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Kramer & Pollack, LLP THE ADVOCATE
THE BRONX COUNTY BAR ASSOCIATION
Personal Injury Attorneys FALL 2008 Serving The Bronx County Bar & Bench
WWW.212ANSWERS.COM
BOARD OF DIRECTORS THE PRESIDENT’S MESSAGE
Trial Counsel To The Profession 2008 - 2011 Dear Colleagues and Friends:
•Case referrals accepted at all stages of litigation OFFICERS As I begin the 2008-2009 year as your President,
•Referral fees always appropriately honored Lucille M. Barbato I am reminded of the words of the poet, T.S. Eliot,
•Experienced, dedicated and respected President that “what we call the beginning is often the end.
And to make an end is to make a beginning. The
•References provided upon request Kevin J. Quaranta end is where we start from.”
•We handle cases in all 5 boroughs and Long Island Chairperson of the Board The Bronx County Bar Association is celebrating
Carlos M. Calderon its 106th Anniversary and I will be inducted as the
First Vice President 89th President on September 24, 2008. I am
Thinking of Retiring? Christopher M. DiLorenzo honored to be your President. I know that with this
extraordinary privilege comes extreme
•We will buy your existing practice Second Vice President responsibility, and I promise you that I am fully
•Monthly status updates provided on all cases Robert H. Wolff committed to not only continuing the great work of
•Disbursements paid up front Secretary our Association, but to also fostering our growth. I
•Full time M.D. on staff Michael A. Marinaccio understand that I am part of a team, one that includes
all of you. The baton is being passed to me now. As
•Peace of mind Treasurer your teammate and team leader, I am ready to accept
New York City Office Long Island Office Roberto Laracuente it and carry it strongly. Having watched the 2008 Summer Olympics and seen the
143 Willis Avenue
15 Maiden Lane
Suite 2
Financial Secretary greatest athletes in the world recently compete, I am inspired. I will begin this year
Suite 1400 from where others ended, and, as I proceed forward, I am filled with tremendous team
New York, NY 10038 Mineola, NY 11501 DIRECTORS spirit for our Association to “go for the gold.”
(212) 267-9377 (516) 742-8897 2006-2009 As I begin my first lap, I salute those members who, at the Installation Dinner, will
Anna Cabrera celebrate their 50th year of admission to the bar, including Harold Weisman and Roy
Albert W. Cornachio, 3rd Josephson, who have so generously volunteered much of their time over many years
Peter T. Ridge for our benefit. Also, on this night, for the first time in the Bronx Bar’s history, three
members will be honored for their 60th year of being admitted, two of whom are Past
Lester C. Rodriques Presidents - Emmanuel and Muriel Kessler. Indeed, I would be remiss if I did not give
Kelly M. Stabile special recognition and thanks to Muriel Kessler, who helped to pave the way for me
2007-2010 and other women to become lawyers, business owners and bar association leaders.
With excitement and energy, I proudly accept this position from former President,
BRONX COUNTY BAR ASSOCIATION Steven J. Baker Kevin Quaranta. As I take off from where he ended, I congratulate Kevin on all his
851 GRAND CONCOURSE David W. Barnhard accomplishments and extend my gratitude for his continual support as Chairperson
BRONX, NY 10451 William K. Peterman, 3rd of the Board. I also promise to continue his good work. Kevin leaves the Bronx Bar, as
www.bronxbar.com Harold Weisman a part of his legacy, the Leadership Council, formed to address our Association’s most
difficult challenges, network with other bar leaders, interact with the Judiciary, investigate
2008-2011 problems caused by members being located in four separate courthouses, and better
Daniel Chavez serve our membership, now and in the future. This committee will continue this year
Richard G. O’Reilly with Christopher DiLorenzo and Kevin Quaranta as co-chairs and Justice Denis Boyle
Corey A. Sokoler as consultant.
I am also proud to be continuing with this important publication, which was given life
Sergio Villaverde two years ago by then President and now Managing Editor, Joyce Hartsfield. With the
F. Frank Vozza very able assistance of our editorial staff, as well as those of you who contribute, we
will continue to provide significant information and developments in all areas of the
law. This Summer, we were successful in securing advertising support, and we must
Table of Contents Page give thanks to all of the advertisers for helping to keep The Advocate alive. We hope to
obtain more advertising and welcome all of you to submit articles and other important
President’s Message ........................... 1 information for future publication.
