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Dec pub malpractice lawyers brooklyn


									                                    RCBA NewsBrief
                            Volume 12                                                                      December 2008

                                       COMMERCIAL LITIGATION ISSUES OF INTEREST
   BOARD OF                        Submitted by Paul Savad, Esq., Chair, Commercial and Corporate Law Committee;
   DIRECTORS                          Susan Cooper, Esq., and Joseph Churgin, Esq., of Paul Savad & Associates
    Stephen B. Lowe                     Your client wants to sue his prior attorneys for malpractice, but fears that he cannot get
  Glenn W. Kelleher
     President Elect
                              a fair trial in the county where all the parties are located. Your client’s prior attorney is a
   Lynne S. Hilowitz
     Vice President           former deputy supervisor of one of the county’s largest towns and a former village attorney
    Keith J. Cornell
       Treasurer              within the county. His father-in-law is a recently retired Supreme Court Justice. An associate in
  Lawrence Codispoti
        Secretary             the firm is the daughter of a current judge of a district court in the county. The attorney is also a
   Sandria P. Garvin
   Executive Director         close friend of sitting Supreme Court Justices in the county. Therefore, you commenced the
       Directors:             malpractice action in the neighboring county where none of the parties reside. The attorney has
   Marilyn P. Davis
  Andrew DePodwin             moved to change the venue to the county where the parties reside.
   Alan E. Goldstein
  Alan G. Rosenblatt
   Patrick T. Burke
                                        Will you be able to retain venue in the neighboring county, on the ground that an
   Robert D. Fenster
   Cassandra Bilotta          impartial trial cannot be had in the county where the parties reside?
     Larry Gantt
   Robert B. Marcus                     The answer is no.
    Ira S. Schoeps
  Catherine Miklitsch                   In The Trust U/W/O Nick Gallipoli v. Russo, N.Y.L.J. 10/31/08, p. 28 col. 3, plaintiff, the
     Shelley Forde
   Michelle Tierney           Trust brought a malpractice action against attorney Eric Russo and his law firm in Supreme
                              Court, Nassau County. Russo had represented the Trust when the Town of Brookhaven, in
 Inside This Issue            Suffolk County, issued a summons against the Trust for illegal dumping on Trust property,

       Page 1-2               which was rented to a tenant. The Trust claims that Russo failed to prevent the tenant from
 Commercial Litigation
   Issues of Interest
                              continuing with the illegal dumping, causing substantial damages. The parties were all residents
  by Paul Savad, Esq.         of Suffolk County.
        Page 3-4                        Russo demanded that venue be changed to Suffolk County, and the Trust countered that
         Page 5               it could not get a fair and impartial trial in Suffolk County, due to Russo’s and his firm’s political
  Appellate Decision of
                              influence and connections to the Suffolk County judiciary. Russo had previously been Deputy
by: Itamar J. Yeger, Esq.     Supervisor of the Town of Brookhaven and Village Attorney for the Village of Bellport. He is the
        Page 6                son-in-law of a recently retired Supreme Court Justice, and an associate in the firm is the
 Appellate Decision of
        Interest              daughter of a current Suffolk County District Court Judge. Russo is also alleged to be a close
by: Elana L. Yeger, Esq.
                              personal friend of at least one of the two Supreme Court Justices who preside over Commercial
      Page 7-11
       Classifieds            Division cases, where this action would be assigned.
     CLE Calendar                       Russo moved to change venue to Suffolk County pursuant to the residency provisions of
         Page 12              CPLR §503(a). The Trust cross-moved to retain venue in Nassau County, pursuant to CPLR
    Online Back Up
   by: Isaac Steinfeld        §510(2), on the ground that an impartial trial could not be had in a proper county.
      Page 13                           The Court began its analysis by citing CPLR §503(a), which provides that venue is
   CLE Registration
                              “proper” in a county where one of the parties resides, and when the plaintiff designates an
                              improper venue, it forfeits the right to select venue, citing Hitchoff v. Air Brook Limousine, 26
                              A.D.3d 310 (2d Dept. 2006).
                                                                                           Continued on Page 2…..
     PAGE     2                                                                         VOLUME         12

