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  • pg 1
									                             Volume 11
                                       RCBA NewsBrief                                             November 2008

                                         RESPONSE TO THE LETTER TO GOV. DAVID A. PATTERSON
    BOARD OF                              Re: Closure of the New City Workers’ Compensation Service Center

     Stephen B. Lowe
   Glenn W. Kelleher
                               Dear Mr. Lowe:
      President Elect
    Lynne S. Hilowitz                    Thank you for your recent correspondence to Governor Paterson regarding the
      Vice President
     Keith J. Cornell
                               Board’s expenditure reduction plan and the consolidation of service centers across
   Lawrence Codispoti
         Secretary             New York State. Your letter was forwarded to me for a reply.
    Sandria P. Garvin
    Executive Director                   In response to the challenging fiscal climate the state faces, in March of this
        Directors:             year Governor Paterson created a Program to Eliminate the Gap (PEG) and called for a
    Marilyn P. Davis
   Andrew DePodwin             3.35 percent spending reduction from every state agency. Reducing spending is never
    Alan E. Goldstein
   Alan G. Rosenblatt          easy, and as part of the Board’s plan, eleven of our thirty service centers will close.
    Patrick T. Burke
    Robert D. Fenster          This will save the Board-and by extension, New York’s employers-over $1 million a
    Cassandra Bilotta
      Larry Gantt
    Robert B. Marcus
     Ira S. Schoeps
   Catherine Miklitsch                   In July, the Governor ordered a further 7 percent reduction in spending. The
      Shelley Forde
    Michelle Tierney           Board is currently deciding the best way to achieve these cost savings while limiting
                               the impact on overall services and staff.

  Inside This Issue                      We chose which service centers to close based on careful examination and
                               both facility usage and cost analysis. Specifically, the New City Service Center only
         Page 1
Re: Workers’ Compensation      holds less than one percent of all hearings statewide. Any claimants can travel to the
 Center Closure Response
         Page 2                nearest hearing site, which is in Newburgh or Westchester County, depending on
    Holiday Party 2008
                               where they reside. While the Board understands your concerns, we have no plans to
         Page 3
  Commercial Litigation        re-evaluate the closings at this time.
    Issues of Interest
   by Paul Savad, Esq.                   If you have any questions, please do not hesitate to call my office at
         Page 4-6              (518) 408-0469. Thank you for your continued support of the Board.
          Page 7
 Reliable Back Up Solution
   by: Isaac Steinfeld         Sincerely,
         Page 8
  Appellate Decision of
 by: Elana L. Yeger, Esq.      Joseph F. Pennisi
       Page 9-14               Executive Director
      CLE Calendar
         Page 15
   Appellate Decision of
 by: Itamar J. Yeger, Esq.

       Page 16
    CLE Registration
     PAGE    2                                                                          VOLUME        11

                                     RCBA HOLIDAY PARTY 2008
                 Get out those holiday clothes and join us as we raise a glass of good cheer, socialize
                                       and mingle with colleagues and friends.
                     Bring your spouse, significant other or invite someone, ALL are welcome.

                    Buffet Dinner, Live DJ, Dancing, Games, Raffles, Prizes, Drinks!

                                                    The Clubhouse
                                               191-195 South Main Street
                                                 New City, NY 10956

                                            Wednesday, December 3, 2008
                                               6:00 p.m. – 10:00 p.m.

                                                 $20.00 per person
                                                 $30.00 @ the door
                                              RSVP by December 1, 2008

                              12 tips from Lawyer Assistance Program
These tips are offered to aid in one’s personal life.           The following are the 12 suggested steps of Alcohol
Anonymous, a proven self-help organization.
1.  Recognize I have a problem. Denial is a barrier to moving on.
2.  Accept that another party can assist with the situation. Discuss the situation with a trusted friend. Seek counseling.
3.  Trust that another party can handle the responsibility. Let go of ownership of the problem and assign the mechanics to a
4. Examine my self. What are my strengths? What are my weaknesses? What do I wish to keep? What do I wish to
5. Recognize my weaknesses by revealing them to a trusted party; communicate my willingness to change.
6. Prepare to make the change. Resolve I will be a different person, for the better.
7. Take the action to change. Move from resolution to doing.
8. List persons to strengthen our relationship. Improve communication with people in our lives.
9. Actually talk, see, and be with people that are in your life. Be active; be personable.
10. Do a regular inventory of myself. Periodically take stock of where I’m at, where I’ve been and where I’m going. List my
    plusses and minuses. Recognize where I need to improve.
11. Use mediation. Practice speaking my wishes. Learn to listen to the whispering of serendipity; to hear things I missed in
    the past.
12. Help others. Be active in community. Offer to do things that contribute to the larger world.