Words of Wisdom ............................... 2 I am also fortunate to be working with many other loyal and dedicated champions of
Obituary ................................................. 3 the Bronx County Bar. Past President, Hugh Campbell, Chair of the evening CLE
Sustaining and New Members ............ 4 Committee, has been organizing a four-part, 12 credit Trial Practice series, while
Persuading The Judge ....................... 5 Robert Shaw, Past President and Chair of the Civil Courts Committee, together with
9/11 ......................................................... 7 Corey Sokoler and Steve Baker, as co-chairs of the lunchtime CLE series, have planned
CLE Schedule ........................................ 8 informative one credit lunch hour courses for the Fall in the areas of criminal and civil
CollectingThe Most Important Bill .... 9 law. The Matrimonial Committee, co-chaired by Sergio Villaverde and Veronica Mandel,
meets monthly and, among other work, is planning an exciting seminar in Las Vegas,
Navigating The NYC Civil Court ...... 10
Nevada. The Criminal Courts Committee, co-chaired by Marvin Ray Raskin and
Meet The Member .............................. 14
THE ADVOCATE/Bronx County Bar Association Fall 2008 Christopher DiLorenzo, also meets monthly and
THE ADVOCATE/Bronx County Bar Association Fall 2008 is presently conducting another survey
16
of the Criminal Court judges. The Judiciary Committee, now reason, I hope to include mentoring as an important part of the
chaired by Robert Wolff, has been active this Summer screening Bronx Bar’s activities, and I will seek your support in making
Bronx judges and will continue to be busy through the year. this a successful endeavor. I know at least one person who
You may learn more about our committees, CLE courses and has given many hours to mentoring others, and that is one of
other activities by visiting our website at www.bronxbar.com. the many reasons why we are honoring Bronx Supreme Court
Speaking of our website, it has been updated. We also have Justice Sallie Manzanet-Daniels with our President’s Award at Expert Economic Analysis Since 1979
the capacity to send bulk e-mails to all of our members who the Installation Dinner.
have an e-mail address and provided it to us. Please keep a I respect our history and honor our future. With both in mind Is your case missing a
lookout for our e-mail messages and take a peek at our website
from time to time to learn more about who we are, what we are
and baton in hand, I sprint forward, hoping to keep igniting the
spark that gave birth to the Bronx Bar 106 years ago. Our motto
credible damages figure?
I Our professional economists, statisticians and analysts all provide
doing, when and where our CLE courses, committee meetings, is that we are “the friendly bar association”, and it is that team the attention to detail that you expect.
dinners and functions are being conducted, and understand spirit I will strive to sustain. I am honored to be your President. I More than 600 trials and depositions giving expert testimony in federal
why it is important to be a member. I also welcome your I am proud of the accomplishments of our Association, and I and state courts means a solid, proven track record on which you can rely.
suggestions and invite you to e-mail me at I Numerous speaking engagements at ATLA, CLE, Inns of Court, and
am committed to our continued success. My roots are in Bronx university venues.
lucillebarbato@yahoo.com. You may also send inquiries, or County. I was born here 50 years ago and lived here most of
your e-mail address, to info@bronxbar.com. my life. While I now live in Westchester County, I am proud to Extensive Experience In:
We are planning ahead for our new and future members be an example of the adage that “you can take the woman out
• Wrongful Death/Personal Injury
through the Young Lawyers Committee with Dion Sankar as of the Bronx, but you can’t take the Bronx out of the woman”. My • Wrongful Discharge/Discrimination/
Chair. We hope to begin a Mentoring Program this year to pair office is on Westchester Square in the neighborhood where I Failure to Promote
young members with older and more experienced members grew up and my father was raised. My Bronx roots have instilled • Commercial Damages: Lost Profits,
for practical guidance as well as to answer questions in me good values and a steadfast work ethic. My father, an Breach of Contract
regarding the law and the profession. Young and mature ironworker and my mother, a hard working housewife, raised • Statistical Analysis of
lawyers alike should gain a better understanding of what “the three daughters and attended to my elderly grandparents, Discriminatory Practices
friendly bar association” is about by being a part of this Italian immigrants. Both parents died of cancer much too early, • Analysis of Life Care Plans
committee. Mentoring means a lot to me. As a young girl growing but their teachings of respect and hard work survive within me. • Valuation of Stock Options Headed by
up in the Bronx, in a middle class, blue collar household, with • Valuation of Household Services Frank D. Tinari, Ph.D.
You have my pledge that I will do my best and give my all in true
no lawyers or professionals as relatives, I relied upon mentors. Bronx team spirit. I only hope that in the end, with your support, and Parental Services
Call for gratis seminar/workshop for
While in school, teachers guided me. When I started working • Plaintiff & Defense Work your staff at your office or ours.
