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					                                                      October 2009

President’s Message
  Lawyers are strongly encouraged to provide                                                heroes” for their selfless contribution to public
pro bono legal services to benefit poor persons.                                            causes and to our profession. Our Association
  New York State Rules of Professional Conduct,                                             has many wonderful and dedicated attorneys who
Rule 6.1                                                                                    sacrifice countless hours to pro bono causes. All
                                                                                            of the members of our Association committed to
                                                                                            pro bono will be represented by our designated
  During the last week of October we celebrate                                              pro bono heroes this year, Michael Friedman and
National Pro Bono Week. The Albany County                                                   Daniel Hurteau. Michael Friedman was integral
Bar Association and its members are active in                                               in starting the Association’s Pro se Divorce
pro bono activities throughout the year, and pro                                            Clinic and continues to devote hundreds of hours
bono week will highlight many of our programs                                               to pro bono service each year, assisting victims
and the attorneys that make them possible, as                                               of spousal abuse, initiating divorce proceedings,
well as encourage us to look for opportunities                                              and arranging for custody, support and visitation.
to meet the many needs for pro bono work in                                                 Mike has also been a dedicated mentor to new
the year ahead.                                                                             attorneys and law students, enriching our legal
  We are grateful to Hon. George B. Ceresia, Jr.,                                           community by giving his time at numerous CLE
Administrative Law Judge for the Third Judicial                                             seminars and through his long-standing, widely
District, for leading the Third Judicial District’s                                         read and entertaining column on Family Law in
Pro Bono Committee, as well as hosting a breakfast meeting on           our Association’s newsletter. Mike leads by example, and is one of
September 8, 2009, to encourage local law firms to establish pro        many successful attorneys who are dedicated to pro bono service.
bono policies. The meeting was held at what is commonly known           Daniel Hurteau is a partner with Nixon Peabody and in charge
as the “White Courtroom” at the Albany County Courthouse.               of his firm’s pro bono program. In addition to his own pro bono
Recent renovations at the courtroom require it to be renamed the        activities, Dan sits down with every new pro bono client his firm
“Earth-tone Courtroom”. We are pleased that progress is being           takes, supervises and mentors the responsible attorneys. Dan serves
made in the Albany County Courthouse renovation project and we          on our Association’s Board of Directors and is also our Association
will continue to push for the completion of these long overdue          Pro Bono Chair. Dan was integral in the formation of his firm’s pro
renovations.                                                            bono policy, and he generously offers his time and experience to
  On Friday, October 23, 2009, Hon. Jonathan Lippman will host          other firms in the region seeking to establish a pro bono policy. Dan
a reception at the New York State Bar Association to start pro          and his firm are great examples of commitment to pro bono.
bono week. During the week the Albany County Bar Association               On Friday October 16, 2009, from 5:30 p.m. to 7:30 p.m. our
will be teaming up with the Legal Aid Society of Northeastern           Association will host a Wine Tasting evening at Angelo’s 677
New York, New York State Bar Association, The Legal Project,            Prime. The Wine Tasting evening offers wonderful appetizers and
and Third Judicial District Pro Bono Committee with pro bono            food items from Angelo’s, paired with a unique and distinguished
programs for the benefit of the general public, as well as attorneys.   array of wines provided by SMD Selections, a local wine distributor.
On Tuesday, October 27, 2009, The Legal Aid Society will sponsor        There will be a silent auction of items donated by businesses and
free Bankruptcy clinics for the public, at the Albany County and        friends of the Albany County Bar Association. All monies raised
Rensselaer County Courthouses from 2:00 p.m. - 4:30 p.m. On             by the silent auction will go to our Albany County Bar Foundation.
Wednesday, October 28, 2009, the Albany County Bar Association          Due to the nature of the event, and the reduced admission price for
will have free estate planning clinics at the same time and location.   ACBA members and their guests, it is recommended that tickets be
On Thursday, October 29, 2009, The Legal Project will host a            ordered in advance.
mortgage foreclosure workshop for the benefit of homeowners                Please make a point to set the evening of October 16th aside on
at the Albany County Courthouse from 2:00 p.m. to 4:30 p.m.             your calendar to enjoy our Association’s social event of the fall, and
Also on Thursday, there will be free CLE training for attorneys         to help support our Albany County Bar Foundation.
representing prisoners on Section 1983 claims at 10:00 a.m. at the
U.S. District Court, Foley Courthouse, in Albany.                                                             David P. Miranda, President
  Throughout the week, providers of pro bono services will have a                                             518-452-5600
display at the Empire State Plaza recognizing our region’s “pro bono                                          dpm@hrfmlaw.com
What’s Inside...                                                                                                of $195,000 to Domestic Violence Agencies
                                                                                                                to assist victims in the Capital District;
                                                                                                            *   Bike Safety Day which has donated over
Change of Scene ......................................... ...........................         Page 3            300 helmets to underprivileged kids in the
                                                                                                                Capital District;
Classified ................................................................................   Page 3        *   Youth Court is a voluntary alternative to
Torts and Civil Practice ........................................................             Page 4            the criminal justice system for young
                                                                                                                people who have committed a crime
Bench and Bar In The News .................................................                   Page 5            or an offense. The goal of Youth Court is to
Environmental Update .............................. ...........................               Page 6            intervene in early anti-social, delinquent,
                                                                                                                and criminal behavior, and to reduce the
Young Lawyers Committee ....................... ...........................                   Page 7            incidence and prevent the escalation of
Capital Region Reporter .......................................................               Page 8            such behavior. Youth Court strives to
Pro Bono .................. ..............................................................    Page 10-11        promote feelings of self esteem and a
                                                                                                                desire for self improvement, and to foster
Family Law Update ...............................................................             Page 12           a healthy attitude towards rules and
Judge Duggan ........................................................................         Page 14-15        authority. Youth Court also offers a law-
                                                                                                                related education program for young
Labor & Employment ...........................................................                Page 16           people who seek to become members of
Clarence Darrow Vignettes ..................................................                  Page 16-17        the court.
Continuing Legal Education ...................... ..........................                  Page 18       Please see page 19 for additional details and
                                                                                                            registration information. Hope to see you
                                                                                                            there!!
 New Admission                                              Since the fall of 2000, the program has
                                                            obtained internships for over 150 students      Nominations Wanted
The Albany County Bar Association would                     and has highlighted opportunities for the
like to welcome the following new members                   practice of law for minority students in the    Albany Law School’s Kate Stoneman
into the Association: Wayne L. Burton, Ann                  Albany area.                                    Committee is currently seeking nominations
Marie I. Cruz, John M. Czajka, Stephanie                                                                    for the Kate Stoneman Awards, given annually
A. Henry, Richard E. Honen, Heather Smith                   The program has also been the recipient         to individuals who are committed to actively
Hussar, Courtnie C. Kirker, Alessandra D.                   of awards from both the New York State          seeking change and expanding opportunities
Klug, Christopher M. Klug, Jill A. Loew,                    Bar Association and the American Bar            for women in the legal profession.
Jaime Czajka Louridas, Scott D. Lukowki,                    Association.
Hon. Christopher J. McCarthy, Malcolm                                                                       The deadline for nominations is Oct. 30, 2009.
McPherson, Shalini Natesan, Kasim S. Razvi,                 We salute those firms that have participated    For more information, or for a nomination
Karen A. Rhoades, Ruth Ann Rowley, Arthur                   and look forward to welcoming new firms in      form, visit www.katestoneman.org or contact
Shapiro, Eamonn P. Trainor and Roderick D.                  the future to provide these opportunities to    Christina Sebastian at (518) 445-3361 or
Woods. Welcome!                                             broaden the complexion of the Albany legal      cseba@albanylaw.edu. Award          recipients
                                                            community.                                      will be recognized at the 16th Annual Kate
                                                                                                            Stoneman Day celebration, to be held March
Diversity Program                                           Albany County Bar                               2010 at Albany Law School to coincide with
Celebrates 10th Year                                        Association Wine Tasting                        Women’s History Month.

The Albany County Bar Association                           The Albany County Bar Association, on Oct.      The awards are presented in honor of Kate
Diversity Internship Program begins its                     16th, 2009 at 5:30 - 7:30, will host the Fall   Stoneman, the first woman admitted to practice
10th year of service this fall. This semester               Wine Tasting at Angelo’s 677 Prime on           law in New York State and the first female
the following firms are participating and                   Broadway in Albany.                             graduate of Albany Law School in 1898.
have minority interns working for them.                                                                     Previous winners span a variety of public
                                                            In the past, our Foundation has funded the      and private practitioners, judges, and law
Carter Conboy Case Blackmore                                following programs, which we hope to            professors.
   Maloney & Laird                                          continue funding through the silent auction:
David Taylor & Associates
Deilly, Mooney & Glastettler, LLP                           *    Senior Citizens Law Day, which assists
Iseman, Cunningham, Riester & Hyde, LLP                          and supplies seniors with legal
Nixon Peabody, LLP                                               information;
Whiteman Osterman & Hanna LLP                               *    The Annual Law Day Run Against
Wilson Elser Moskowitz Edelman                                   Domestic Violence, which, since its
  & Dicker, LLP                                                  inception in 1992, has donated in excess
Judicial Council of The Second Change of Scene                                                       Classified
Circuit Announcement For
                               If you have relocated and would like your                             Please respond to the ACBA’s office for
Bankruptcy Judgeship           updated information listed in our monthly
                                                    newsletter, please email us at acba@
                                                                                                     classified ads with our code.
The Second Circuit Judicial Council invites         albanycountybar.com or fax us at 445-7511.
applications from highly-qualified candidates                                                        Available - Former New York State
for a Bankruptcy Judge position in the                                                               Unemployment Insurance Appeal Board Judge
Southern District of New York. The person           Courtnie C. Kirker has opened The Kirker         is now available to handle cases on behalf of
selected will maintain chambers in New York,        Family Law Firm at 425 Kenwood Avenue,           claimants and employers appearing before the
New York. The selection process will be             Albany, NY 12054. Tel: 439-3100; Fax: 439-       Board. Please contact Sharon M. Beilinson at
confidential and competitive. Applicants will       9651.                                            439-2436 or 265-2599.
be considered without regard to race, color,
age, gender, religion, ethnicity, national origin   Norah M. Murphy is now Staff Counsel             Office, Satellite Office/Space Sharing
or disability.                                      for Traveler’s Insurance Company within          Opportunity - Share a high-speed copier,
                                                    the Law Office of Laurie G. Ogden, 900           fax, high speed scanner, phone system,
The term of office is 14 years. The current         Watervliet Shaker Road, Suite 210, P. O. Box     internet,    Microsoft   exchange      server,
annual salary is $160,080. To be qualified          12699, Albany, NY 12212-2699. Tel: 862-          supplies, receptionist and more. Reception
for the appointment applicants must: 1. Be          7300; Fax: 862-7322; E-mail:nmmurphy@            area, secretarial area, conference room,
admitted to practice before the highest court of    travelers.com.                                   library, kitchen and onsite file storage. On
at least one state, the District of Columbia, or                                                     site parking! The building is 7/10 mile off
the Commonwealth of Puerto Rico; 2. Possess         Karen A. Rhoades has opened her own              Broadway on Route 29 before the intersection
a membership in good standing in every bar          practice at 428 Sand Creek Road, Albany,         of West Avenue and just down the street from
in which membership is held; and 3. Have at         NY 12205. Tel: 482-2500; Fax: 438-2304;          the Golf and Polo Club. Please call Sarah B.
least five years of legal practice experience.      E-mail: Karen@krhoadeslaw.com.                   Foulke, Esq., MBA at 583-0523, or Brandi
                                                                                                     Burns, Esq. at 583-0595. All inquiries will be
Application forms will be distributed               Larissa C. Wasyl is now with the Counsel’s       kept confidential.
commencing on Monday, September 14,                 Office of the New York State Department
2009 and may be obtained from the Court’s           of Labor, located at the State Office Building   Office Space Available – 1200 square feet,
website at www.ca2.uscourts.gov or by calling       Campus, Building 12, Room 509, Albany,           ideal for 2 or 3 lawyers. Also, single office with
(212) 857-8700 or faxing (212) 857-8680.            New York 12240-0005. Tel: 457-4380; Fax:         associated secretarial space. Newly renovated
Completed applications must be received no          485-1819; E-mail: Larissa.Wasyl@labor.           historic building. One block from Courthouse.
later than noon EST on Friday, October 23,          state.ny.us                                      Office cleaning and utilities included. Call
2009.                                                                                                Patty at 449-5400.