It’s not easy to admit there is a problem. It’s even harder when you think no one notices. But they do. Asking for help could
    be difficult. Knowing there is help available makes it a little easier. Understanding the unique needs of our colleagues is
                                              crucial that’s why we’re here for you.
                                                         Contact us:
                                             LAWYERS HELPING LAWYERS
                             Ben Selig, Esq., (845) 942-2222; Barry Sturtz, Esq., (845) 369-3000
                     Paul Goldhamer, Esq., (845) 356-2570; Lynn Brustein-Kampel, Esq., (845) 634-4700
VOLUME       11                                                                                                PAGE      3

                  Submitted by Paul Savad, Esq., Chair, Commercial and Corporate Law Committee;
                     Susan Cooper, Esq., and Joseph Churgin, Esq., of Paul Savad & Associates

         As part of a scheme to rescue his home from foreclosure, your client agreed to deed his home to his friend. The
 friend had good credit and promised to obtain a new mortgage to finance your client’s debts, and then deed the property
 back to your client. Your client executed a standard contract of sale which did not mention the rescue scheme
 obligations, and then deeded the property to his friend. The friend promptly sold the property to a third party and kept
 the sales proceeds. You sued the friend to enforce the oral agreement to re-convey title.
         Will your client’s claim survive a motion for summary judgment?
         The answer is yes.
         In Bryan v. Lindsay N.Y.L.J. 9/10/08, p.28, col. 1 (Sup. Ct. Kings Co.), the plaintiff claimed that he entered into a
 foreclosure rescue scheme with the defendant to save his Brooklyn home, which had been the family home for many
 years. The plaintiff alleged that the defendant, who had good credit, agreed to take title to the home, find a new
 mortgage to pay off the plaintiff’s debts, and convey the property back to the plaintiff.
         A standard contract of sale was signed, without any reference to the foreclosure rescue scheme. A deed was
 signed conveying the property to the defendant, pursuant to the contract. The plaintiff had no attorney representing or
 advising him about the contract or the closing.
         The defendant obtained a loan through Kensington Realty, which was located at the same address as the
 defendant’s attorney, Biegelson, who at the time of this transaction had a history of disciplinary proceedings
 concerning the handling of funds.         Biegelson was later disbarred.    The plaintiff testified at his deposition that
 Kensington explained to him that the plaintiff’s name had to come off the deed for the financing to go through, but that
 at the end of the closing, they would put the plaintiff’s name back on the deed, which was not done.
         Although the defendant never paid any money for the transaction, he refinanced the home after the plaintiff
 asked for the property to be reconveyed as agreed, kept the proceeds of the refinancing, and later sold the home to a
 third party under suspicious circumstances, including a contract that was signed the day the plaintiff filed a notice of
         The defendant moved for summary judgment, and the plaintiff cross-moved. The defendant disputed that there
 was any such foreclosure rescue agreement, and relied on the contract of sale, which did not mention any agreement to
 reconvey the property to the plaintiff.
         The court found that the signed contract of sale and deed demonstrated a prima facie case in favor of the
 defendant, shifting the burden of proof to the plaintiff, who raised triable questions of fact, defeating summary
         Citing Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 N.Y.2d 403, 406-407 (1958), and other cases
 dealing with fraudulent representations, the court decided that although the plaintiff’s allegations did not support a
 breach of contract claim, they did support a claim for fraud in the inducement, requiring the plaintiff to prove 1) the
 knowing misrepresentation of a fact, 2) the intention to deprive the plaintiff of a benefit, 3) justifiable reliance by the
 plaintiff, and 4) injury. The allegations made by the   plaintiff, if true, would satisfy these elements. Therefore, the court
 held that triable issues of fact precluded the grant of summary judgment.
 The lesson?
 Oral promises not included in a signed contract may be used to establish fraud in the inducement of the contract.
VOLUME    11                                                               PAGE   4


