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					                                 Volume 8
                                               RCBA NewsBrief                                                                      August 2010

                                                                          PERSONAL INJURY LITIGATION
      BOARD OF                                                                    Jeff
                                  On April 6, 2010 the Court of Appealsi, in a 7-0 opinion rendered a decision that will have wide sweeping ramifications
     Lynne S. Hilowitz            concerning the assumption of risk defenseii.
      Keith J. Cornell            The assumption of risk defense was traditionally limited to sports and recreational activities. Over the years its application was
       President Elect
                                  spread well beyond these confines to include most any type of activity. Unless a plaintiff could demonstrate a concealed or
    Lawrence Codispoti
       Vice President             unreasonably increased riskiii or that the defendant failed to exercise ordinary reasonable care to protect the plaintiff from
     Alan E. Goldstein            unassumed, concealed, or unreasonably increased risks summary judgment would be granted.
    Alan G. Rosenblatt            In Trupia, the infant, 11 years of age at the time of his incident, fell while sliding down a banister and suffered serious injuries.
         Secretary                His claim was primarily founded in negligent supervision. Defendant’s argued consent to the risk of falling was assumed and
     Sandria P. Garvin
     Executive Director           dismissal of the complaint was warrantediv.
         Directors:               Writing for the majority, Chief Judge Jonathan Lippman artfully and cogently discussed the comparative fault defense, and
     Glenn W. Kelleher            addressed the conundrum of how assumption of risk usurps comparative fault:
      Patrick T. Burke
     Robert D. Fenster
     Cassandra Bilotta
        Larry Gantt                               "In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable
     Robert B. Marcus                             conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of
       Ira S. Schoeps
      Shelley A. Forde                            risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the
     Larry J. Schwartz                            proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable
     Elizabeth A. Haas
   James J. Freeman, Jr.                          conduct which caused the damages" (CPLR 1411 [emphasis added]). The defendant who successfully
      Ricki H. Berger                             argues that someone accepted a “known” risk is exculpated from all legal responsibility to protect
    James M. Birnbaum

                                  He reasons that this cannot be juxtaposed with the doctrine of comparative fault as the net result is to bar any possible recovery.
  Inside This Issue               Judge Lippman went on to state, “[S]uch a renaissance of contributory negligence replete with all its common-law potency is
                                  precisely what the comparative negligence statute was enacted to avoid.” Assumption of the risk does not extend beyond the
         Page 1-2
                                  boundaries of sports, and even then the plaintiff must “under the particular circumstances” “freely and knowingly” have consented
 Personal Injury Litigation       to the risk. Perhaps the most important language for plaintiffs is that the activity need not be “risk laden.”
by Jeffrey M. Adams, Esq.         To apply the doctrine, whether to children or adults, the defendant must show that that the activity is unusually risky, beneficial,
             ~                    and they did not “in some non-culpable way” enable it.
  Commercial Litigation
     Issues of Interest           Judge George Bundy Smith authored a concurring opinion (joined by Judges Reed and Pigott). The question of assumption of
    by Paul Savad, Esq.           risk should not have been raised as the case was a negligent supervision matter. For the dissent, the majority’s opinion is
         Page 3                   simple dicta, and limited to “athletic and recreational activities”.
Writing Tip of the Month          Justice Smith opined that more questions were raised rather than answered:
by Susan Cooper, Esq.
         Page 4                                   “Most obvious among them: What exactly is "athletic or recreative" activity? Indeed, why was Luke Trupia's
        Classifieds                               chosen activity — sliding down a banister — not "recreative"? He was obviously doing it for fun”. As a
                                                  consequence, a “banister slider” is in a “better position to recover damages than a skier or bobsledder”.
         Page 5
Occupational Health Risks
      for Lawyers                 The minority acknowledged that the application of assumption of the risk is “a hard idea to understand” and that the “majority is
Submitted by Terry Marks          not “necessarily wrong”. Just that the majority made “sweeping pronouncements” that were not required and did not address the
                                  question raised.
         Page 6
      CLE Calendar
                                  Assumption of risk – a bar to any recovery or an issue for the jury regarding comparative fault – You be the Judge!

                                  i Trupia    v. Lake George Cent. School Dist., 2010 NY Slip Op 02833, Lippman Ch. J.
                                      participant in a sport assumes all commonly appreciated risks inherent in that sport but does not assume the risks of reckless or intentional
                                  ii “A

                                  conduct” (Keicher v Town of Hamburg, 291 AD2d 920, 737 NYS2d 740, 740-741 [2002]).
                                  iii   Morgan v. State of New York, 90 NY2d 471 and Benitez v. New York City Bd. of Educ., 73 NY2d 650.
                                  iv The    defense was not plead in the answer and they sought leave to amend.
                                  v     Turcotte v Fell, 68 NY2d 432, 438-439 [1986].