Capital District Paralegal                           Speakers Bureau
                                                                                                     The New Entertainment
Association                                         If you have participated in a speaking
                                                                                                Books Are Here!
                                                    engagement, please remit the details to the
The Capital District Paralegals Association         Bar Association Office for inclusion in our They’re Back!       The Albany County Bar
will be sponsoring two CLE Programs at              newsletter, Fax: 445-7511 or E-mail: acba@ Association is once again selling the
5:45 p.m. (Registration) and 6:00 p.m. – 7:30       albanycountybar.com.                        Entertainment Book!! Only $30 this year!! Get
p.m.                                                                                            a very early start on your Holiday shopping! It
                                                                                                makes a wonderful gift, or keep it for yourself
“Criminal Law” on October 20th at Maria
College’s Main Building Student Lounge, 700
                                                    Book Review                                 and get great savings at area businesses,
New Scotland Avenue, Albany with speakers           Colonie Town Justice Peter Crummey restaurants and activities. All proceeds go to
Gaspar Castillo and Mark Caruso. The fee is         will review Pulitzer prize-winner James benefit our Pro Bono Program! Contact us for
$10 for members and $15 for non-members.            MacGregor Burn’s new book: Packing the further details or just stop in and pick one up!
                                                    Court: The Rise of Judicial Power and the
“Real Estate Law” on November 17th at Buca          Coming Crisis of the Supreme Court on
Di Beppo, 44 Wolf Rd., Albany where Mark            October 28th at the William K. Sanford Town
Juneau will be the speaker. The fee (including      Library, 629 Albany Shaker Road, at 12:15.
a meal) is $20 for members and $25 for non-         Bring your lunch!
members.

Please contact     cle@cdpa.info      for   your
reservations.
                                                                   liability to plaintiff and contribution to his injuries. Therefore,
Torts and Civil Practice                                           the third-party claims of defendant required the jury to consider
                                                                   DASNY and BBL’s liability to plaintiff, which would require a
                                                                   charge of Labor Law § 200 to instruct the jury as to the duty they
                                                                   owed to plaintiff to maintain a safe workplace. Therefore, a new
                                                                   trial must be held to determine the percentage of liability, if any,
                                                                   of DASNY and BBL to plaintiffs.

                                                                   Roadway Defect

                   By: Laura M. Jordan, Esq.                       Madden v Town of Green et al. (Garry, J., 506369 [7/30/09])
                     Powers & Santola, LLP
                  ljordan@powers-santola.com                       Plaintiff was injured while driving his vehicle in the Town of
                                                                   Green when his vehicle left the roadway and landed on its roof.
                                                                   Plaintiff has no memory of the accident but his passenger testified
Improper Jury Charge Leads to Trial #3                             that, just prior to the accident, a dump truck came into plaintiff’s
                                                                   lane of traffic and plaintiff steered his vehicle onto the shoulder
Gadani v Dormitory Auth. of the State of New York, et al.          to avoid the truck, then steered back onto the paved roadway and
and DeBrino Caulking Assocs. Inc., et al (Spain, J.P., 505894      subsequently lost control of the vehicle, went off the roadway
[7/30/09])                                                         near a bridge and culvert, descended a slope, crossed a stream,
                                                                   and came to rest of the roof of the vehicle. Plaintiff brought suit
Due to an error in the charge given to the jury during the second  against the Town of Green and the owner and driver of the dump
trial of this personal injury action, the Court reversed so much   truck seeking recovery for his injuries and defendants moved for
of the judgment which found defendant DeBrino 100% at              summary judgment.
fault and remitted the matter for a third trial on the issue of the
responsibility of third-party DASNY and/or BBL to contribute In his personal injury action against the Town of Green, plaintiff
or indemnify defendant for the verdict against it.                   claimed the Town was negligent in its design and installation of
                                                                     the guardrail at the scene of the accident, which claim was not
Plaintiff was injured after slipping on ice and falling while at his subject to dismissal based upon the Town’s prior written notice
work site. The land where plaintiff fell was owned by DASNY. statute. Furthermore, the Court found a question of fact existed
Among other defendants, plaintiff sued DASNY, defendant as to whether the Town complied with applicable standards at
DeBrino (masonry prime contractor) and BBL (project manager) the time the culvert and guardrail were constructed as the Town
alleging common-law negligence and Labor Law violations. failed to set forth any proof in that regard. Additionally, there
Prior to the second trial, summary judgment was granted to were questions of fact presented as to whether or not the Town
DASNY and BBL dismissing plaintiff’s direct claims for had undergone significant repairs or reconstruction of the subject
recovery against them. However, DASNY and BBL remained roadway sufficient enough to obligate the Town to upgrade the
third-party defendants due to defendant’s cross-claims seeking culvert and guardrail in 1996 as there was limited proof before
contribution and/or indemnification. During the second trial, the court as to the nature and extent of the “major” repaving the
Supreme Court asked to jury to consider the potential liability highway underwent in 1996.
of third-party defendants DASNY and BBL only if they found
defendant to be liable. The jury found defendant 100% at fault The owner and driver of the dump truck that allegedly swerved
for plaintiff’s injuries and awarded damages to plaintiff.           into plaintiff’s lane of travel also moved for summary judgment
                                                                     claiming their actions could not have been the proximate cause
Although requested by defendant at the close of proof, Supreme of plaintiff’s accident. However, the plaintiff’s proof, presented
Court failed to give the jury an instruction as to DANSY and through the testimony of plaintiff’s passenger at the time of the
BBL’s duty under Labor Law § 200 but rather charged the jury accident as plaintiff was amnesic to the events, established that
on common-law negligence as to DASNY and BBL and only plaintiff abruptly swerved to the right just after his passenger
charged Labor Law § 200 as to defendant’s duty. On appeal by observed the dump truck in their lane, which could provided a
defendant, the Court found it was reversible error for Supreme basis for a jury to infer that plaintiff also saw the dump truck in
Court to not charge the jury on Labor Law § 200 as it applied his lane prior to this chain of events. Given the lesser standard of
to DASNY and BBL. The Court held that even though the proof on this issue given plaintiff’s amnesia, such testimony was
plaintiff could not enforce any direct claims against the third- sufficient to avoid summary judgment.
party defendants, defendant’s claims for contribution and/or
indemnification are premised upon DASNY and BBL’s alleged
 Albany County Bar Association
 Judicial Qualifications Committee
On September 22, 2009, the Albany County Bar Association
                                                                                                                           5
                                                                       Kenneth S. Ritzenberg, Dean S. Sommer and Kevin M. Young
                                                                       were recognized in the 2009 Upstate Edition of New York Super
                                                                       Lawyers. Super Lawyers magazine names attorneys in each state
                                                                       who received the highest point totals, as chosen by their peers
Judicial Qualifications Committee convened to interview and            and through the independent research of Law & Politics. Mr.
evaluate the New York State Supreme Court candidates from              Ritzenberg was listed for Education Law, and both Mr. Sommer
the 3rd Judicial District. After the interviews and discussion the     and Mr. Young in the practice of Environmental Law.
members of the Committee made the following determinations
as to each of the following candidates: Peter A. Lynch – “well-        Dean S. Sommer was listed in the 2010 edition of The Best
qualified”; Stephan Schick – “well-qualified”; Hon. Rachel             Lawyers in America. Best Lawyers compiles lists of outstanding
                                                                       attorneys by conducting peer-review surveys in which leading
Kretser – “well-qualified”; Hon. Gerard E. Maney – “qualified”.
                                                                       lawyers confidentially evaluate their professional peers. Mr.
There was a quorum of at least 11 Committee members present.           Sommer was listed in Environmental Law.
The Albany County Bar Association Judicial Qualifications              Kenneth Ritzenberg maintains an extensive education law
Committee reviews and passes on the qualifications of judicial         practice with a primary focus in special education. He has
candidates nominated to, filed nomination petitions for, or            represented over 20 school districts and hundreds of families in
otherwise applied for judicial office in Supreme Court in the          administrative proceedings and in federal court throughout New
Third Judicial District, Albany County Court, Albany County            York State.
Surrogate Court, Family Court of Albany County, Supreme
Court, Appellate Division Third Department, New York Court of          Dean Sommer concentrates on the redevelopment of brown-
Appeals, and local federal courts. The Association is supportive       field properties and on the litigation and/or negotiation of
of a diverse, qualified, and respected judiciary, without regard for   environmental and toxic tort matters addressing the release of
political affiliation.                                                 hazardous substances, hazardous waste, petroleum and solid
                                                                       waste into the environment.