         The Court noted that a party exercising venue based on being unable to get an impartial trial in a proper county
(CPLR § 510[2]), “bears a heavy burden”, quoting Deboult v. Barbosa, 2 A.D.2d 821 (3d Dept. 2001). The party must
“produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained”, and
“[c]onclusory allegations, beliefs, suspicions and feelings of possible bias are inadequate”, quoting Behrins & Behrins, P.C. v.
Chan, 40 A.D.3d 560 (2d Dept. 2001).
         The Court ruled that the Trust failed to satisfy its burden. “The mere fact that a party to an action is of some
prominence or holds an official position in the County does not justify an inference that an impartial trial cannot be had in
that County”, quoting Ingo v. Casey, 175 Misc. 805 (Sup. Ct. Westchester Co.), aff’d 260 App. Div. 1024 (2d Dept. 1940).
Furthermore, Russo was last a deputy supervisor 23 years ago, and a village attorney 3 years ago. Power and standing in the
community is not enough. If the judge assigned to the case had a relationship with Russo, the case could be reassigned to a
different judge.
         The Court cited cases holding that a fair trial could be had in the following circumstances: plaintiff’s father was a
county attorney and step-mother was a Family Court Judge; plaintiff’s wife is a law clerk to a Supreme Court Justice in the
county. Conversely, the Court cited cases where it was held that a fair trial could not be had in the following circumstances:
one of the parties was a sitting Supreme Court Justice in the same court; the plaintiff was a law secretary to two sitting
Justices in the same court; plaintiff’s spouse was a sitting Supreme Court Justice in the same court; plaintiff was the
daughter of a sitting Supreme Court Justice; the plaintiff had a “close brotherly relationship” with all of the Justices in the
         The lesson?
         Mere suspicion of undue influence is not sufficient to support a change in venue. Try to find a proper county or file
in federal court.

                              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    12                                                               PAGE   3


       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
       OCA staff will answer the call or email, obtain basic information from the
 attorney, and contact the appropriate Administrative Judge, who will make
PAGE   4                                           VOLUME     12


                  TO                                   TO
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       455 ROUTE 304, SUITE 105              CALL 845-634-2149
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     PAGE         5                                                                               VOLUME          12

      Second Department Majority Reinstates Reckless Manslaughter Indictment Against Man Making Slow
      U-Turn Across Traffic on Major Highway, Essentially Limiting Recent Court of Appeals’ Cabrera Case
                to Its Facts, While Dissent would Have Affirmed Dismissal Based Upon Cabrera.

        In the first appellate decision to cite the Court of Appeals’ decision in People v. Cabrera, a Second Department
majority found the case did not apply to circumstances where a man, after entering a highway in the wrong direction,
made a slow u-turn across three lanes of traffic, causing an accident in which a motorcyclist died.

        Defendant drove onto an exit ramp of the Belt Parkway in Brooklyn at night, ignoring at least two warning
signs. Apparently recognizing his mistake, and further ignoring grassy and paved shoulders available to him, he “made
a slow right turn across the Parkway in order to ‘loop around’ and face the correct direction of traffic.” Two
car-driving witnesses saw defendant’s car driving perpendicular to the travels lanes from right to left. They also saw the
decedent motorcyclist impact defendant’s car in the far left lane near the center median after steering left to avoid the
car. The lower court dismissed the indictment that charged defendant with criminally negligent homicide.