                                                            We welcome your articles.
                              **All articles submitted will be reviewed by the Executive Committee for approval**
VOLUME        8                                                                                                        PAGE         2

                                    COMMERCIAL LITIGATION ISSUES OF INTEREST
                          Submitted by Paul Savad, Esq., Chair, Commercial and Corporate Law Committee;
                        Joseph Churgin, Esq., and Susan Cooper, Esq., of SAVAD CHURGIN, Attorneys at Law

          A mortgage broker convinced your client to refinance her home mortgage with a bank, through a “straw buyer
 recommended by the broker. Your client thought the transaction was a refinancing rather than a sale, and attended the closing
 without an attorney. At the closing, your client’s mortgage was paid off, but she did not receive any money from the inflated contract
 sales price. After the closing, your client continued to live in the home. When the “straw buyer” failed to make mortgage payments,
 the bank commenced a foreclosure action. Your answer pleads a defense of fraud in misleading your client to believe that the
 transaction was merely a refinancing rather than a sale. Will your client defeat the bank’s motion to dismiss the fraud defense?
          The answer is yes.
          In Duetsche Bank National Trust Co. Inc. v. Golding, 27 N.Y.L.J. 5/19/10, col. 1, Duetsche Bank, as trustee for First Franklin
 Mortgage Loan Trust, commenced a mortgage foreclosure action for non-payment against David Golding, the record owner of a
 residence at 3317 Seymour Ave., Bronx, New York.
          The bank moved for summary judgment and presented a prima facie case, including evidence of the contract of sale to
 Golding by Sonya Gordon, Gordon’s receipt of payment, the mortgage, and non-payment.
          Gordon, the prior owner, who still resided in the home, defended by alleging fraud. She described herself as semi-literate
 and alleged that a real estate broker and a mortgage broker, who shared an office, approached her to refinance her home. They
 arranged for Golding, a “straw buyer”, to purchase the home, and secured the new mortgage based on an inflated valuation. Gordon,
 who had been advised by the brokers that she didn’t need an attorney, closed without one, believing that she was refinancing, not
 selling. Golding, the straw buyer, never visited the premises and was uninvolved in the transaction, except to briefly appear at the
 closing. Gordon’s mortgage was paid off, but Gordon did not receive the balance of the funds. She continued to live in the home
 without paying rent.
          The Court found that Gordon’s allegations pleaded a prima facie claim of fraud against the brokers. The question, then, was
 whether Gordon’s allegations raised a factual question about whether the bank knew of facts that would have made a reasonably
 prudent mortgagee question the transaction. If so, the Court reasoned, the bank would not be a bona fide encumbrancer for value,
 citing RPL §266 and Maiorano v. Garson, 65 A.D.3d 1300, 1302-1303 (2d Dep’t. 2009) (the mortgagor did not reside in the mortgaged
 premises and other circumstances raised a question about the mortgagor’s ownership).
          The Court ruled that there was a question about whether the brokers were acting as agents for the bank in recruiting
 Golding as the mortgagor. If not, there was still a question of whether the bank was put on notice of inquiry by Golding’s
 “conspicuous noninvolvement” in the transactions, Golding’s absence form the premises, Gordon’s lack of representation at the
 closing, an inflated valuation, and the lack of accounting for the balance of the sale price.
          The lesson?           A lender is not protected by its own ignorance if reasonably diligent inquiry would cause it to question
 the regularity of a loan transaction.

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                          Trial and Appellate Courts                               Now has an office at 120 North Main Street, New
                                                                                 City, NY. They will be handling landlord/tenant and
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                                                                                       public benefits cases, as well as continued
               Motions • Memoranda • Briefs • Oral Argument                        representation of Rockland residents that have a
              SUSAN COOPER, ESQ. (f/k/a Susan Corcoran)                             developmental disability, a mental or physical
                           845-304-2969                                                        disability, cancer or HIV.
                                                Intake will be through our regular toll-free number
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   “Her services are invaluable in my busy commercial litigation practice. I         William Flynn, the Managing Attorney of the
                    recommend her without reservation.”                                            Rockland office, at
                              - Paul Savad, Esq.-                           with contact information.
 PAGE       3                                                                              VOLUME         8

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It’s not easy to admit there is a problem. It’s even harder when                     Available for Rent
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Attorney                                                             Writing Tip of the Month
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             Serving the Legal Community since 1981                    Susan Cooper, Esq., has provided legal research and
                         246 N Main St                                 writing services to the Rockland Bar for over 25 years.
                       New City, NY 10956                              She can be reached at
                          845 634-5400

     Roventini – A Name You Can Trust
  PAGE       5                                                                                  VOLUME         8

