.
credibility by using statements like “I believe,” “I feel,” or “I                  (13) Give credit where credit is due. Being
think”; they know that judges do not want to hear their                  magnanimous and giving credit where due is a major part of
arguments, not their beliefs. They do not assume that the                being a professional. Lawyers must acknowledge
reader agrees with their point; they make sure that their                colleagues for a job well done. Doing so enhances
argument is stated clearly and is easy to understand.                    collegiality among peers. Knowing when to give credit means
Ensuring that arguments are clear and concise diminishes                 understanding what needs to be done to win.
the chances that the court will err.                                               (14) Presentation is key: look the part. The way
          (10) Be accurate and precise. The best lawyers                 you present yourself, whether in person, on the telephone,
are specific. Accuracy is crucial to maintaining credibility.            or in writing, is essential. An unkempt appearance distracts
Lawyers should avoid biased modifiers. Lawyers must quote                from the arguments and demonstrates that the lawyer does
and cite accurately and use quotation marks when they                    not consider the proceeding important. Presentation extends
quote. Lawyers must use ellipses to note omissions and                   beyond dress. During a trial, lawyers must be prepared and
put alterations in brackets. They should also use pinpoint               have a theme and a plan. They should present their
(jump) citations, which demonstrates not only their honesty              arguments to persuade judges, not their clients, who will
but also helps judges find what they are referring to. They              want them to throw in the kitchen sink. Presentation in
do not use snippets out of context. When using citations,                writing is also essential. Judges will not decipher or search
they should limit themselves to the ones that add weight to              for arguments. To effect a professional presentation, good
an argument rather that those that add bulk and impress                  lawyers revise written documents numerous times, verifying
only non-lawyers. Legal writing requires precision in citation           their arguments, citations, grammar, quotations, and
to support factual and legal propositions in the form of logical         spelling.
argument.                                                                          (15) Accountability. The best lawyers do not blame.
          (11) Understate; never overstate. Less is more.                Everyone loses cases. Good lawyers accept responsibility
Overstatement is unethical while quiet understatement                    for their actions. That demonstrates honesty and humility.
persuades. Lawyers who are excessive about factual                       Accountability is also an important duty toward clients.
statements make their audience skeptical of everything. To               Lawyers must explain what happened in their case and
avoid this problem, lawyers should not use “obviously” or                why. Lawyers must return telephone calls and
“certainly” and should not emphasize by using bold,                      correspondence quickly. After a trial, professionals recognize
underlined, or italicized fonts and capitals. Nor should                 where they erred and what they need to improve.
lawyers use qualifiers like “generally” or “usually” to avoid            Recognizing the areas needing perfecting demonstrates
precision. By understating, lawyers naturally come upon                  humility and taking work seriously. Accountability also
the essence of powerful writing: They emphasize content,                 means not overpromising. When promising something to
not style. While arguing to judges, lawyers should speak                 opposing counsel or judges, professionals will always fulfill
about passionate subjects without speaking passionately.                 their commitments.
Passionate performances might convince juries but not                              The legal profession is an honorable profession.
judges. This does not mean that professionals should be                  Courtesy and civility should be observed as a matter of
boring. To the contrary, they should vary their tone and body            course. Integrity and professionalism benefit judges, clients,
language to make their arguments compelling and                          opposing counsel, court personnel, and, most important,
interesting. But they should avoid being overly expressive               the public. Even more, integrity and professionalism
and distracting. Professionals are themselves; they do not               accomplish the lawyers’ objective: winning.
act like anyone but themselves.                                            Gerald Lebovits is a judge of the New York City Civil Court, Housing
                                                                         Part, in Manhattan and an adjunct professor at St. John’s University
          (12) Be punctual. Punctuality communicates more                School of Law, where he teaches trial and appellate advocacy. The Advocate
than timeliness and respect. It is an integrity issue. Lack of           has asked Judge Lebovits to write four articles on oral and written advocacy.
punctuality demonstrates a lack of focus and clarity.                    This is his third installment. Judge Lebovits thanks Amélie Plouffe
                                                                         Deschamps and Romy Ochmann, law students from his alma mater — the
Professionals value time; they do not waste it. The best                 University of Ottawa, Civil Law Section — for their research help.

                                         THE ADVOCATE/Bronx County Bar Association Summer 2009
Holiday Party

                THE ADVOCATE/Bronx County Bar Association Summer 2009
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                             THE ADVOCATE/Bronx County Bar Association Summer 2009

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