I do succeed in providing next year’s President with a great
as a legal secretary at the age of 16 and continued through law beginning as I pass on the baton.
school as a paralegal, lawyers inspired me. I am the reality of
Call for gratis consultation (212)201-0938
what it means to make a difference in another’s life. For this
or visit www.TinariEconomics.com
NEW YORK • 212.201.0938 • 500 7th Avenue, 10th floor, NY, NY 10018
NEW JERSEY • 973.992.1800 • 220 S. Orange Avenue, Suite 203, Livingston, NJ 07039
WORDS OF WISDOM
My whole philosophy on the bench is to take care of the lawyers . . . [and] to show them the respect they
deserve. Give them the day in court that they need and count on them to properly represent their client[s]. I MEDICAL EXPERT WITNESS
am rarely disapppointed. 30 years experience
Hon. Eugene F. Pigott, Jr. Specialist in internal medicine
Associate Judge
New York State Court of Appeals and infectious disease
Expert in reviewing hospital and
physician records
Extensive courtroom experience
The Advocate
Editorial Staff Can provide other medical expert
witnesses in virtually every area
Editor A.S. Ben-Merre
of specialization
Managing Editor Joyce Y. Hartsfield
Associate Editors William Ramos-Vazquez
Darin Wizenberg RICHARD S. KLEIN, M.D.
1872 Commerce Street
Yorktown, NY 10598
Opinions and legal citations contained in the articles in TheAdvocate are those of the authors and do not necessarily reflect the 914-962-3303
the views of the Bronx County Bar Association, its officers, directors or editors. Fax: 914-962-4271
THE ADVOCATE/Bronx County Bar Association Fall 2008 THE ADVOCATE/Bronx County Bar Association Fall 2008
2 15
MEET THE MEMBER
Darin Wizenberg In Memory of relationship. It doesn’t have a name and it isn’t easy
to explain, but we all know how great it is to practice
Robert J. Saltzman here and to work with our fellow attorneys.
Describe your background by Bob Saltzman was a large part of that tradition, and
and practice. Lewis E. Alperin he will be greatly missed.
Please honor and remember him by continuing to
As attorneys, we all learn make the practice of our profession in the Bronx the
I began doing civil and white collar envy of all the legal community.
eventually that the practice of law
criminal defense for a large Wall Street firm, then continues and the court moves on,
moved on to the Legal Aid Society’s Criminal Defense no matter the passing of any one of us. This is the way [In addition to his well-earned reputation for zealous
the world works, except in Bronx County where we try advocacy on behalf of his clients, and his great respect for
Division in the Bronx. There, I found my calling. Today hard to remember those who have passed and have the law and the legal process, Bob Saltzman should be
remembered for his great contributions as a member and
I am engaged in a solo practice of law, with offices in contributed so much to our legal system in the Bronx.
as a former President of the Bronx County Bar Association.
the Bronx and in midtown Manhattan. My focus is on Bob Saltzman has passed on but there is no way he
Every one of us who knew him came away, in some
will be forgotten by those who practiced with him. We all measure, as a better person and a better lawyer because
criminal defense and federal litigation, civil and have witnessed his dedication to his clients, his respect we knew him. On behalf of all the members of our
criminal. for our system, and his warmth and love for his Association, we say good-bye to Bob, with gratitude and
colleagues. heartfelt appreciation for all that he has done. For many
years, Bob was a partner of Stone, Saltzman and Israel,
I lost a good friend and colleague and the Bronx lost a
What do you enjoy most about your member- great lawyer when Bob Saltzman passed.
and specialized in criminal defense. He is survived by his
wife, Deanna, three children (Jonathan, Debra, and
ship in the Bronx County Bar Association? We who practice in the Bronx have a special kind of Stephen), and grandchildren. —Ed.]
It’s a place of opportunity. I’m always greeted with
a smile, and it’s an organization where I can be myself.
We’re all in it together. As Joe Carrozza mentioned in
the last edition of THE ADVOCATE, this Association
MEDICALCLINICSOFNYC.COM
provides an extraordinary opportunity for professional
Attn: All Attorneys
growth and camaraderie. As a young lawyer building
Drs. Krishna and Oshidar are proud to say that the
a practice, that means a lot to me. MEDICAL CLINICS OF NYC.com are now accepting all work related,
I also very much enjoy representing our Bronx auto related and slip/fall related injuries! Please visit our
County Bar Association on the Board of Directors of website for more information.