                                  Occupational Health Risks for Lawyers
                                               If I don’t take care of myself, who will?
        The pressure cooker demands of being an attorney are constant. Long hours, detail-oriented work, and endless
deadlines can take their toll on any professional. The time and energy that attorneys give to their jobs, does not often
leave much time for themselves. Eventually, the ensuing stress can affect performance and most importantly, the
individual that is striving towards a myriad of goals.
        Steven Beldock, a New City personal injury and malpractice attorney has learned that simply paying attention
to one’s self and making even small changes to diet and fitness has helped alleviate stress.
        “You hear it all the time, but until you start exercising regularly, you really can’t believe how much it can help
manage your work stress levels,” says Beldock, a partner in Birbrower & Beldock, PC.
        Beldock has been working out at JCC Rockland ever since the organization moved into its new building more
than two years ago. The 25,000-square-foot center has a full fitness program, personal training and a nutritionist on
staff. Even if you can only work in 20 minutes a few times a week, the staff will tailor a program to meet those needs.
        Along with regular exercise, there are other ways to manage stress; finding a good support network, making
some space in the day to relax, taking up a sporting activity.
        Here are some tips to follow that can go a long way toward alleviating some of life’s daily tensions.

        1.       Seek and ask for help. Lets face it, many- if not all, lawyers have alpha personalities and like to “go-it” alone. This
                 lack of support can lend itself to falling into old and/or poor habits. Whether it’s a doctor, a coach or a friend,
                 surround yourself with a support system and engage them!
        2.       Critique and revamp your schedule. Make time to make time. Sit down and evaluate what you’re investing time
                 into a complete180 degree turn isn’t needed right now— and may never be. However, realize and amend the habits
                 that are restricting you from health and happiness.
        3.       Great energy in and great energy out. You work hard so you should be allowed to play hard — just play smart.
                 Once you’ve overhauled your schedule, set aside times to exercise, food shop, and eat healthy. Maintaining a
                 healthy diet combined with regimented exercise will reduce stress. Try to incorporate organic food into your diet
                 and exercise 4-6 times per week.
        4.       Don’t waste your breath. This may seem ridiculous to some, but providing yourself with 5-10 minutes per day to
                 practice breathing can help reduce stress. Whether at home, the gym, or in the office try to set aside time and focus
                 on smooth, controlled, and deep breaths. Neglecting to emphasize exhalation, which many people do, leads to
                 tension and pent-up stress.
        5.       Healing hands help. Treat yourself with a present from time to time and schedule a massage. Not only does it feel
                 soothing, but there are some areas of our body we can’t target like a massage therapist can. Also, if you really want
                 to reap the lasting effects of the massage, follow it up with lots of water and some light stretching.

        Even simple changes like these can result in improved mental and physical health. You’ll feel better about
yourself, and find balance as well. “Regular exercise really helped put things in perspective,” says Beldock. “By taking
some time in the day for me, I found an added benefit… work was easier to manage.”

                                                   Submitted by: Terry Marks, Development Director, JCC
                                               CLE CALENDAR
             In order to accommodate Hon. Judge Ann T. Pfau’s schedule the DATES of the
             two following seminars have changed as set forth below:
                                              Monday, September 20, 2010
                              CLE: A Day in the Life of the Chief Administrative Judge
                                                 of the State of New York
                           Time: 12:00 p.m.– 2:00 p.m. (Registration @ 11:30 a.m.) Lunch
                                          Level: Transitional/Non-Transitional
                               Cost: $50.00 in advance; $75 at the door; $85 non-members
                                                $20 paralegals and students
                               Place: LaTerrazza, 291 South Main Street, New City, NY
                                      Credits: 2 (1.5 Professional Practice; .5 Ethics)
                                              Monday, September 27, 2010
                     CLE: The Shoemaker Has No Shoes: Estate Planning, Retirement Planning and
                                         Partnership Agreements for Attorneys
                           Time: 12:00 p.m.– 2:00 p.m. (Registration @ 11:30 a.m.) Lunch
                                          Level: Transitional/Non-Transitional
                               Cost: $50.00 in advance; $75 at the door; $85 non-members
                                                $20 paralegals and students
                               Place: LaTerrazza, 291 South Main Street, New City, NY
                                      Credits: 2 (1.5 Professional Practice; .5 Ethics)

                                           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.

                                           Registration Form

September 20, 2010 CLE                                                           September 27, 2010 CLE

Address:__________________________________________________________Tel. No:_________________________________

Please make check payable to: The Foundation of the Rockland County Bar Association
                               337 North Main Street- Suite 1, New City, NY 10956
                              (845) 634-2149 or E-MAIL: LESLIE@ROCKLANDBAR.ORG TO REGISTER

                                                    **Hardship Policy**

                                                   We’re on the web

  In keeping with our long tradition of lawyers promoting social causes, the Rockland County Bar Association has
  initiated a voluntary program to help support our local community food banks. Attendees at continuing legal education
  programs may bring at least one non-perishable food item to the program for donation to a local food bank. The items
  will be collected at the door. Your whole-hearted participation is requested.