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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 DIRECTORS Stephen B. Lowe President 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 Treasurer 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 year. 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. FYI Page 7 Reliable Back Up Solution by: Isaac Steinfeld Sincerely, Page 8 Appellate Decision of Interest by: Elana L. Yeger, Esq. Joseph F. Pennisi Page 9-14 Executive Director Classifieds FYI CLE Calendar Page 15 FYI Appellate Decision of Interest 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- 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 professional. 4. Examine my self. What are my strengths? What are my weaknesses? What do I wish to keep? What do I wish to change? 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 COMMERCIAL LITIGATION ISSUES OF INTEREST 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 pendency. 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 judgment. 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 PROTOCOL FOR EMERGENCY APPLICATIONS - SUPREME COURT 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 firstname.lastname@example.org OCA staff will answer the call or email, obtain basic information from the attorney, and contact the appropriate Administrative Judge, who will make arrangements. PAGE 5 VOLUME 11 CENTER FOR INTERNATIONAL LEGAL STUDIES VISITING PROFESSORSHIPS FOR SENIOR LAWYERS 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: CENTER FOR INTERNATIONAL LEGAL STUDIES 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 845-634-8169 Se habla español AV Rated VOLUME 11 PAGE 6 APPELLATE TERM SUPREME COURT OF THE STATE OF NEW YORK 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: email@example.com. 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 backups. 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 firstname.lastname@example.org. 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 circumstances. 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 Services Designed by Attorneys for Attorneys ♦ Local Decision Making ♦ Access to Senior Management ● Attorney Operating Accounts ● Streamlined Attorney Trust & IOLA Accounts ● Messenger Service for Deposit Pick-up ● Late Day Wires ● Partner & Firm Lines of Credit ● Commercial Mortgages & Residential Loans ● Equipment Leasing Services ● Trust & Investment Services ● Exceptional Personal Service & Attention 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 email@example.com firstname.lastname@example.org 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 ACCURATE 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 & Bonded Private Investigation Service I AM LOOKING FOR JIM FITZGERALD’S FILES IF YOU HAVE ANY INFO PLEASE CALL BEN SELIG 845-942-2222 OUR PRO BONO STAR Nathaniel Selig Kay 6 lbs 15 oz FOR THE MONTH: June 18, 2008 Proud Parents Laura & Randy Proud Grandfather ALAN MERKIN, ESQ. Benjamin E. Selig GRIEVANCE DISCIPLINARY LAW (914) 682-0037 ALL ASSIGNED COUNSEL PANEL MEMBERS PLEASE NOTE : RICHARD E. GRAYSON ATTORNEY AT LAW THE 2008 FISCAL YEAR IS COMING TO A CLOSE. PLEASE SEND IN YOUR 175 MAIN STREET, SUITE 307 VOUCHERS FOR CASES COMPLETED. WHITE PLAINS, NEW YORK 10601 DO NOT HOLD YOUR VOUCHERS FOR THE 2009 BILLING CYCLE. www.richardgraysonesq.com 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 www.rocklandbar.org MEMBERSHIP APPLICATIONS NEWS BRIEF COMMITTEES GET YOUR FLU SHOT REAL ESTATE CONTRACT CONDOMINIUM & CO-OP LIST CLE BROCHURE VOLUME 11 PAGE 13 Sharon Tucker ATTENTION MEMBERS Broker 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: email@example.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 SURROGATE WALSH’S A&D Pool and Spa, LLC Florida’s Finest Pool Finishers INDIVIDUAL PART RULES ARE AVAILABLE AT THE NYLJ AND AT Manager THE SURROGATE CLERKS’ OFFICE *Marcite Artis Rucker, Jr. *Diamond Brite 15 Kevin Court IN THE COURTHOUSE. THE HARD *Tiles Nanuet, NY 10954 COPY IS AVAILABLE AT THE BAR *Pool Repair Office (845) 426-3679 *Deck Pressure Cleaning Cell (954) 830-1057 ASSOCIATION OFFICE. PLEASE CALL LESLIE @ 845-634-2149 IF YOU NEED PoolNSpa@netbusiness.com Over 20 Years Experience A COPY. 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 IF YOU ARE PLANNING ON ATTENDING A CLE DURING THE WINTER MONTHS IT IS VERY IMPORTANT THAT YOU LOG ONTO TO OUR WEBSITE WWW.ROCKLANDBAR.ORG OR CALL 845-634-2149 FOR CANCELLATIONS DUE TO WEATHER OR LOW CLE REGISTRATION. 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: firstname.lastname@example.org 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 MY CLIENTS LEND PRIVATE, SHORT TERM, GAS • AUTO REPAIR • PROPANE COMMERCIAL MORTGAGE MONEY CONVENIENCE STORE ALAN SNIDER, ESQ. 800 CENTRAL PARK AVENUE 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 1 People v. Richardson, 2008 NY Slip Op 7178, 2008 N.Y. App. Div. LEXIS 7020 (3d Dep't Oct. 2, 2008). 2 Id. at *1-2, ** 1-3. 3 Id. at *2, ** 3-4 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). 5 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 PAID MONSEY, NY PERMIT NO. 5683 We’re on the web www.rocklandbar.org Name(s)_________________________________________Updated E-mail____________________________ Foreclosures - November 17, 2008 6:00 p.m.- 9:00 p.m. $ 75.00 Writing Course - December 9, 2008 6:00 p.m.- 9:00 p.m. $ 75.00 **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 $10.00. 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