                                                                       Kevin Young serves as counsel to over 20 municipalities,
Bench and Bar In the News                                              numerous manufacturing facilities and developers. He assists
News to share? E-mail to acba@albanycountybar.com                      clients in achieving their business and municipal objectives
                                                                       while complying with environmental and land use regulations.
Howard A. Levine, Senior Counsel with the firm of Whiteman
Osterman & Hanna, was given the Dr. James M. Bell                      Debra J. Young of Thuillez, Ford, Gold, Butler & Young,
Humanitarian Award by The Parsons Child and Family Center              LLP has been named a Super Lawyer in the 2009 Corporate
at the Albany Country Club on September 24, 2009. The Award            Counsel Edition of Super Lawyers Magazine. Ms. Young was
is names in honor of Dr. James M. Bell, a pioneering Child             also published in the 4th Quarter edition of Physician Insurer, a
Psychiatrist. Judge Levine has been involved in the legal field        PIAA publication for the medical professional liability insurance
since 1956 as a lawyer in private practice, as a District Attorney     industry. Ms. Young was selected by PIAA to contribute an
and as a Court of Appeals Judge.                                       article on a case that affects the health care industry.

Nicholas Mesiti and David Miranda, partners with the firm
Heslin Rothenberg Farley & Mesiti, were named as “New
York Super Lawyers” by Law & Politics and the publishers of
Hudson Valley magazine. Mr. Mesiti was named in the field
of intellectual property law and Mr. Miranda was named in the
field of intellectual property litigation.

Dean S. Sommer and Kevin M. Young were recognized in the
2009 Chambers USA Guide for their work in Environmental
Law. The firm placed among the top 5 environmental law
practices in New York State, and has ranked among the top 10
for seven years. The guide states that clients lauded the firm
for “prompt service, quick responses and brilliant knowledge of
impending environmental issues.”
                                                                     Board, acting as lead agency, conducted its environmental review
  Environmental Update –                                             of the proposed project pursuant to the detailed requirements
  October 2009                                                       of SEQRA. By May 2008, all approvals were obtained and
                                                                     Beech-Nut commenced construction of its new Town of Florida
                                                                     facility.

                                                                     The Village of Canajoharie (Village) brought a joint CPLR Article
                                                                     78 and declaratory ruling proceeding in Montgomery County
                                                                     Supreme Court alleging violations of SEQRA by the Florida
                                                                     Planning Board (as well as General Municipal Law violation
                                                                     relating to financing of the project). The Village argued, among
                                                                     other things, that the Florida Planning Board violated SEQRA
                                                                     by illegally segmented the review of the relocation project
                  By: Gary S. Bowitch, Esq.
                                                                     by failing to also look at the environmental impacts of the
                                                                     abandonment of Beech-Nut’s Canajoharie facility and by failing
                  bowitchlaw@earthlink.net
                                                                     to take the required “hard look” at project alternatives such as
                                                                     “no action” or renovating the Canajoharie facility. Petitioner’s
                                                                     request for a temporary restraining order and injunctive relief to
          Standing To Challenge Environmental                        stop the construction were denied after a hearing. Thereafter, the
              Reviews At Issue Once Again                            Supreme Court dismissed the entire petition ruling, among other
                                                                     things, that the Village lacked standing to challenge the Town
New York courts have grappled for many years with the issue of       Planning Board’s SEQRA review. The Village appealed.
who has legal standing to challenge the environmental review,
under New York’s State Environmental Quality Review Act              The Third Department first summarized the rules surrounding
(SEQRA), of proposed development project by a governmental           standing to challenge a SEQRA decision. Citing Society of
agency (such as local planning board). This issue has been a         Plastics Indus., the Third Department noted that to obtain
contentious one since the Court of Appeals decided Society of        standing to challenge an agency’s compliance with SEQRA,
Plastics Indus. v. County of Suffolk, 77 NY2d 761 (1991), in         the challenger must demonstrate that it “sustained an injury in
which the Court held that a party seeking to challenge an agency’s   fact different from that of the public at large and one that falls
compliance with SEQRA must first show that it has suffered an        within the zone of interest protected by SEQRA.” A SEQRA
injury different from that of the public at large and that such      challenger must also show that it will “suffer an injury that is
injury is within SEQRA’s “zone of interest.” Numerous cases,         environmental and not solely economic in nature.” Finally, this
many commenced by environmental or citizen groups seeking            Court explained that for a municipality (such as the Village) to
to challenge the SEQRA review of a proposed project by a local       obtain standing to challenge a SEQRA determination, it must
governing board, have grappled with the scope and intent of this     demonstrate that its rights -- personal or property -- either for
Society of Plastics standing rule. This article briefly highlights   itself or in its representative capacity, will be “directly and
two recent cases on this issue.                                      specifically affected” in a manner different from damage suffered
                                                                     by the public at large.
This summer, in Village of Canajoharie v. Planning Board of
the Town of Florida, et al., 63 A.D.3d 1498, (3rd Dept. 2009),       In examining the Village’s Article 78 petition (in a light most
the Appellate Division, Third Department, had to address             favorable to the Village), the Court found that the Village did not
whether the Village of Canajoharie had standing to challenge         establish that it would “suffer a specific or direct environmental
the environmental review of a proposed manufacturing facility        harm as a result of the proposed project.” The Court also stated,
conducted by the Planning Board of the Town of Florida, a town       in a pointed footnote, that because the Village is about 20 miles
about 20 miles away from the Village. The facts are as follows:      away from the proposed project site in the Town of Florida, that
Beech-Nut Nutrition Corporation (Beech Nut) decided in 2007          the Village is “most certainly not presumptively aggrieved by
to consolidate its manufacturing and corporate headquarters to       it.” Instead, the Court found that the Village only alleged that
a new facility to be located in an industrial park in the Town of    the shuttering of the Beech-Nut Canajoharie facility would cause
Florida. As a result, Beech-Nut planned to close two existing        general economic harm, such as loss of employment and tax
manufacturing facilities, one of which was the Beech-Nut factory     revenue, impacts on housing values and increased tax burden on
located in the Village of Canajoharie. In order to undertake this    Village property owners. Moreover, the Court pointed out that
relocation and consolidation, Beech-Nut applied to the Town of       even these solely economic harms do not arise from the Beech-
Florida Planning Board (Florida Planning Board) for site plan        Nut’s proposed new facility in the Town of Florida, but only
approval. As part of the site plan review, the Florida Planning      from Beech-Nut’s decision to shut down all of its operations,
including those at the Canajoharie plant, and transfer them to
the new location. Given these factors, the Court ruled that since     Young Lawyers Committee
economic injury alone does not confer standing to sue under
SEQRA, the Village lacked standing to challenge the adequacy
of the Florida Planning Board’s SEQRA review of the Beech-            Looking for a great way to get involved with the Bar Association,
Nut project.                                                          socialize with colleagues and relax after a stressful week?
                                                                      Albany County Bar Association’s Fall Wine Tasting is the
As noted above, the Court of Appeals decision in Society of           perfect answer! Join us on Friday, October 16th at Angelo’s
Plastics was critical to the Village of Canajoharie Court’s SEQRA     677 Prime from 5:30-7:30 pm for an excellent pairing of wine
standing analysis. The Society of Plastics analysis is also the       and appetizers. The cost is $35.00 for ACBA members and
main subject of an important case now before the New York             $45.00 for guests. There will also be a silent auction to benefit
Court of Appeals. On September 15, 2009, the Court of Appeals         the Albany County Bar Foundation. We look forward to seeing
heard arguments in the Matter of Save the Pine Bush, Inc. et al. v.   you there!
Common Council of City of Albany, et al. This case involves a
challenge by Save the Pine Bush, an environmental organization        In connection with October 25th-31st being designated as Pro
and several individuals to a proposed hotel development near the      Bono Week, we encourage all attorneys to seek opportunities
Albany Pine Bush Preserve. The petitioners brought an Article         to provide legal assistance to persons who cannot afford them.
78 proceeding challenging the Albany Common Council’s                 We are always interested in feedback from our members and
SEQRA review of the project developer’s rezoning application.         seek ideas to support the community, while promoting the legal
Albany County Supreme Court found that the petitioners had            profession. Let us know how YLC members can join your
standing (and also found that the Common Council failed to            efforts and offer greater assistance to more individuals. All
take the requisite ‘hard look’ at the environmental impact of the     ACBA members can also register their practice areas with the
proposed project on rare plants and animals in the Pine Bush).        ACBA office to receive pro bono referrals.
The City of Albany and the developer appealed. The Third
Department, in a split 3-2 decision, upheld the Supreme Court’s       To join the Young Lawyers Committee you must first be a
decision, finding that Save the Pine Bush and the individual          member of the ACBA. Membership in the YLC is free of cost
petitioners indeed had standing to bring this challenge, based        to ACBA members who are fewer than 10 years in practice.
primarily on their unique and long-standing relationship to the       Applications are available at http://www.albanycountybar.com.
Pine Bush (the Court also affirmed that the Common Council            Watch for email announcements with more information about
failed to take the requisite ‘hard look’).                            our meetings/events. If you are not on our mailing list, sign
                                                                      up today by contacting Crystal Doolity or Sonya Smelyansky
Thus, the issue before the Court of Appeals centers on the            VanBortel as listed below, or through the ACBA office.
scope and application of the standing rules, including the
“special injury” rule, established by its 1991 decision in
Society of Plastics. A decision in this case is expected soon.
Environmentalists, developers and municipal officials alike
anxiously await a ruling on this appeal, hoping that, at the very
least, the Court of Appeals will provide litigants with some
more direction and clarity on this critical question of who has
legal standing to challenge an agency’s environmental review.
I plan on writing a review of the Court of Appeals’ decision in
this matter in an upcoming environmental update.


                                                                               Sonya Smelyanski-          Crystal Doolity, Co-Chair,
                                                                              VanBortel, Co-Chair,          Maynard, O’Connor,
                                                                           Rapport, Meyers, Whitbeck,     Smith and Catalinotto, LLP,
                                                                          Shaw, & Rodenhausen, LLP,         doolity@moscllp.com,
                                                                        ssmelyansky@rapportmeyers.com,             465-3553
                                                                                    828-9444
                                                                     third-party involved in the collision (but did not consolidate
 Capital Region Verdict Reporter                                     the cases) and the allegations in those pleadings were allegedly
 October- 2009                                                       utilized by the defense during the Trial.

                                                                     After deliberating for one hour, the jury returned a verdict
                                                                     for the defendant Ski Plattekill, Inc.