       As you may have heard, we have set up protocol by which attorneys can seek
 assignment of a Judge for an emergency civil application in Supreme Court when the
 courthouse is closed, so that the attorneys do not have to search on their own for a
 Judge to hear the application.
       We have established a central point of contact with the following toll-free
 telephone number and email address for attorneys to request to appear before a
 Judge:                  (800) 430-8457 or emergency@nycourts.gov
       OCA staff will answer the call or email, obtain basic information from the
 attorney, and contact the appropriate Administrative Judge, who will make
  PAGE     5                                                                VOLUME      11


Spring and Autumn 2010
at Law Schools in Eastern Europe
and the Former Republics of the Soviet Union

The center for International Legal Studies, in cooperation with law faculties in Eastern Europe and the
former republics of the Soviet Union, will offer short term appointments to as many as 80 senior lawyers
from Common Law countries during spring 2010 and autumn 2010. a “senior lawyer” has at least 20 years
of significant practice experience in the area in which she or he proposes to lecture. The term of teaching
may be from two to six weeks and the length of appointment and dates of teaching are subject to
negotiation between the appointee and the host university. The subject areas are not limited, but there is
special interest in corporate and business law, intellectual property, litigation, arbitration, and criminal
procedure. The purpose of the seminars will be to introduce particular areas of Common Law legal systems
to the law students and junior faculty of the host university. These faculty appointments are not
remunerated, and the appointee is responsible for his or her travel. The host university will assist with
lodging. A one-week orientation seminar in Salzburg, Austria, is mandatory prior to assumption of the
appointment. Interviews will be conducted in San Francisco, Chicago, and Boston in May 2009

                                 REQUEST APPLICATIONS FROM:

                                        PO BOX 19
                                 5033 SALZBURG, AUSTRIA
                                AUSTRIA FAX 43 662 835171
                             UNITED STATES FAX (509) 356-0077
                                  EMAIL: CILS@CILS.ORG

                                                             WORK INJURY LAW
                                                                HOFFMAN, WACHTELL, KOSTER,
                                                               MAIER, RAO & GOLDENBERG, LLP.

                                                                         82 Maple Avenue
                                                                          P.O. Box 88
                                                                        New City, NY 10956

                                                            Se habla español                 AV Rated
VOLUME       11                                                                                              PAGE   6

                                       APPELLATE TERM
                       2ND AND 11TH, 9TH AND 10TH JUDICIAL DISTRICTS

         By Administrative Order, the Appellate Division, Second Judicial Department adopted various amendments to
 Parts 730, 731 and 732 of the Title 22 of the New York Codes, Rules and Regulations, which essentially contain the Rules
 of Practice of the Appellate Terms for the Second, Eleventh and Thirteenth Judicial Districts and the Ninth and Tenth
 Judicial Districts. The amendments were conceived in consultation with Hon. A. Gail Prudenti, Presiding Justice of the
 Appellate Division, Second Department, to implement a plan for improvements to the Appellate Terms initiated by the
 Presiding Justice some time ago.
         The order was signed by the Presiding Justice on September 17, 2008 and became effective immediately.
 Nevertheless, the court will not start enforcing some of the revised rules (particularly with regards to brief filing
 deadlines and number of copies of briefs required) until November 1, 2008, to enable the bar and public to familiarize
 themselves with the rules.
         It is our expectation that the amendments to the rules will help the court serve the bar and other court users
 more efficiently. If you have any questions, please feel free to call the clerk’s office at 347-401-9580.
         To view these rules in their entirety visit the court’s website at www.nycourts.gov/courts/ad2/
 publicnotices.shtml.. Go to Administrative Orders and click on ADM 2008-0917 Amending Rules of Appellate Terms,
 2nd Department. You may also obtain a copy at the Bar Association Office by calling Leslie @ 845-634-2149 or by
 e-mail: leslie@rocklandbar.org.
  PAGE     7                                                                          VOLUME         11