        The Second Department reversed. It found defendant’s action in crossing the highway while trying to make a
u-turn was a “gross deviation from the standard of care” that the statute requires. Defendant’s mistake in driving the
wrong way may be excused, but his subsequent u-turn exceeded the bounds of non-criminal behavior. Defendant himself
recognized this, blaming the accident on “‘[my] own stupidity.’” Commenting on the videotape of the area, the majority
disagreed with the dissent, finding that defendant could have used a “three point turn” in the shoulders to turn around
without backing out the exit ramp. Finally, the majority distinguished Cabrera by noting the young driver there simply
misjudged his speed around a curve in the road. “Instead, the defendant made a decision to extricate himself from his
‘wrong way’ situation without regard to the substantial and unjustifiable risk created by such decision.” Therefore, in
the majority’s view, “in contrast to the situation presented in People v Cabrera (id.), the accident herein resulted not
from a mere ‘failure to perceive a risk,’ but rather from ‘criminal risk creation.’” It also upheld a reckless driving

         In a dissent that liberally cited to Cabrera and older cases, Justice Belen would have found that defendant’s
actions did not rise to the requisite culpable level to charge with criminal negligence or criminal recklessness.”
Significantly, the dissent viewed the videotape in evidence differently from the majority, arguing that it did not show
sufficient space to turn around on the shoulder alone and noting that it was shot during the day, while defendant’s
accident occurred at night. According to the witnesses, the decedent motorcyclist was speeding while defendant was
driving slowly. Because merely driving the wrong way does not establish criminal liability, and because defendant’s acts
were evidence of only a “bad choice,” not “morally blameworthy” and a response to his own “emergency situation,” he
should not have to stand trial for criminally negligent manslaughter or reckless driving. This is true even if there was a
better alternative available to him, such as turning on the shoulder area, where “it cannot be said that the defendant was
criminally negligent or reckless because another alternative did not occur to him when he was confronted with the
frightening reality of his precarious position.”

       It will be interesting to follow how the lower courts interpret Cabrera. If this case is any indication, perhaps not
much will change.

  10 N.Y.3d 370 (2008). One lower court has already utilized Cabrera to dismiss a criminally negligent homicide based upon speeding only.
People v. Badke, 21 Misc. 3d 471; 865 N.Y.S.2d 488 (Sup. Ct. Nassau September 5, 2008) (driver crossed yellow lines going 82 miles per
hour in 55 M.P.H. zone; no other acts in evidence).
 People v. Richardson, 2008 NY Slip Op 9099, 2008 N.Y. App. Div. LEXIS 8652 (2d Dep’t November 18, 2008).
    Id. at *1-2, **2-3.
    Id. at *2, **3-4, citing Penal Law §15.05(4) (defining “criminal negligence”).
    Id. at *2-3, **4-5.
    Id. at *3, ** 6.
    Id. at *3-7, **8-17 (Belen, J., dissenting).
    Id. at *4, **8-10 (Belen, J., dissenting).

Itamar J. Yeger is the Rockland County Executive Assistant District Attorney for Appeals. He can be reached at (845) 638-5538
VOLUME        12                                                                                                         PAGE      6

      Sharply Divided Second Department Panel Finds that Insurance Policy Covered Defect in Municipal Sidewalk
      Abutting Property but Insured’s Warranty Requiring it to Comply with Local Codes was too
                                                    Ambiguous to Apply to Same Defect.

         This case is of interest to those who own property in municipalities that place the burden of repairing sidewalks
on the abutting landowner, and especially to their insurers. Antoine v. City of New York, 2008 NY Slip Op 9010, 1 (2d Dep’t
Nov. 18, 2008). There, plaintiff fell while walking on a municipal sidewalk abutting a private residence in Brooklyn, New
York. The City of New York had passed legislation mandating that abutting landowners repair sidewalk defects and are
responsible for their failures to do so. See N.Y.C. Admin. Code §19-152. Indeed, the City had issued a summons ten
months prior to the accident for the landowner’s failure to comply with the local law and repair the very defect that
caused the plaintiff’s injuries. Id. at 2.