                                                                     Local Nursing Home Settles Negligence Case
                                                                     Result:                    $330,000.00
                                                                                                settlement pending in
                                                                                                Surrogate’s Court
          By: Ryan T. Donovan and Michael C. Conway                  Caption:                   JoAnn DeViddio as Administratrix
               Harris Conway & Donovan, PLLC                                                    of the Estate of Joyce J. Kyea
                verdicts@capitalregionlaw.com                                                   v. Undisclosed Nursing Home
Thank you again for the submissions and the continued support
                                                                     Court:                     Rensselaer Supreme
that we have been receiving relative to this column. Please
                                                                     Judge:                     Hon. George B. Ceresia
continue to submit the forms- which can be found at www.
                                                                     Date of Settlement:        May of 2009
albanycountybar.com to Verdicts@Capitalregionlaw.com or fax
                                                                     Plaintiff’s Attorney: Sean J. Doolan, Esq.
them to Harris, Conway & Donovan, PLLC at 432-1996.
                                                                     Defense Attorneys:         Undisclosed
                                                                     Facts/Injuries:            In 2002, at the age of 63, Joyce Kyea
These reports are based upon facts volunteered by the reporting
                                                                     was admitted to the Defendant’s nursing home due to multiple
attorney; none of these facts were independently investigated or
                                                                     medical problems. After Ms. Kyea passed away in 2004, her
gathered by the editors’ of this column. Opposing counsel is given
                                                                     Estate alleged that the Plaintiff suffered a fall from a mechanical
an opportunity to comment and, if they request, or if no response
                                                                     lift, hitting the occipital area of her head and the right side of
is received from them, their name(s) is/are not published.
                                                                     her body. As a result, it was alleged that Ms. Kyea’s proximal
                                                                     tibia and fibula were fractured. The plaintiff also alleged that the
Ski Plattekill Obtains Defense Verdict in Tubing Case                defendant failed to keep Ms. Kyea’s skin clean and dry, which
                                                                     caused her skin to breakdown and bedsores to develop. Ms.
Result:                    Verdict for the Defendant                 Kyea also suffered a left hip ulcer infection, which progressed to
Caption:                   Undisclosed v. Ski Plattekill, Inc.       osteomyelitis (a bone infection). The Plaintiff further alleged that
Court:                     Delaware Supreme                          the Defendant failed to properly and timely diagnose and treat
Judge:                     Hon. Eugene Peckham                       this infection, which caused the development of the infection.
Date of Verdict:           August 19, 2009                           Finally, the plaintiff alleged that Ms. Kyea suffered from fecal
Plaintiff’s Attorney:      Not disclosed                             impaction, which resulted in the loss of appetite leading to
Defense Attorney:           Matthew J. Kelly, Esq. of                malnutrition and dehydration- and contributing to the bedsores.
                           Roemer Wallens & Mineaux
Facts/Injuries:            While tubing at Defendant Ski The parties reached a settlement agreement of $330,000.00-
Plattekill’s resort in Roxbury, New York, Plaintiff collided with which has been submitted to Rensselaer County Surrogate’s
another tuber who stood in or about the tube run. The 37 year- Court for approval.
old Plaintiff suffered a compression fracture of T12 and assorted
bruising and swelling, which required hospital treatment and
physical therapy, as well as three months of lost time from work.
The Plaintiff’s sports, recreation and educational safety expert
testified that the snow tubing hill was improperly designed
because a proper layout would have prevented pedestrians from
entering occupied tubing lanes. Plaintiff’s expert also indicated
that the facility was operationally deficient- in failing to have
appropriate staffing. The operations manager and the president
for Ski Plattekill, Inc. disagreed with the conclusions drawn by
Plaintiff’s expert and claimed that the snow tubing course was
reasonably safe. In a separate case, the Plaintiff had sued the
 REMEMBERING BILL                                                                    Albany County Bar
                                                                                    Association Newsletter
              By: Matthew J. Kelly, Esq.
                                                                                    Barbara Davis, Editor
              Roemer, Wallens & Mineaux LLP
                                                                                 The Albany County Bar Association
             It was a cold winter Tuesday in the early 1980s.                      Newsletter is published monthly
             It was morning in Albany Police Court and the                     by the Albany County Bar Association.
             attorneys jammed into Tom Keegan’s office to plea
bargain. I had a file, a client, and no conception of what I was
doing. Judge Keegan called my case and my voice cracked as                       We welcome the submission of ar-
I requested an ACOD for an assault, third. I heard nothing in                          ticles or other items of
response, but saw raised eyebrows on the Judge, a smirk from                     interest to the bar and also encour-
the ADA, and glances of pity from the attorneys scattered on the                       age your comments on
couch, the chairs, and standing in a bunch along the back wall.                    the ACBA, recent articles, col-
I was very uncomfortable. But, in an instant, I was rescued. A
melodious voice called out “He meant Dis Con and a hundred.”
                                                                                        umns or other letters.

There was great laughter and the Judge complimented me for my                     The ACBA may reject or edit for
quick understanding. I turned to nod to the voice and got a smile                     style and length any article
from the man who had a big enough heart to save a young lawyer                  or letters submitted (Anonymous let-
from being scoured and ridiculed.                                                       ters are not published).
After that, I would step into courtrooms in the county courthouse
and the towns and villages and see that man as he stood firmly,                     The views expressed in the let-
dressed smartly, and always, always had a smile and big hello for                    ters and columns reflect the
all the lawyers in the line. But, he did more. No matter the time,                 opinions of the authors and may
if you needed to get an opinion on a criminal matter, on how to                          not reflect the views
approach this ADA or that one, he was ready for you and would
give you all the time you needed.                                            of the Association, its Officers or Directors.

He went further, he shared his knowledge, his experience, and                      Address all communications to:
his humanity by giving the best Albany County Bar Association
lecture on the law I ever heard –                                                          The Editor at
        “What to do when the phone rings at 2:00 a.m.”                             Albany County Bar Association
                                                                                       The Stedman House,
His practical advice about obtaining a speedy arraignment and a                      1 Lodge Street, 2nd Floor
bail recommendation was priceless. Yet, he also wove into the                           Albany, NY 12207
lecture the Constitutional dimensions of what he was doing, and
at the end of it, you knew you had heard the master. He said
you were protecting your client’s rights and there is no greater
reward than saving someone from a night in jail. In his hands,         M. Beth Arnold, CLVS            Digital Video/Photo
the Bill of Rights was not abstract; he applied it every day for the
benefit of his clients.

He was also, in a word, entertaining. Years ago he would speak                  MBS Legal Images
at dinner events and you would laugh until all of your sides hurt.
He poked fun at those he came across who wore black robes, and
they laughed the hardest. They understood that he knew more
law than they ever could, but that he was also a gentleman and                          3 Alena Drive
a friend.
                                                                                   Latham, N.Y. 12110
Bill Gray left us this August, but I will never forget his kindness,                   518-229-5701
and I will smile at the thought of all the young lawyers he pulled               email: bethmbali@aol.com
aboard, including this one.
 Pro Bono Corner                                                   Friday, October 23, 2009
                                                                   Kick off Celebration –12-1:30pm -Court of Appeals
                                                                   Invited guests include the Hon. David Paterson, Hon. Andrew
                                                                   M. Cuomo, Hon. Jonathan Lippman, Hon. Andrew Baxter,
                             Siobhan Blank,                        United States Attorney for the Northern District of New
                             Pro Bono Coordinator                  York; Hon. Gerald Jennings, Mayor of Albany; Stephen P.
                                                                   Younger, President-Elect of the NYSBA and other dignitaries.
                                                                   Proclamations declaring October 25-31, 2009 as National
                                                                   Pro Bono Week will be unveiled. Contact: Gloria Herron
                                                                   Arthur, garthur@nysba.org. Sponsor: The New York State Bar
                                                                   Association.

PRO BONO BREAKFAST                                                 Reception - New York State Bar Association - Immediately
On September 8th, Third Judicial District Administrative Law       Following – One Elk Street, Albany, NY
Judge George B. Ceresia, Jr. hosted a breakfast meeting aimed      Immediately following the opening celebration NYSBA
at encouraging area firms to establish pro bono policies. Within   will host a reception. Representatives from Legal Services
the backdrop of the beautifully re-furbished “White” Courtroom     Programs will be present and information about training and
of the Albany County Courthouse, Judge Ceresia graciously          volunteer opportunities will be available. Contact: Gloria
spoke on the benefits of doing pro bono work and encouraged        Herron Arthur, garthur@nysba.org. Sponsor: The New York
participants to attend the upcoming training seminars on Estate    State Bar Association.
Planning and Bankruptcy. Anne Reynolds-Copps discussed
pro bono opportunities available at legal services providers in    Tuesday, October 27
the area. ACBA President David Miranda spoke about specific
pro bono projects at the ACBA and Dan Hurteau discussed            The Legal Aid Society of Northeastern New York will
Nixon Peabody’s firm-wide pro bono policy and emphasized           sponsor free clinics on Bankruptcy, to be held in Albany and
that any size firm can establish a pro bono culture. Many of the   Rensselaer County Courthouses, from 2-4:30 p.m. that day.
area’s managing partners attended the breakfast and there was      Guy Criscione, Jr., Scott Dillon, Christian Dribush, and
lively discussion on pro bono legal services. We would like to     Martin Mooney are the attorneys running the clinics. If you
extend our thanks to everyone who took part in and helped plan     know a client who may be interested in attending, they may
the meeting. It was really a great way to start the week!          register by contacting LASNNY at 462-6765.

WILLS TRAINING                                                     Wednesday, October 28
On September 17th the ACBA co-sponsored a Wills Training
with the Legal Aid Society of Northeastern New York, the New       The ACBA will hold free Estate Planning Clinics in Albany and
York State Bar Association and The Legal Project. More than 25     Rensselaer County Courthouses from 2-4:30 p.m. We would
attorneys were present and have agreed to take pro bono cases      like to extend out thanks to James Barnes, Tim Casserly, Paul
in exchange for the free training. We would like to extend our     Czech, and Laura Hoffman for running these clinics!! If you
sincere thanks to each of them and also to our esteemed speakers   know a client who may be interested in attending, they may
Anne-Reynolds Copps, Meg Reed and Dr. John Balint for              register by contacting the ACBA at 445-7691.
sharing their expertise. The evaluations were excellent and the
program was definitely a success. Carrie Smith has already         Thursday, October 29
taken a pro bono case! We would also like to thank the staff
at Legal Aid, The Legal Project and the New York State Bar         The Legal Project will hold a free Foreclosure Prevention
Association for their hard working in organizing this training.    Workshop in the Albany County Courthouse from 2-4:30 p.m.
                                                                   Pamela Robich-Wright will speak on foreclosure prevention
PRO BONO WEEK                                                      and Kristin Keefe from the Empire Justice Center will speak
National Pro Bono Week is taking place from October 26-31,         on homeowners rights when facing foreclosure. If you know a
2009 and planning has definitely accelerated for our part of the   client who may be interested in attending, they may register by
celebration!! Legal services providers in the Capital District     contacting The Legal Project at 435-1770.
have been working together to plan legal clinics and workshops
for that week. Below is a list of events that are currently        Also on October 29, there will be a free CLE training entitled
planned in the Capital Region. Please visit our website at         “Representing Prisoners in Section 1983 Claims (Part I)” from
www.albanycountybar.com for further updates on events in our       10 a.m. to noon. Presenters and panelists will include District
area (or check out http://www.probono.net/celebrateprobono/        Court Judges, Assistant U.S. Attorneys General, the Clerk of the
featuredevents/ for up to the minute listings nationwide).         Court, and private practitioners who are experienced in trying
                                                                   such cases. The training will take place in Albany at the Foley
Legal Clinic Sponsors: Albany County Bar Association, Legal        Courthouse. Immediately following the training, attorneys
Aid Society of Northeastern New York, New York State Bar           who have assisted the Court on a pro bono basis (representing
Association, The Legal Project, and the Third Judicial District    prisoners in section 1983 claims, volunteering as mediators and
Pro Bono Committee.                                                arbitrators for the Court’s mandatory ADR program, representing
                                                                   debtors in Bankruptcy Court, etc.) will be recognized during a
luncheon. Contact information and to register: Michael J. whose access to the Halls of Justice are denied merely because
Sciotti, Esq., msciotti@hancocklaw.com.                   of financial resources.