                        Looking for a Reliable Backup? A Word About Backup Exec
As promised we will focus this article on the gold standard of backup programs: Symantec’s (formally from Veritas,
Seagate, et al.) Backup Exec. If you would have to describe Backup Exec in one word, it would be RELIABLITY. Backup
Exec is a comprehensive backup program that allows you to configure your backup and rely on it to perform as a
workhorse, day in and day out. It is a professional neatly designed backup software program, which is at once, intuitive
and elaborate. It is extremely flexible and can deal with almost any conceivable option or variable you can imagine. (I
don’t work for Symantec!) At the same time it is not too overwhelming in the sense that if you are looking to setup a
simple backup routine and automate it to run on a typical schedule, it can be done with ease.

 The task of describing this program in any detail would be outside the scope of this format; the technical guide for the
current version is a staggering 1626 pages long! I will just share with you a list of attractive features and concepts to
bring to your attention the highlights of Backup Exec.

On a personal note: While looking for innovative new techniques and programs for backing up computer systems has
lead me in many directions over the years, I invariably will resort back to Backup Exec for its unshakeable reliability and
its ability to anticipate even the most unlikely scenarios and deal with them.

The administrative console organizes everything in a logical way. The helpful “Wizards” can guide even the novice to
successfully setup a basic backup job, by simply accepting all the program default settings. For more assistance, the
Backup Exec Assistant is a single resource that assists with many common tasks, providing links to helpful Wizards,
documentation, technical support assistance, and configuration options.

You can choose to backup to a tape device or use the Backup-to-Disk feature to backup to another hard disk. When
backing up to a disk, you should obviously create it on a disk that won’t be included in the backup jobs and that has
enough available free space to contain the backup job.

You can use Selection Lists to provide a quick and easy way of selecting files that you back up often. After you choose
the folders and files to backup, you can save the selections as a Selection List that you can use in regularly scheduled

The extensive Scheduling options enable you to configure any conceivable combination of time and frequency for
running you backup jobs, from the simple to the more complex. You can also setup a timer for when a backup job needs
to complete by, thus causing the job to fail if it isn’t completed by the specified time.

You can configure the backup to do a Verification routine, after the job completes and in the case of a tape device, eject
the tape after the job completes. You can also run any command prior to or post the backup job. You can also protect
your tapes from being accidentally overwritten, by setting Overwrite Protection Periods, which can be specified in
hours, days, weeks, or years. When the protection period is over, the tape becomes recyclable and can be overwritten.

To monitor the success or failure of the backup jobs, the extensive Job Monitor displays the status of the active,
scheduled, and completed backup jobs that have been submitted. By clicking on a backup job, a detailed report
explains why a given job has failed and what corrective action can be taken to address the failure. You can also setup
email notifications to alert you regarding the outcome of your scheduled backups. In addition, Backup Exec includes 45
customizable reports that can show detailed information about your backup system from any desired perspective.

Recovering lost files or the entire system, is also very straightforward. You simply select the date of the original backup,
choose the items to restore, choose the destination for the restore and submit the job. Your files should be back the way
you left them.

In short, if you want reliable backups, Backup Exec certainly deserves your attention. Doing online backups will be
discussed in the next article. While not typically as reliable as local physical backups (IMHO), online backups certainly
fill a need when considered as a secondary backup technique.