         After plaintiff sued, the landowner sought coverage from its insurer. The insurer disclaimed, arguing that
landowner failed to comply with a policy provision “that the ‘insured premises, including but not limited to all buildings,
structures and parking lots, are in compliance with all federal, national, state and local codes and/or requirements as
respects fire, life safety (including, but not limited to: the National Fire Protection Association Life Safety Code Standard
101), building construction and building maintenance.’” Landowner instituted a third-party lawsuit against its insurer
seeking coverage. Id.

         The majority found this warranty provision to be ambiguous regarding abutting sidewalks because they are not
specifically mentioned:

       Although, under New York law, the coverage afforded by a premises liability policy extends by implication
       to that portion of an outside sidewalk necessary for access to the covered premises, we cannot say from that
       fact alone that a reasonable businessperson purchasing this policy would conclude that the only fair
       interpretation of its warranty provision would be that coverage is entirely eliminated if there are any
       violations relating to the sidewalk adjacent to the insured property which sidewalk is owned by the City
       and not mentioned in the policy.

Id. at 3. Therefore, the majority found that the insurer must defend and indemnify landowner.

         The dissent agreed that the policy in question covered the abutting sidewalk. Id. (Carni, J. dissenting). Therefore, it could not
understand how the warranty provision did not apply to the same sidewalk. The dissent would find that the contract’s warranty
provision unambiguously applied to the abutting sidewalk, and therefore allow the insurer to disclaim coverage. As proof, coverage
applied to “the premises,” while the warranty provision applied to “the premises, including but not limited to all buildings, structures
and parking lots.” Insurer should be able to disclaim because the violation was indisputably outstanding on the policy’s effective date
and continued until the accident date ten months later. Id. at 4.

         This case could have far-reaching impact on insurers – at least until they include abutting sidewalks in their landowner
warranty provisions. Practitioners should be aware of this issue in these coverage cases.

 Elana L. Yeger has opened an appellate/motion and criminal practice. She can be reached at (917) 992-9263.
   PAGE         7                                                                                              VOLUME            12

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VOLUME   12                                                                                     PAGE    9

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PAGE   10                                                                         VOLUME            12

  COMMITTEE CALENDAR                                               CLE CALENDAR
 Employment Law Committee Meeting
          December 9, 2008
             6:15 p.m.
    Law Office of Gary Graifman
      747 Chestnut Ridge Road
        Chestnut Ridge, NY

         PLEASE NOTE:
   THE DATE OF THE ETHICS CLE                                         Tuesday, December 9, 2008
 SEMINAR HAS BEEN CHANGED FROM                             CLE: Persuasive Legal Writing: Writing to Win
                                                   Time: 6:00 p.m.– 9:00 p.m. (Registration @ 5:30 p.m.) Light Dinner
  APRIL 6, 2009 TO APRIL 16, 2009.                                Level: Transitional/Non-Transitional
                                                                               Cost: $75.00
                                            Place: Rockland BOCES Instructional Services Building, #10, West Nyack, NY
      SAVE THE DATE                                          Credits: 3 (2.5 Professional Practice; .5 Ethics)

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

      Rockland BOCES                        **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
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                                               Make sure your blue evaluation forms are completed and turned in to CLE
                                                                Coordinator to receive your certificate.
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VOLUME       12                                                                                             PAGE        11

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   PAGE         12                                                                                               VOLUME            12

                                       The Lowdown on Online Backups
Online backups have recently been highly touted as a viable and efficient alternative to traditional computer backup systems. They
have gained in popularity, especially in relation to the 30+-year-old tape backup. In the words of one respected legal-technology
commentator: “Tape is so 1990’s” (Ross Kodner, The list of online backup providers keeps on growing and they
are aggressively marketing their services as a means of providing disaster recovery for businesses, in this post Katrina, 9/11, security
sensitive world.

In case you’re not up to date, online backups refers to the option for using your existing high-speed internet connection to backup your
computer system “online” over the internet. While an online backup system can be an improvised scheme for backing up your
office-based computer over the internet to a home computer, there are too many reliability and security concerns to make this method
practical. Therefore, typically online backups are done via an account you set up with an online backup service provider. This
arrangement involves reserving a specific amount of dedicated storage space on their “servers” and installing a proprietary piece of
backup software on your computer(s) to setup and manage the backup jobs.