Throughout the week, service providers will have on display at         Nor is it difficult. If you lack a specialty in bankruptcy,
the Empire State Plaza storyboards detailing our pro bono heroes’      matrimonial practice, social services fair hearings or landlord
contributions to the community and to the legal profession. Our        tenant matters, there are a variety of free seminars and mentors
pro bono heroes are Michael Friedman and Dan Hurteau.                  available to help you competently provide legal services. If you
Other local heroes being honored are Peter Coffey, Ellie               want to know how to do it, give me a call.
DeCoursey, Kathryn Dell, Camille Siano Enders and Thomas
Welch. The Display will also feature storyboards highlighting          Throughout the years, I have been fortunate to represent hundreds
clients, the NYSBA President, and the Chief Administrative             of delightful people whose gratitude and appreciation for my
Law Judges Hon. George B. Ceresia, Jr. and Hon. Vito C.                services has given me as much satisfaction as any paying client.
Caruso. Informational materials about pro bono opportunities in        I have represented people who do not speak English or Spanish,
the Districts will be available and staff from local legal services    people who are blind or deaf or confined to a wheelchair. I make
programs will be on site each Thursday to answer questions and         house calls without a second thought. I have helped people
sign up volunteers.                                                    move on with their lives after thirty years of separation from a
                                                                       spouse, or kept people in a home who were facing foreclosure
                            WHY I DO PRO                               merely because of an inability to enforce support obligations.
                            BONO WORK,                                 Why deprive yourself of these pleasures? Besides, if none of
                                AND                                    this motivates you, consider this: Performing pro bono legal
                                                                       services will make you better looking. Just look what it has done
                         WHY YOU SHOULD TOO                            for me.
                                      Michael Friedman                                        Daniel J. Hurteau
                                                                                              PARTNER
It is hard to believe, but the right to practice law is a privilege.
Once you “pass the bar”, you have all kinds of magic powers                                   NIXON PEABODY LLP
including the ability to sue people on behalf of others, the ability                          677 Broadway, 10th Floor • Albany, NY
to compel appearances in court, and most importantly, the                                     12207
ability to bring about a civilized, reasoned resolution to people’s                           Phone: 518-427-2652 • 866-947-0687
differences. But this also comes with some responsibility.                                    E-mail: dhurteau@nixonpeabody.com
Magic powers should not be left solely to those who pay for                                   Website: www.nixonpeabody.com
your services, even if they result in a nice living.

For every paying client, or for every company who employs              Less than an hour into my first day at Nixon Peabody, a partner
you, or for every paycheck as a public service attorney, there         casually asked that I help him with a pro bono matter. Working
are hundreds if not thousands of people who are deprived of the        on that matter was such a positive experience, that pro bono has
ability to resolve disputes in a civilized manner or to have their     since been a big part of my practice. I handle pro bono matters
grievances addressed with the benefit of competent legal counsel.      not because it is expected, but because I find it the most rewarding
There but for the access to money and resources go every one of        way to use my training to give back to the community. What I
us. That is why I do pro bono work, and why you should too.            get back in satisfaction for helping others is tenfold what I give
For all the benefits and pleasures of being a lawyer in what the       and I constantly encourage others to get involved and take on pro
Rules of Professional Conduct call the “noble profession”, the         bono cases.
satisfaction doubles if not triples for helping those who would
otherwise be deprived of access to our system of resolution of
disputes merely because of lack of resources. And remember, it
is not pro bono if you work for a client who does not pay.

The new Rules of Professional Conduct continue the
“aspirational” goal of providing at least twenty hours of pro          Robert Rausch of Maynard, O’Connor, Smith, & Catalinotto,
bono legal services each year to poor persons. Are you kidding         is currently training to run a marathon with the Leukemia &
me? Most lawyers I know work in excess of 50 hours a week,             Lymphoma Society to raise funds for cancer research. The money
and even if you work only 48 weeks per year, that is less than         raised will fund research, advocacy, and patient-related services
1% of your time. I do not think that such matters should be            for all blood cancers. Please consider making a donation to
“aspirational”, they should be minimal. After all, I “aspire”          support this important cause. The marathon is taking place on
to play third base for the Toronto Blue Jays some day, but             October 26th in Dublin, Ireland. Donations may be made online
that is not going to happen. Rather, one should consider the           at: http://pages.teamintraining.org/uny/dublin09/rrausch. Thank
significant and continued reductions in public funding for             you for your support and generosity.
legal services for the poor since the Reagan Administration.
Just because it is not a priority for the government should not
mean it is not your priority. Just the opposite. The demand for
such legal services has not declined. Rather, as life becomes
more complex, more and more people fall into the net of those
                                                                        support and education of a child between a putative father and
 Family Law Update                                                      either a mother or person acting on a child’s behalf, which would
                                                                        bar any other child support remedies. The statute was originally
                                                                        designed to encourage putative fathers to settle paternity claims
                               By: Hon. Gerard E. Maney                 and reduce the need for legal proceedings, while at the same
                                                                        time offering the putative father certainty and a limitation on his
                                                                        future support obligation. The interests of the child and mother
                                                                        were protected by the need for judicial review. The legislature
                                                                        has determined that the section is no longer needed or justified
                                                                        because of technological advances made in blood genetic marker
                                                                        tests, statutory enactments requiring the use of such tests, and the
The 2009 New York State legislative session concluded on                evidentiary weight that courts are required to give their results.
July 16, 2009 with the passage of several bills affecting family
law attorneys. These measures – some of which amend 2008                Custody and Visitation Proceedings involving Members of the
enactments discussed in previous updates – are summarized               Military (L.2009, c.473, eff. November 16, 2009)
below.
                                                                        Chapter 576 of the Laws of 2008 amended Domestic Relations
Child Support Modernization Act (L.2009, c.343, eff. August 11,         Law and the Family Court Act with respect to custody and
2009)                                                                   visitation proceedings in supreme or family courts involving a
                                                                        parent in the military. Domestic Relations Law §240, Family
This measure raises the combined parental income “cap” in the           Court Act §651 and Domestic Relations Law §75-l have once
Family Court Act and Domestic Relations Law for child support           again been amended to provide that, unless the parties have
computation purposes from $80,000 to $130,000, effective                otherwise stipulated or agreed, an allegation that a parent has
January 31, 2010. Starting on January 31, 2012, that amount             returned from active service in the military automatically
will increase every two years based on the average annual               constitutes a substantial change in circumstances sufficient to
percentage changes in the consumer price index for urban                give the parent automatic standing to modify an order of custody
consumers published by the US Department of Labor Bureau of             or visitation, thereby allowing the court to address the issue of the
Labor Statistics.                                                       child’s best interests. It eliminates the requirement in the 2008
                                                                        statute to deem all orders issued that modify custody or visitation
The legislation also clarifies that attorneys representing social       because of the parent’s active service as “temporary.” The
services departments in child support cases on behalf of a              legislation also adds e-mail to the enumerated forms of electronic
parent on public assistance or parents who have requested child         contact between a military parent and his or her child that the
support services do not have an attorney-client relationship            court can consider and provide for in its order. The amendments
with those parents but are the legal representatives of the social      to the Domestic Relations Law and the Family Court Act are
services district. It also authorizes the local support collection      incorporated by reference into Military Law §253.
units to prosecute support violation proceedings and originate
proceedings to obtain child support orders on behalf of parents         Records Check in Custody and Visitation Cases (L.2009 , c.295,
on public assistance or parents who have requested child support        eff. August 11, 2009)
services.
                                                                        Chapter 595 of the Laws of 2008 amended Domestic Relations
Child support order as prerequisite for child care eligibility          Law §240 and Family Court Act §651 to require the supreme
(L.2009 , c.233, eff. July 23, 2009)                                    and family courts to perform certain record checks and to use the
                                                                        results of those record checks when making final or temporary
Social Services Law §410-w is amended to eliminate the need             orders affecting custody and visitation of children. The statutes
for applicants for child care subsidy assistance to petition for, or    were once again amended to make three specific changes: first,
obtain, a court order for child support as a condition of eligibility   the new legislation provides that – instead of requiring a record
for child care assistance, although they can be encouraged to do        check before issuing a new order whenever more than one month
so.                                                                     has elapsed since the previous custody or visitation order was
                                                                        issued – a check would now be required for any successive
Child Support - Repeal of Family Court Act § 516 (L.2009 , c.32,        temporary order where more than 90 days have elapsed since the
eff. May 19, 2009)                                                      last order was issued and again before the final order is issued.
                                                                        Second, it clarifies that family court warrants – not criminal court
Family Court Act § 516 is repealed. Section 516 permitted a             warrants – must be checked as part of the review. Finally, it
court to approve written agreements and compromises for the             provides that where a supreme or family court is unable to obtain
data from the required databases in a timely fashion (such as
because of a computer malfunction), but the court deems that the New Paperwork for Matrimonial Cases
child’s best interests require an immediate emergency custody
or visitation order, the court must obtain the full information There will be a new Summons of Motion for all Matrimonial Matters.
within 24 hours or the next day that the court is in session and
then notify counsel, self-represented parties and attorneys for Pursuant to Domestic Relations Law S 236 Part B, Section 2, as added
the children.                                                    by Chapter 72 of the Laws of 2009, both you and your spouse (the
                                                                    parties) are bond by the following AUTOMATIC ORDERS. Which
Evidence in Child Permanency Hearings (L.2009, c.334, eff. shall remain in full force and effect during the pendency of the action
October 10, 2009)                                          unless terminated, modified or amended by further order of the court or
                                                                    upon written agreement between the parties:
This measure extends the evidentiary rules applicable in Article
                                                                    (1) Neither party shall sell, transfer, encumber, conceal, assign, remove
10 proceedings (child protective) to Article 10-A proceedings       or in any way dispose of, without the consent of the other party
(permanency hearings for children placed out of their homes).       in writing, or by order of the court, any property (including, but not
It clarifies that hearsay evidence is admissible in permanency      limited to, real estate, personal property, cash accounts, stocks, mutual
hearings convened under Article 10-A of the Family Court Act.       funds, bank accounts, cars and boats) individually or jointly held by the
It also amends Family Court Act §1046 (c) to make it applicable     parties, except in the usual course of business, for customary and usual
to permanency and other proceedings under Article 10-A and to       household expenses or for reasonable attorney’s fees in connection with
permit material and relevant evidence to be admitted.               this action.