This article has been submitted by Isaac Steinfeld, MCSE, of Rockland Computer Specialists. He is available to respond to
any questions relating to this article or other technology related matters. Isaac can be reached at 845 367-1441 or at
VOLUME       11                                                                                                 PAGE      8

                                             Appellate Decision of Interest
        Elana L. Yeger has opened an appellate/motion and criminal practice. She can be reached at (917) 992-9263.
 Second Department Rules that Real Estate Broker Cannot File Notice of Pendency Against Property Subject
     to Sale Commission Even Where Purchaser Immediately Transfers Property to Third Party for no
                               Consideration, rendering Buyer Insolvent
        It is well-settled that a broker has no right to file notice of pendency when suing a client for failure to pay
commissions due because such a lawsuit does not “affect the title to, or the possession, use or enjoyment of, real
property.”   C.P.L.R. §6501; In re Sakow, 97 N.Y.2d 436, 440 n.3 (2002). This language has been narrowly construed
against brokers due to its “powerful impact” on property ownership. Bd. of Mgrs. of Woodpoint Plaza Condominium v.
Woodpoint Plaza, LLC, 43 A.D.3d 971, 972 (2d Dep't 2007). Recently, the Second Department had a chance to rule on a
novel question with potential far-ranging impact: May a broker file a notice of pendency where the buyer, after purchase,
transfers the property to a third party, rendering the buyer insolvent and (potentially) placing the property out of the
broker’s reach? The majority found no right, but the dissent argued that a notice of pendency was proper in light of the
        The facts are simple. Homespring, LLC v. Lee, 2008 NY Slip Op 7618, 2008 App. Div. Lexis 7609 (2d Dep't Oct. 7,
2008). The individual defendant, Lee, was the managing member of defendant Kent Group LLC, and agreed to pay
Homespring a $185,000 buyer’s broker commission on the sale of real property. The actual purchasing entity, defendant
Galaxy Group USA, Inc., entered into the contract that named plaintiff as the buyer’s broker. Galaxy then immediately
transferred the property to a third entity for no   consideration, allegedly rendering Galaxy insolvent.
        The majority determined that even in this case, the broker had no right to file a notice of pendency. Id. at *2,
**2-4. It found that despite including a cause of action for fraudulent conveyance, the lawsuit was, in effect, one for
“recovery of plaintiff’s brokerage commission, either under a contract or quantum meruit basis….” Id. Additionally, the
majority expressed concern that allowing the broker to file a notice of pendency would violate a statute that strictly limits
broker’s rights “to secure their commissions.” Id., citing Real Property Law § 294-b. That statute expressly states that
while a broker may file with the clerk of the county in which the sale took place an affidavit of non-payment, “[r]ecording
such affidavit shall not invalidate any transfer of real property or lease thereof. Such affidavit shall not be deemed to
create a lien and shall be discharged one year after filing [and] the clerk shall note thereon that such notice does not
constitute a lien nor shall it invalidate any transfer or lease.” R.P.L. §294-b (2), (3). Thus, it found that the broker was not
entitled to file the notice of pendency. It distinguished on the facts a recent Second Department case that allowed a
notice where a debtor fraudulently transferred property to avoid paying a debt. Id. citing Ford Motor Credit Co. v.
Shayovitz, 36 A.D.3d 754 (2d Dep't 2007) (collecting cases).
        The lone dissenter, Justice Spolzino, was plainly troubled by defendants’ actions in this matter. Id. at *2-3, **4-5.
He admitted that the court had no power to expand the reach of the notice of pendency statutes beyond the legislature’s
limitations, and that this “interim relief … is normally not available” in broker commission cases. He distinguished this
case from the norm by stressing that plaintiff here alleged a fraudulent conveyance. In Justice Spolzino’s mind, this ex-
tra fact removed this case from the broker commission universe and into the orbit of cases like Shayovitz.
        If the majority is correct, this case exposes a deep hole in broker commission matters. Buyers could potentially
make themselves judgment proof by transferring properties to third parties soon after purchase, and those third parties
could sell the properties to bona fide purchasers, removing the properties themselves – often the only asset a broker can
uncover – from being sources of payment for broker commissions eventually awarded in court action. One possible
solution would be to amend the applicable statutes to allow brokers to file notices of pendency in the limited
circumstances presented here, namely, when the buyer transfers the property to a third party for obviously less than full
consideration, thereby leaving the buyer with insufficient assets to pay the agreed-to broker commission.
   PAGE         9                                                                                              VOLUME            11

                                                    Rockland Attorneys
                                          Can Expect More from Hudson Valley Bank

                                                254 South New Main Street, New City

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                                           ●          Commercial Mortgages & Residential Loans
                                           ●          Equipment Leasing Services
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                                  Contact our Legal Services Group at (845) 521-7014
                                         or visit www.hudsonvalleybank.com
                           Find out why over 1,000 law firms bank with Hudson Valley!