As often is the case with cutting edge technologies that may sound good on paper, the real test is how they perform in the real world.
Online backups if done properly can provide a basic level of backup protection but it is your responsibility to perform due diligence to
ensure reliable and steady backups.

There certainly are a lot of obvious benefits to dong online backups. Just to name a few... The upfront cost savings are very appealing.
You utilize your existing, already appropriated, high-speed internet connection for your basic backup infrastructure. This frees you up
from the overhead of having to maintain your own backup devices and backup media (tapes, disk drives, etc), not to mention
complicated backup software programs. Backup tapes have a limited usage lifetime, and hard drives are prone to failure. Also,
maintaining offsite copies of your backup are by their very nature intrinsic to online backups; storing the backup copies off-site is
passé. In addition, more reputable backup providers add value by actively monitoring your backup plan for you and alerting you to
any failures or missed backup jobs. They also can (hopefully) provide expert customer service for addressing problems and dealing
ultimately with data loss.

However there are some issues that should be addressed when evaluating the suitability of online backups, which may not be immedi-
ately apparent:
         • With a reputable provider, the security of the data is not a generally a concern because the highest level of encryption
             and data security standards are employed. For guidance regarding the ethical concerns about maintaining the
             confidentiality of client data when using off-site electronic storage, see the following article from the American Bar
         • You need to be confident that the backup provider you are depending us will remain in business. For starters, you
             should find out how long the provider has been in business, the size of its customer base, long-term asset guarantees, and
             the existence of exit strategies to protect you if the company folds during your contract term. Be sure to check the
             provider’s references from businesses with backup and restoration requirements similar to yours.
         • Ensuring that backups are actually working can be challenging. Depending on the proprietary backup software used, the
             ability to monitor the status of the backup jobs will vary. You might be tempted to depend solely on the provider for
             monitoring your backup job success, but you do not want to be put into a position in which a paid provider can blame
             you for an issue with their service.
         • Because of the volume of data needing to be backed up and the relative slowness of even the fastest internet connection,
             initial backup times will be significant. More concerning are the recovery times that will be significant if your whole
             system crashes, because the data will need to downloaded over the internet to your office. Some providers address this
             issue by allowing the backup software maintain a local copy of your data concurrent with the online backup. Other
             providers offer to express-ship to you a DVD or external hard drive with the contents of your backup.
         • While online backups excel at being able to restore individual files or folders, they often cannot properly backup entire
             systems or databases. Thus if a hard drive fails or a business application utilizing a database become corrupt, you may
             have limited or no recourse to restoring your system. Even if successful, it is guaranteed to be complicated.
         • Finally, because you are paying for the amount of storage space you need, ongoing costs can be considerable and can
             quickly accelerate over time as the volume of data increases. This may offset your initial cost savings, over using an in
             house backup system. An audit of your current storage needs and anticipated growth is in order.

Owing to the above concerns, much research and investigation should go into choosing the appropriate service provider for servicing
your online backup needs. For the faint of heart, it is recommended that a local backup should still be used for your primary backup
solution, with an online backup playing only a secondary role.

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
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 Writing Course -                                        December 9, 2008             6:00 p.m.- 9:00 p.m. $ 75.00
 Best Employment Practices for Law Firms -                 January 8, 2009            6:00 p.m.- 9:00 p.m. $ 75.00
 Landlord Tenant Update -                                  January 26, 2009           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. Call the Association to place an order for a kosher meal. Please give us at
                                                 least one weeks notice.

                                         Credit is not given for partial attendance.
    Make sure your blue evaluation forms are completed and turned in to CLE Coordinator to receive your certificate.
    If you pre-pay but are unable to attend the seminar you will be refunded the full amount only upon advance notice
                                (3:00 P.M. the day of the seminar) of your non attendance.

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