Amendments Affecting Domestic Violence Proceedings (L.2009, (2) Neither party shall transfer, encumber, assign, remove, withdraw or
c.476, eff. December 16, 2009)                              in any way dispose of any tax deferred funds, stocks or other assets held
                                                                in any individual retirement accounts, 401K accounts, profit sharing
                                                                plans, Keogh accounts, or any other pension or retirement account,
A. Domestic Violence Training for Attorney for the Child        and the parties shall further refrain from applying for or requesting the
Family Court Act §249-b was amended to require the Chief payment of retirement benefits or annuity payments of any kind, without
Administrator of the Courts to promulgate court rules requiring the consent of the other party in writing, or upon further order of the
that court-appointed attorneys for children receive training in court.
domestic violence, which training will include the effects of
domestic violence on children and the relationship between (3) Neither party shall incur unreasonable debts hereafter, including, but
domestic violence and custody, visitation and child support.  not limited to further borrowing against any credit line secured by the
                                                               family residence, further encumbrancing any assets, or unreasonably
B. Findings in Custody and Visitation Proceedings              using credit cards or cash advances against credit cards, except in the
Domestic Relations Law §240 (1) (a) was amended to require usual course of business or for customary or usual household expenses,
that, upon considering the effects of proven domestic violence or for reasonable attorney’s fees in connection with this action.
and abuse of a child in custody and visitation proceedings, the (4) Neither party shall cause the other party or the children of the
court must state on the record how its findings, as well as the marriage to be removed from any existing medical, hospital and dental
facts and circumstances, factored into its decision.            insurance coverage, and each party shall maintain the existing medical,
                                                                    hospital and dental insurance coverage in full force and effect.
C. Sex Offenses as Family Offenses
Family Court Act § 812, § 821, and Criminal Procedure Law           (5) Neither party shall change the beneficiaries of any existing life
§530.11 (1) were amended to add the following sex offenses to       insurance policies, and each party shall maintain the existing life
the enumerated family offenses for which there is concurrent        insurance, automobile insurance, homeowners and renters insurance
jurisdiction in criminal and family courts: sexual misconduct,      policies in full force and effect.
forcible touching, sexual abuse in the third degree and, where
the victim is incapable of consent for a reason other than being    NOTICE:
                                                                    Once a Judgment is signed, a party thereto may or may not be eligible to
under 17, sexual abuse in the 2nd degree.                           be covered under the other party’s health insurance plan, depending on
                                                                    the terms of the plan.
                HAPPINESS IS A WARM GUN: ACTIVIST JUDGES
                 CREATING NEW CONSTITUTIONAL RIGHTS.
                                                                      necessary to the security of a free State, the right of the people to
                                                                      keep and bear Arms, shall not be infringed.”4 This amendment
                                                                      was drafted by Madison after considering proposals submitted
                                                                      by various States following their ratifying conventions. Some
                                                                      of those proposals had specific language guaranteeing the
                                                                      possession of arms for defense of self, hearth and home. No
                                                                      such language was included in Madison’s proposal which is the
                                                                      one that eventually secured passage.

                                                                      Washington, D.C. had a law that prohibited all handgun ownership
                                                                      in one’s home. The constitutionality of that law came under
                                                                      review by the Supreme Court in 2008 in D.C. v. Heller. First, it
                                                                      should be admitted upfront by all that no one knows for certain
                W. DENNIS DUGGAN, F.C.J.                              what the Second Amendment means because there is no record
                     OCTOBER, 2009                                    by Madison or anyone else showing what they thought it meant
                                                                      when it was proposed. You will recall that to secure passage of
Americans love guns. I mean, we absolutely love guns. We’re the       the new Constitution, the people who claimed that there was no
most gun totin’ country in the world with, maybe, the exception       need for a Bill of Rights promised that a Bill of Rights would be
of the Taliban, who aren’t actually a country. In the rest of the     the first order of business of the new Congress.
civilized world, owning a handgun is almost an impossibility. In
America, it’s a Constitutional right. Of course, we are also the      One of the basic rules of statutory interpretation is that if a
most violent country in the Western World. Our murder rate is         law was intended to cover a certain situation, the legislature
two and three times higher than our closest allies. Did I mention     would have plainly said so and if it doesn’t say so, it’s not
that the United States is the World’s leading arms merchant---by      covered. (See McKinney’s, Statutes § 74, “The failure of the
an astronomical margin? In 2008, America accounted for 68% of         legislature to include a matter within the scope of an act may be
world arms sales. Italy (yes Italy) was second with 1/10th of the     construed as an indication that its exclusion was intended.”).
sales of America. Russia was a close third.                           In the case of the Second Amendment, if the possession of
                                                                      guns for personal use was meant to be protected, one would
There are some very compelling correlations that make you             have expected the Amendment to say something like “the right
wonder if handgun ownership is a good bargain for America.            to keep and bear arms for defense of self and State shall not
31,000 and 70,000 gun deaths and injuries each year.1 You are         be infringed.” Because no such language is contained in the
probably familiar with the studies showing the much higher            Second amendment, the dissent in Heller accuses the very
probability that a handgun in a home will be used first to harm       conservative majority (Scalia, Roberts, Kennedy, Thomas and
someone in that home before it will be used to defend the home        Alito.) of (please sit down at this point if you are standing)…..
against an intruder. I don’t know much about guns but it always       creating constitutional rights!
seemed to me that if I wanted to defend my home against an
intruder, a double barrel shotgun would be my first choice.2          This is one of those decisions where you read the majority
                                                                      and say that sounds right and then you read the dissent and
Gun ownership in America is highest in the South where violent        say that sounds right too. Of course, the vote was 5-4, which
crimes are also the highest. For example, the top five states for     begs the question about how anyone can have any confidence
gun death rates are Louisiana, Alabama, Alaska, Mississippi, and      in the law when its meaning arouses such disagreement among
Nevada. They average three times the rate of gun ownership            the supposed best and brightest. Wouldn’t our legal system be
and three times the death rates compared with the bottom five,        better off and more respected if we required, say, a 6-3 or 7-2
which are New York, Connecticut, Rhode Island, Massachusetts,         vote to overturn an act of Congress? Under current practice,
and Hawaii. The South is also the area where the death penalty        one judge’s vote has the effect of overruling the votes of 100
is most prevalent and most used. Church attendance is also            Senators, 435 members of Congress and the President of the
highest in the South. Take Houston, for example. Houston is           United States---combined.
one of America’s most violent cities. It’s ranked 9th for cities
over 500,000. New York City, by comparison, is the 5th safest.        Scalia, in over fifty pages, goes through the history of militias
Houston’s murder rate is almost three times higher than New           and gun control in Colonial America. Much space is taken up
York City’s. Houston has two congregations that have weekly           with explaining how completely wrong Justice Stevens is in his
church attendance of over 43,000 and 23,000 respectively. The         dissenting opinion. According to Scalia, Stevens misread every
South also has the highest divorce rate in America and the worst      historical source and case that he cited. On top of the historical
indicators for child welfare, such as teen pregnancy rates, infant    battle, there is the linguistic battle with this grammatically
mortality and number of children without health insurance. In         challenged Amendment.
short, guns, crime, the death penalty, divorce, child well being--
--it pretty much breaks down on a red state-blue state basis. Did     Scalia makes a convincing case that the founders had a fear of
I mention that the top nine incarcerating States are red and six of   standing armies and of the experience under the Stuart Kings,
those nine are in the South? What does all this mean? I don’t         who disarmed civilians so there would be no opposition to the
know. But where there’s controversy, the Supreme Court can’t          palace guard. He also shows that the militia meant all able bodied
be far behind.3                                                       men who could be summoned by the State for defense. To do
                                                                      that, members of the militia would obviously need weapons.
The Second Amendment states: A well regulated Militia, being          In those days, that would be a long rifle. Pistols would have
been quite expensive in Colonial days and almost useless from a         Scalia’s answer to many of his critics was always, if you don’t
military point of view---then and now.                                  like something, “pass a law.” However, when the Supreme
                                                                        Court gets involved, they take away government’s ability to pass
The majority and dissent part ways over what the Amendment              a law. Heller stands only for the proposition that the Federal
protects. Is it “the right of the people to keep and bear arms”         government cannot completely prohibit the possession of a hand
for militia purposes only or does it include possession in the          gun in a person’s home---in Federally controlled territory.
home for self defense? Because each side is convincing on their
points, neither side ends up being convincing. The answer, as           But what can government prohibit? No one knows---because the
the recently departed Mary Travers would sing, would then be            Court gave us no interpretive standards. To prohibit the home
found, “blowin’ in the wind.”                                           possession of an Uzi, does government need just a rational basis,
                                                                        a compelling state interest or something in between? Heller
Despite Justice Scalia’s erudition, it’s difficult to conclude that     doesn’t tell us. On the other hand, the dissent’s argument curves
the Amendment was meant to protect anything other than the              toward the absurd if the Second Amendment was meant to protect
possession of arms so that citizens could form a militia. The           the possession of weapons only for use in the militia. A militia
reason is this: at the end of the 1700’s, no one would have             these days needs M-16’s, mortars, RPG’s, cannons and shoulder
thought that the government could restrict a person’s possession        held missiles, if it is to provide us with any defense. But, who
in their home of a gun for self-defense or for hunting. Back            would claim that a person could possess such weapons in their
then, personal gun possession was not a social problem. No              homes? In fairness, no justice actually makes that argument.
one would have thought that they needed protection from
governmental infringement of this right. Neither the Federal            In the end, the Second Amendment does not hold the answer
government nor any State legislature was proposing to prohibit          to the question of permissible governmental gun control. The
the personal possession of hunting rifles. In fact, no one would        legislatures, speaking for the people, hold the answer. That’s why
have even considered gun possession a right---it was a necessity,       in New York you need a judge’s permission to carry a concealed
like a farmer possessing a horse or a plow. A gun in Colonial           pistol and in New Hampshire you can wear an exposed sidearm
America was a tool of life. What they did need protection from          to an Obama rally. Don’t forget that those buttoned up New
was government establishing standing armies and eliminating             Englanders from the granite state are the “Live Free or Die”
the citizen militia from forming to defend against tyrannical           folks.5
governments who might use that standing army against them.
Indeed, George the III tried disarming some of the American
rabble. The Second Amendment protected the right of the States          (Endnotes)
to form militias with self-armed men.                                   1
                                                                          Gun ownership defenders can also cite to their own studies which show, for example,
                                                                        that stricter gun laws result in more murders; that reducing guns does not reduce
                                                                        crime, suicides or gun accidents involving children; and that each year about 500,000
We have long gotten used to standing armies and the days when           burglaries are prevented by homeowners armed with guns. The problem with many of
a man would grab his musket and form up on the village green            these studies is that they start out trying to prove the conclusion they reach.
have long since passed. The battle now is solely over the personal
right to possess a gun----mostly the right to possess a handgun.
                                                                        2
                                                                          Justice Scalia would probably disagree with this. In his majority opinion in the Heller
                                                                        gun case, he noted that handguns are first choice of Americans for home defense. He
It is on this point, which is the central point of the decision, that   says that a handgun is easier to store in an area readily accessible in an emergency;
Scalia’s argument is weakest. It is weakest because he tries to         that it cannot be easily redirected or wrestled away by an attacker; it’s easier to use for
get the Second Amendment to protect something that no one in            those without the upper-body strength to lift or aim a long gun; and, it can be pointed at
1790 would have thought needed protecting, from, at least, the          a burglar with one hand while the other hand dials the police. Scalia, as we know, has
Federal government.                                                     some experience with guns from his time spent hunting with the former Vice President.
                                                                        Being a very casual acquaintance of Justice Scalia, having met him on four occasions,
                                                                        I can personally attest to his knowledge of guns. Several years ago, I was walking
Scalia acknowledges that it has always been permissible for             down Fifth Avenue in New York City and bumped into him and his wife as they were
government to restrict certain types of weapons and the manner          unloading his SUV to check into the Stanhope, across the street from the Metropolitan
of their transportation and use. He also has no problem with, for       Museum. In the course of unloading his luggage, he pulled out a long gun case and his
                                                                        wife asked him in a perturbed voice why he had to bring that “thing.” I pointed out to
example, restricting the possession of sawed-off shotguns or the        the Justice that the crime rate in New York City was quite low, especially on upper Fifth
possession of guns by felons, the mentally ill or around schools        Avenue. However, he had another reason for having the gun. That night he planned on
and government buildings. He also acknowledges that there is no         joining Judge Bellacosa at the opera and the next day they were scheduled to do some
question that the Second Amendment only restricts the Federal           skeet shooting out on Long Island.
Government. The States, where most of the gun regulating takes          3
                                                                          Of the top ten States in terms of divorce rates, teenage birthrates and subscriptions to
place, are free to do as they please under their police power. On       online pornographic sites, 24 are red States and 6 are blue States, just in case you get
this subject, the States have been all over the place.                  in a debate over where family values voters live. (See, The Prurient Trap, Charles M.
                                                                        Blow, New York Times, June 27, 2009, p. A19).
Only eight States now do not have some constitutional provision         4
                                                                          New York’s Constitution has no “right to bear arms” corollary. If you ever wondered
guaranteeing the right to possess a gun for self-defense and            about why some words in the Constitution or in other writings produced during the
all fifty states regulate gun ownership to some degree. Of the          Colonial time are capitalized, the answer comes from the influence of the German
thirteen original States, five have no constitutional provision         language and German printers. In German, even today, all nouns are capitalized. You
guaranteeing the right to possess arms for self-defense (New            may also have noticed in Colonial era documents the use of the lower case “f” in place
                                                                        of an “s.” So “has” appears as “haf.” This was also due to the influence of German
York, Massachusetts, New Jersey, Maryland and Virginia). Only           printers who used an “f” instead of an “s” because it took up less space.
Pennsylvania guaranteed the right to gun possession for self-
defense in its original constitution. For the others, the guarantee     5
                                                                          In NRA v. City of Chicago, decided June 2, 2009, the 7th Circuit court of Appeals
came much later, some by constitutional amendment, some by              declined to selectively incorporate the Second Amendment into the 14th Amendment,
statute and some by court decision: New Hampshire, 1982,                which would have made it applicable to the States.
Rhode Island, 2004; Connecticut, 1818; Delaware, 1987, North
Carolina 1921; South Carolina, 1881; and Georgia, 1877.