                                    Joseph Ruhl                                                              Larry McElroen
                                First Senior Vice President                                                   Vice President
                                 jruhl@hvbank.com                                                        lmcelroen@hvbank.com
Hudson Valley Bank is an independently owned local bank with $2 billion in assets, serving the metropolitan area with 27 branches located in
Westchester, Rockland, the Bronx, Manhattan, Queens and Brooklyn NY, and Fairfield County, CT.
VOLUME   11                                                                             PAGE    11

                                      INVESTIGATIONS, LLP
                                            Assigned Counsel Cases, Interviews & Statements, Notary,
                                                  Process Service, Skip Tracing, DMV Records
                                                               Civil and Criminal
                                                        Many Resources for Your Needs

                                      120 North Main Street                    Tel: (845) 634-2463
                                      Suite 203                                Fax: (845) 634-7710
                                      New City, NY 10956
                                                              Email: frankalessio.com
                                                          Professionally Licensed
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                                                              PLEASE NOTE :
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                                           CLOSE. PLEASE SEND IN YOUR
                                              THE 2009 BILLING CYCLE.
PAGE    12                                                                         VOLUME            11

  COMMITTEE CALENDAR                                                CLE CALENDAR
          NEW DATE
    Monday, November 24, 2008
   Commercial & Corporate Law
       Committee Meeting
            5:45 p.m.
     Law Office of Paul Savad
       55 Old Turnpike Road-Suite 209
              Nanuet, NY 10954                                        Monday, November 17, 2008
                                                                  CLE: Current Issues in Foreclosures
                                                    Time: 6:00 p.m.– 9:00 p.m. (Registration @ 5:30 p.m.) Light Dinner
                                                                   Level: Transitional/Non-Transitional
          SAVE THE DATE                                                         Cost: $75.00
                                                      Place: Suffern Free Library, 210 Lafayette Ave, Suffern, NY
                                                              Credits: 3 (2.5 Professional Practice; .5 Ethics)
     Friday, May 1, 2009
                                                                       Tuesday, December 9, 2008
          9:30 A.M.                                         CLE: Persuasive Legal Writing: Writing to Win
                                                    Time: 6:00 p.m.– 9:00 p.m. (Registration @ 5:30 p.m.) Light Dinner
         LAW DAY                                                   Level: Transitional/Non-Transitional
                                                                                Cost: $75.00
 Rockland County Courthouse                  Place: Rockland BOCES Instructional Services Building, #10, West Nyack, NY
              ~                                               Credits: 3 (2.5 Professional Practice; .5 Ethics)

     Friday, May 1, 2009                                               Thursday, January 8, 2009
                                                            CLE: Best Employment Practices for Law Firms
    1:00 P.M. - 4:00 P.M.                           Time: 6:00 p.m.– 9:00 p.m. (Registration @ 5:30 p.m.) Light Dinner
                                                                   Level: Transitional/Non-Transitional
     CPLR UPDATE W/                                                             Cost: $75.00
PROFESSOR DAVID D. SIEGEL                    Place: Rockland BOCES Instructional Services Building, #10, West Nyack, NY
                                                              Credits: 3 (2.5 Professional Practice; .5 Ethics)
      Rockland BOCES
                                                                        Monday, January 26, 2009
                                                                     CLE: Landlord Tenant Update
                                                      Time: 6:00 p.m.– 9:00 p.m. (Registration @ 5:30 p.m.) Dinner
                                                                   Level: Transitional/Non-Transitional
                                                                                Cost: $75.00
                                                      Place: Suffern Free Library, 210 Lafayette Ave, Suffern, NY
                                                              Credits: 3 (2.5 Professional Practice; .5 Ethics)