The Supreme Court has now entered the gun control thicket just
as they entered into the abortion regulation thicket, which Scalia
so presciently predicted many years and many decisions ago.
                                                                  liquidated damages shall be due and owing unless the employer
 Labor and Employment Practice                                    proves a good faith basis to believe that its underpayment was
                                                                  in compliance with the law.
                                                                  Liquidated damages are available in either a civil action
                                                                  commenced by an employee or an administrative action
                                By Glen P. Doherty, Esq.          commenced by the NYSDOL. Not new under the amendments,
                                McNamee, Lochner, Titus           but certainly worth mentioning, is that an employee who
                                    & Williams, P.C.              prevails against an employer in a private civil action is entitled
                                                                  to costs and reasonable attorney’s fees.
                                                                  Action Plan
A slow September at the Appellate Division presents the perfect
opportunity to update our members with respect to certain         Given the rise of NYSDOL enforcement activity, coupled with
upcoming changes to New York’s Labor Law.                         the growing number of wage and hour lawsuits, law firms are
                                                                  well advised to take immediate action to ensure compliance
On August 26, 2009, Governor Paterson signed into law an act      with all wage and hour laws and regulations. Affirmative
amending various provisions of the New York Labor Law – an act    activities such as self-audits, review of job descriptions, review
that expands certain worker protections and increases remedies    of job duties, and review of policy manuals can prove useful
and penalties against employers who violate New York’s wage       in avoiding or defending administrative proceedings and/or
laws. The new law goes into effect on November 24, 2009.          lawsuits.
                                                                  1            Prior to the new legislation, protected activities only included: the mak-
Expansion of Protected Activities, Covered Individuals,           ing of a complaint with the NYSDOL; causing a wage proceeding or investigation; or
Penalties and Damages                                             testifying in a wage investigation.


The new law expands the list of activities that are protected CLARENCE DARROW VIGNETTES
against employer retaliation. These new activities include: the
provision of any information to the New York State Department “Just think of the tragedy of teaching children not to doubt.”
of Labor (NYSDOL); an employer’s receipt of an adverse Clarence Darrow
determination from the NYSDOL; or any exercise of rights
under certain provisions of the Labor Law.1
                                                                                       You as the Central Persuasion Equation
The new law also extends liability for wage-related retaliation                                        Part 3
                                                                                                   By: Ray Kelly
to include officers and agents of limited liability companies
and partnerships. Prior to the amendment, the definition of                                      Impactful Communication:
“employer” only included officers and agents of a corporation.                                     Persuasive Storytelling
Finally, the new law increases potential penalties and remedies   Organization of Final Argument
against employers. Specifically, the minimum civil penalty for    For your argument to be persuasive it must be a unified whole
retaliation is increased from $200 to $1,500, and the maximum     that has coherence and emphasis. The argument gets organized
civil penalty is increased from $2,000 to $10,000. The new law    according to the issues the jury must decide. It is a trap to talk
also authorizes the NYSDOL to order the employer to pay lost      about topics as they occur to you. Randomness is death to impact.
compensation to the employee subject to retaliation.              An essential ingredient in organizing the closing is your rapport
                                                                  with the jury. You must sense how and where in the courtroom
NYSDOL Status as a Litigant and Liquidated Damages                to present different parts of your argument.
The new law clarifies that the NYSDOL may commence an
administrative action against an employer to collect wage Chapter Method
underpayments and liquidated damages.                           Each point in the final argument should be developed as a
                                                                block of information. A block contains one point. The point
With respect to liquidated damages, the new law shifts the being made is stated to introduce the block. It is developed and
burden of proof to the employer in order to avoid an award explained and then it’s restated in conclusion. By arranging the
                                                                blocks according to their importance to your theory, you progress
of liquidated damages. Under the current law, an employer is
                                                                through the points and build the presentation. Each point gets
liable for liquidated damages in the amount of 25% of the total developed fully and separately. Transitions between the blocks
underpayment in instances where the employer’s failure to pay need to be carefully worked out. Each block of information
wages is proven to be “willful.” Under the new law, however, announces, develops and reinforces the point being made. The
point being driven home to the jury can be seriously diluted             words are more important than the length of the argument. Simple
if lesser points that tangentially overlap divert from the main          words spoken with great conviction is the heart of eloquence.
point. While repetition is a big part of retention, don’t risk being     5. Use Visual Aids
redundant or boring as you drone on about the same point. Once         Visual aids enhance final argument. The idea is that we want
a point is completely presented, no need exists to double back to  our perception of the facts to dominate the jurors’ thinking while
reintroduce it.                                                    they deliberate. That means you have to present your point
                                                                   of view with impact. People retain what they see and hear far
The discrete blocks of information have their own emotional longer than what they only hear. Visual reinforcement of a verbal
intensity and their own place in the courtroom. Utilize courtroom message maximizes persuasion potential.
geography and the concept of psychological anchoring (i.e., 6. Give them a Course of Action
argue from the place in the courtroom where the critical               Someone once said that people often don’t get what they want
testimony occurred). As you move around the room developing because they don’t know how to ask. Find a way to make the trier
each point from a different place, you can shift the emotional and of fact want to find for your client. It is one thing to tell them that
vocal intensity of each point. The constant shifts make the entire your client deserves the verdict; it is far more persuasive to show
presentation more dynamic and give it greater variety.             them that they have already been given the tools to find in your
                                                                   favor.
Do’s and Don’ts                                                          7. Don’t be Predictable
Final argument is a unique opportunity to make an emotional                  Creating a file of clever arguments and analogies is a good idea
appeal that answers practical considerations. This is the last           but the file can never become the only source of the argument.
opportunity to answer any questions in the minds of the jurors.          You cannot argue the same way each time. That will put you in
Although it is improper for lawyers to advise the jury of the            a rut. A rut is a grave with the ends kicked out. If inadvertence
effect of their verdict, if the presentation at trial is clear, jurors   is the killer of good causes, predictability is its major ally. When
are well aware of the effect their verdict will have. Give the fact      everyone in the courthouse knows how you are going to argue a
finder all the emotional as well as the common sense reasons to          certain type of case, you are in a rut and it is time to think about
support your theory of the case.                                         a new approach.
1. It’s Not the Time to Win It                                           8 Avoid Cheap Shots
    Final argument is not the time to win, it is the time to tell the    (a) Resist opinionated argument. Eliminate adverbs and
jury how you’ve already won. Your case is presented throughout adjectives which involve your personal opinion or evaluation.
the trial. If you wait to be persuasive until final argument, it is Simply let the facts tell the story.
probably too late.                                                       (b) Don’t go outside the record. Improper argument invites
2. Limit the Number of Issues                                         improper argument in response. A negative spiral can ensue.
    To be persuasive the final argument should contain no more           (c) Don’t comment on opposing counsel. The jury will see
than two or three issues that you can argue powerfully. These through it and wonder why you are resorting to “talking down”
points are the focal point of your argument. Jury argument is the your opponent. Conversely, praising opposing counsel as
time to combine purpose (the goal of the persuasion), passion “learned” or “esteemed” is seen as the insincere puffery it is.
(the emotional themes) and perception (the insight that pulls it         (d) Don’t appeal overtly to the jurors’ prejudice. They will
all together). Emotion and intellect combining to move fellow take offense and think you are condescending.
human beings to action. Too many lawyers focus on the logic              (e) Don’t try to communicate to them what verdict is needed.
only, forget about the passion, and wonder why they cannot lead Your commitment to cause will convey the appropriate verdict.
the jury to a perception of the facts consistent with the desired        (f) Don’t make false statements about the facts in the case and
verdict.                                                              don’t try to argue all of the evidence that was offered only for a
3. Don’t Read                                                         limited purpose. Aside from courting a reversal, the jury will
    Never read a final argument. Like Sir Winston Churchill, ultimately hold these tactics against you and your client.
prepare in advance to be spontaneous. Your commitment is A Final Thought on Final Argument
the barometer the jurors will use to gauge your message. If              Throughout the trial, you are the central persuasion equation.
you are not committed to your cause you will never convince Choose the word pictures you paint carefully. The word pictures
anyone to follow you. Reading allows for detachment from the you utilize in summation grinds the lense through with the jurors
material and usually bores the listener. Your command of the will process the evidence. Your summation makes the jurors
facts persuades the jury that you believe in your client’s cause. virtual witnesses to the most critical facts. Brainstorm your
There is congruence of message and messenger. To understand visualization language, group your facts into vivid word pictures
the level of commitment required imagine a plate of bacon and and always utilize the power of story. Imagination is more
eggs and think: “The pig was committed; the chicken was merely important than logic, rules or legalese. Jurors think in pictures.
involved.”                                                            Jurors are scripted to story. Your final argument is the ultimate
4. Don’t Try for Eloquence                                            persuasion pearl in the trial long endeavor of helping the jury to
    Don’t bother trying to be eloquent and don’t worry about think along your lines.
length. Final argument can be quite short if the most dramatic
point is persuasively presented. The power and imagery of your
  Continuing Legal Education                                                            Speakers:             Patricia Brooks, Licensed Surveyor
The Albany County Bar Association has been certified by the NYS Continuing Legal
                                                                                                              NYS Association of Professional Land
Education Board as an Accredited Provider of CLE in the State of New York and
                                                                                                              Surveyors, Inc.
has also been given approval to provide non-traditional CLE format courses. For a
                                                                                                              Additional Speakers TBA
list of our CD’s, or additions to our programs, please visit our website: http://www.
albanycountybar.com. Hardship Scholarships available, contact the ACBA’s office
                                                                                        Price:                ACBA Member $75; Non-Member $90;
                                                                                                               Non-Lawyer $50
SPECIAL SERIES:
                                                                                        CLE Credit:           2 Hours of Professional Practice
NEW THIS YEAR – ACBA will be holding a series of programs that focus on
providing new attorneys with the basic skills needed while providing the more
                                                                                        Social Security Disability Update
experienced attorneys with the opportunity to learn a new skill or new area of law.
                                                                                        (Non Transitional and not acceptable for newly admitted attorneys)
Each of these programs are 1 hour in length and will provide you with the basic
concepts in each area of law. More programs will be coming in the Spring.
                                                                                        Oct. 28               Dale Miller
                                                                                                              30 S. Pearl Street at Omni Plaza, Albany
Please indicate program desired and choice of lunch where applicable: Please make
                                                                                                              12:15 PM Registration
checks payable to Albany County Bar Association and remit to The Stedman House,
                                                                                                              12:30 – 1:30 PM Seminar
1 Lodge Street, 2nd Floor Albany, NY 12207. We also accept Credit Cards. Please
contact 445-7691 or acba@albanycountybar.com for additional information.
                                                                                        Speaker:              Ira Mendleson, III, Esq.
                                                                                                              Buckley, Mendleson, Criscione & Quinn, P.C.
Victory Café                                                                            This program will provide an update on recent developments in social security disability.
10 Sheridan Ave., Albany, NY                                                            Specifically the program will cover the various types of social requirements, the
4:45 PM Registration                                                                    requirements for each, how to file a claim, time lines. In addition, the program will
5:00 – 6:00 PM Seminar/Lite Fare                                                        provide practical tips in representing claimants and interactions with other programs
                                                                                        such as, worker’s compensation, short term disability, and unemployment.
Price:               ACBA Member Admitted less than 5 years: $20
                     ACBA Member Admitted 5 years or more: $30                          Price:                ACBA Member $50; Non-Member $65;
                     Non-Member: $40                                                                          Non-Lawyer $30
                                                                                                              Parking Included in the Price of Attendance!
CLE Credit:       1 Hour of Professional Practice (each)
(Appropriate for both newly admitted and experienced attorneys)                         Menu                  Herb Roasted Breast of Chicken
                                                                                        Choice:               with Meyer Lemon Shallot Sauce OR
Oct. 29              What to Do When Someone Needs Advice                                                     Rigatoni with Tomato Sambuca Sauce, Basil, Paint
                     or Calls You About a Criminal Case and                                                   and Articoke Portobello and Roasted Pepper Ragout
                     You Don’t Practice Criminal Law?
                     Lee Kindlon, Esq.,                                                 CLE Credit:           1 Hour of Professional Practice
                     Kindlon, Shanks & Associates

Nov. 5               Handling a Traffic Ticket in Local Courts                          Save the Date
                     Hon. Andrew C. Sommers,                                            Best Practices From the Bench
                     Sommers & Sommers& Colonie Town Justice                            (In conjunction with the Italian American and Bar Association)
Jan. 7               Real Estate: Everything you Need to Know
                     Contracts & Closings in an Hour                                    Nov. 12               Italian American Community Center
                     Murray Carr, Esq.                                                                        257 Washington Avenue Extension
                                                                                                              11:45 AM Registration
                                                                                                              12:00 – 4:00 Seminar and Luncheon Buffet
Attorneys Guide to Surveying 101
(Appropriate for both newly admitted and experienced attorneys)                         Introduction          Hon. Victoria A. Graffeo,
                                                                                                              Court of Appeals
Oct. 23              Offices of Clough Harbour & Associates                             Moderator:            Hon. Anthony V. Cardona,
                     111 Winners Circle, Albany                                                               Presiding Justice,
                     8:45 AM Registration                                                                     Appellate Div. 3rd Dept.
                     9:00 – 11:00 AM Seminar/Breakfast Buffet
                                                                                                              Additional Judges TBA
This program is designed to educate attorneys involved in real estate transactions
who want to gain a better knowledge of what surveying is, what surveyors                Additional details and registration information will be in our next
do, and how their clients can benefit from having an updated survey. This               newsletter!
program will review the NYS Education Law pertaining to real property, and
explain how to read and interpret the various components of a survey map.
            Albany County Bar Association
                                         presents

                          Fall Wine Tasting
                               October 16, 2009
                             Angelo’s 677 Prime
                                677 Broadway
                              Albany, NY 12207
                            Time: 5:30 - 7:30 p.m.
                      Price: $35.00 for ACBA Members
                              $45.00 for Guests

             Wine Tasting provided by SMD Selections, including:
              Canard Vineyard Cabernet Sauvignon Napa Valley, California
                        Malbec Traditional Mendoza, Argentina
                         Primitivo Salento IGT Lucero, Italy
                      Falanghina “Le Fossette” IGT Puglia, Italy

                            … paired with Angelo’s finest appetizers.


              A Silent Auction to Benefit Albany County Bar Foundation
                            ************************************
            Please make my/our reservation to attend the Fall Wine Tasting event on
                                 October 16th by October 9th.

Name (s):


E-Mail:


                           Please make your check payable to the
                                Albany County Bar Association
                   and remit to 1 Lodge Street, 2nd Floor, Albany, NY 12207
                       or call 445-7691 with your credit card number.
                                                                                                              PRSRT STD
                 ALBANY COUNTY BAR ASSOCIATION                                                               U.S. POSTAGE
                 The Stedman House                                                                                PAID
                 1 Lodge Street, 2nd Floor                                                                    ALBANY, N.Y.
                 Albany, NY 12207                                                                            PERMIT #749

 20
  20




Calendar of Events                                                Change of Scene and Bench & Bar in the News: Provided
                                                                  at no cost to our members. All notices must be submitted
Oct. 29,                                                          in writing.
Nov. 5, Jan. 7   CLE Special Series, Victory Café, 4:45 AM
Oct. 13          ACBA Board & Stated Meeting, 8:00 AM
Oct. 16          ACBA Fall Wine Tasting w/ Fundraiser,
                                                                  Deadline: The third Friday of the prior month is a good
                 677 Prime                                        rule of thumb. The deadline for the November issue is
Oct. 23          CLE, Office of Clough Harbour &                  October 16th. Mail ad copy and payment to Albany County
                 Assoc., 8:45 AM                                  Bar Association, The Stedman House, 1 Lodge Street, 2nd
Oct. 26 - 30     Pro Bono Week!!!                                 Floor, Albany, NY 12207.
Oct. 28          CLE, Dale Miller, 12:15 PM
Nov. 17          CLE, Dale Miller, 11:45 AM                       Rates and Deadlines
Nov. 19          CLE, Dale Miller, 12:15 PM
Dec. 3           CLE, Marriott, 12:15 PM                          Albany County Bar Association Rates: Member: $50 in our
                                                                  classified section (approximately 30-40 words) additional
Advertising Policy The ACBA Newsletter                            fees may be incurred as the number of words increase. Non-
                                                                  member: $100 in our classified section (approximately 30-
   Advertising appearing in the ACBA Newsletter                   40 words) additional fees may be incurred as the number
does not presume endorsement of products and                      of words increase. There is also an additional $10 charge
services by the Albany County Bar Association.                    for Blind Ads. Seminars announced: $60 (approx. 30-40
                                                                  words).
Classified Advertising Policy
Classified Advertising Policy: All ads must be prepaid and        The rates for all photo ready ads are:
in writing. We also hold the right to edit all ads. For display   Full page (8.5” x 11”) = $500;
advertising rates and information, please call (518) 445-         1/2 page (8.5” x 5”) = $350;
7691. All ads must contain wording “Paid Advertising” at          1/4 page (3 1/2 “ x 5”) = $275;
the top. It shall be the policy of the Albany County Bar          Business card size (3 1/2 “ x 2 1/2 “) = $175.
Association that no advertisement should indicate any
preference, limitation, specification, or discrimination based    For more information contact the ACBA’s office.
on color, handicap, religion, sex, national origin, or age.

				
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