                                             **Kosher Meals are dependant on the delivery service available from the caterer.
                                               All kosher meals must be ordered in advance and require an extra charge of
             Specializing in New Attorneys
                                             $10.00. Call the Association and place an order for a kosher meal. Please give us
                                                                         at least one weeks notice.
     ALL PROCESS & SUBPEONAS                                   Credit is not given for partial attendance.
  WITNESS STATEMENTS & INTERVIEWS               Make sure your blue evaluation forms are completed and turned in to CLE
         FINDING WITNESSES                                       Coordinator to receive your certificate.
   BUILDING DEPARTMENT RECORDS                                       Prices for the above Seminars:
      COURT FILINGS & RETREIVAL                                     Cost: $75.00 Members of RCBA;
                                                                 $95.00 Non-Members; $85.00 Walk-Ins
 Serving Rockland, Hudson Valley & NYC                               $30.00 Students and Paralegals
                  Hilly Minzer
            Retired Court Officer
         33 Years Court Experience
         Phone / Fax (845) 354-9805                           WHAT’S ON OUR WEBSTE
            Cell (914) 260-2866
                                                               MEMBERSHIP APPLICATIONS
                                                                      NEWS BRIEF
  GET YOUR FLU SHOT                                             REAL ESTATE CONTRACT
                                                               CONDOMINIUM & CO-OP LIST
                                                                    CLE BROCHURE
VOLUME       11                                                                                                 PAGE        13

                                           Sharon Tucker                      ATTENTION MEMBERS
                                                                        ARE YOU HOLDING FILES FOR
  ERA Tucker Associates, Inc.                                      ATTORNEYS THAT HAVE RETIRED OR ARE
  ___________________________                                      DECEASED? IF SO PLEASE CONTACT THE
  8 College Avenue, Nanuet, NY 10954                               ASSOCIATION WITH THAT INFORMATION.
  Nanuet Office: (845) 623-5200
  Nanuet Fax: (845) 623-5244
  E-Mail: tuckerera@era.com
  Website: tuckerera.com                                           LOG ON TO WWW.ROCKLANDBAR.ORG
  Serving all your real estate needs in Rockland & Orange County
  Auction Advantage also available
  Each ERA Office is independently Owned and Operated                  THE 2008–2009 CLE BROCHURE IS
                                                                         AVAILABLE FOR VIEWING

                                Interested in Softball?                Need a Place to Meet in New City?
                                                                                RCBA Conference Rooms
                                A committee is being                              Available for Rent
                                formed to organize a RCBA
                                softball outing in late Spring        First Two Hours free for members of RCBA
                                2009.                                              Member Prices
                                                                                Closings & Depositions
                        We are in need of a few                               $60 half day/ $120 full day
                        volunteers who would like                               Non – Member Prices
                        to play or who can help plan                          $75 half day/ $135 full day
 a day that will be fun for everyone together with
 raising scholarship monies. Please contact either                   We must have advance notice for closings and
 Steve Lowe or Robyn Lefcourt.                                        depositions. A small fee will be charged for
                                                                        any telephone usage, faxes and copies.
                                                                       Please call (845) 634-2149 in advance for rental

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                                                                        2008 SURVEY OF FLORIDA LAW AUDIO

    ANYONE LOOKING TO SHARE A WESTLAW                                     11.5 Hours of General CLER Credits
              SUBSCRIPTION?                                                    including 4.0 hours Ethics.
                 IF SO, LET ME KNOW.                               Credit approval period is 2/13/2008-8/13/2009
               CALL LESLIE @ 845-634-2149                                Call the Association 845-634-2149 for disc.
VOLUME    11                                                                                            PAGE      14

                     ATTENTION ALL MEMBERS
                   DURING THE WINTER MONTHS
          WWW.ROCKLANDBAR.ORG OR CALL 845-634-2149 FOR

                  Allen A. Kolber, Esq.                                    Murphy & Lambiase
                Announces the relocation                                     Attorneys At Law
             of his Rockland County offices                              Announces the opening
                  LAW OFFICES OF                                   of their satellite office in Rockland
             ALLEN A. KOLBER, ESQ.                                     233 Lafayette Ave, Suite M-1
                134 Route 59, Suite A                                       Suffern, NY 10901
                  Suffern, NY 10901                                      Tel# 1 (800) 914-LAWS
                                                                       E-mail: lawyers@fjmlaw.com
     Tel# (845) 918-1277 New Fax# (845) 369-1618                          www.mllawonline.com
         E-Mail: AKolber@KolberLegal.com
                                                                              Concentrating in:
                    Concentrating in:                               Bankruptcy - Personal & Corporate
               Bankruptcy Law & Litigation                                 Commercial Litigation
   Representing Debtors & Creditors-Chapters 7, 11 & 13   Negligence - Auto, Dental, Malpractice, Personal Injury &
              Commercial Law & Litigation                                     Product Liability
          Contracts, Partnerships, Corporations
          Buying & Selling Businesses, Litigation

                                                          9W Auto Center
                                                             NEW YORK STATE INSPECTION

     PRIVATE, SHORT TERM,                                       GAS • AUTO REPAIR • PROPANE
 COMMERCIAL MORTGAGE MONEY                                          CONVENIENCE STORE
            SUITE 204
                                                                                                   55 Route 9W
      SCARSDALE, NY 10583                                 Tel: (845) 947-7070                  West Haverstraw
               PHONE (914) 472-1956                       Fax: (845) 947-7071                  New York, 10993
VOLUME            11                                                                                                 PAGE     15

                                                  Appellate Decision of Interest

       Third Department Reverses Arson and Insurance Fraud Convictions on a Rare Ground:
                                                     Weight of the Evidence.
              It is rare indeed when a court reverses a criminal conviction after finding the weight of the evidence
 does not support the conviction. A three-Justice majority in the Third Department recently did so over a
 two-Justice dissent.1
              The convictions were supported by only circumstantial evidence, because defendant left his home
 “less than two hours” before the fire. Defendant had sole access to the home, and a baseboard in the
 kitchen showed evidence of “a medium petroleum distillate” in an area that contained numerous appliances
 plugged into a single power strip.2
              However, the majority noted that the inexperienced fire investigator and the insurance adjuster both
 “conceded that they were unable to pinpoint the actual cause of the fire.” They did not inspect the majority
 of the appliances in the area where the fire began, failed to further discern why three circuit breakers
 tripped, indicating a possible electrical overload, and relied on a report from an electrical engineer who did
 not inspect the property.3
              Further, defendant testified that he was repainting the kitchen and also kept a bottle of lighter fluid in
 that area of the kitchen; paint thinner and some brands of lighter fluid are medium petroleum distillates. The
 People’s experts never excluded the possibility that these sources resulted in their positive test result.
 Additionally, the prosecution never demonstrated a reasonable motive, a critical lapse in wholly
 circumstantial cases. While defendant owed taxes on his home, he owned it outright with no mortgage. He
 did purchase addition insurance about one month prior to the fire, but even that increased amount was
 “grossly inadequate to the loss sustained” by about $38,000.                     Finally, he removed no personal property
 from the home prior to the fire, including the flag that had draped his father’s casket.4
              The dissent would have affirmed. It began with the well-known axioms that an appellate court may
 not substitute itself for the jury that saw and heard the witnesses, and must show “great deference” to its
 factual inferences. It further stressed that the jury saw and heard defendant when he took the stand, while
 the appellate panel had “no hint of his demeanor.”5

     People v. Richardson, 2008 NY Slip Op 7178, 2008 N.Y. App. Div. LEXIS 7020 (3d Dep't Oct. 2, 2008).
     Id. at *1-2, ** 1-3.
     Id. at *2, ** 3-4
   Id. at *2-4, ** 4-7. The majority did note that motive was not an element, but is “controlling” in circumstantial evidence cases.
 Id., citing, inter alia People v. Lewis, 275 N.Y. 33, 40 (1937) (other citations omitted).
   Id. at *4, ** 9 (Carpinello, J., dissenting).

                         Itamar J. Yeger is the Rockland County Executive Assistant District Attorney for Appeals.
                                                   He can be reached at (845) 638-5538
                                                                                                               US POSTAGE
                                                                                                             NON-PROFIT ORG
                                                                                                              MONSEY, NY
                                                                                                             PERMIT NO. 5683

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