Legal Services of New York – and, since last year,
reading and writing as an Associate Editor of THE 1513 Voorhies Ave. 1163 Forest Ave
ADVOCATE. Brooklyn, NY11235 Staten Island, NY10301
P: (718) 332-7878 • P: (718) 332-5617 P: (718) 815-3529 • F: (718) 815-0005
F: (718) 332-8051 Office Coordinator: Sandy Patel
What are your ideas for the future?
Office Coordinator: Eric Turk, D.C. Cell: 973 964 -5070
In addition to the practice of law, I would like to reach Cell: 917-776-7566
out to members and other practitioners, and 189 Montague St, Suite 920
encourage involvement in our Association. I also Brooklyn, NY11201
3262 Westchester Ave P: (718) 802-0800 • F: (718) 625-4459
hope that THE ADVOCATE can expand with more
Bronx, NY10461 Office Coordinator: Jeff J. Mollins
articles and publish panel discussions on the law and P: (718) 904-0908 • F: (718) 904-0117 Cell: 917-880-6740
decisions of interest. Office Coordinator: Xerxes Oshidar, D.C
Cell: 516 503-7309
Do you have any heroes of the law? 3418 Broadway 2nd Floor
Abraham Lincoln and Thurgood Marshall. New York, NY 10031
P: (212) 283-2099 • F: (718) 904-0117
Office Coordinator: Xerxes Oshidar, D.C
Cell: 516 503-7309
THE ADVOCATE/Bronx County Bar Association Fall 2008 THE ADVOCATE/Bronx County Bar Association Fall 2008
14 3
Golf and Tennis Outing 2008
Sustaining Members
May - September 2008
Lowell Aptman George Friedman Michael Marinaccio
Louis Atilano Eugene Gallagher Christopher Meagher
Lucille Barbato William Gallina Brian Mittman
Michael Barnett Barry Gedan Joseph Monaco
Gerald Barton Jonas Gelb Carmine Musumeci
Jeffrey Belovin Howard Getz Steven Orlow
A. S. Ben-Merre Steven Grant Peter Overzat
Robert Birnbaum Antonio Grillo Maxwell Pfeifer
Hon. Denis Boyle H. Fitzmore Harris Frederic Potack
Michael Braverman Seth Harris Jeffrey Pogrow
Michael Buchicchio Joyce Hartsfield Marvin Raskin
Anna Cabrera Spencer Herman Kenneth Reiss
Michael Calano Steven Hess Murray Richman
Joseph Carrozza Robert Himmelman Michael Ridge
Daniel Cassidy Michael Huguenot Peter Ridge
Salvador Collazo John Janiec Sharon Rosenthal
Pat Crispi Joseph Jednak Lawrence Rosman
James Culleton Robert Kahn Mark Rubin
John Daly David Kapelman Thomas Russo
Stuart Davis Richard Kerner Roy Schwartz
John DePaola David Kirschner Jason Shapiro
Denise Dunleavy Paul Koors Gerald Sheiowitz
Martin Edelman G. Oliver Koppell Charles Spiegel
Christopher Esposito Lenore Kramer Jeffrey Stillman
John Fitzgerald James Langione Andrew Targum
Hon. Anita Florio Robert Levy Ted Trief
Patrick Fogarty Jeffrey Lichtman Mark Varrichio
Ruben Franco Norman Liss Rocco Vignola
Mitchell Franzblau Stephen LoPresti Sergio Villaverde
Alan Friedberg Michael Maiolica Frank Vozza
David Malach
Welcome New Members
May - September 2008
Hon. Lucy Billings Thomas Grogan Maritza McConneghey
Alfonso Brooks Jay Hausman Oroma Mpi
Brian Charles Opal Hinds Annamelda Paul
Kevin D’Arcy John Kouroupas Mary Peppito
David Darvish Lawrence LaBrew Lauren Roberts
Anthony DiPietro Theresa Lawson Cory Rosenbaum
Robert Evans Michael Lease Matthew Schroeder
Seth Fields Brian Levy Jacqueline Torchin
THE ADVOCATE/Bronx County Bar Association Fall 2008
4 13
PERSUADING THE JUDGE THROUGH weaves law and policy into the facts of the argument,
WRITING: FIFTEEN WAYS TO WIN addresses the most important issues first, and revises and
By edits multiple times before submitting the work to the court.
Gerald Lebovits Here are fifteen pointers to guide advocates in persuading
the judge that their arguments should prevail.
An advocate’s goal in addressing a (1) Know the Judge. Familiarize yourself with the
trial or appellate judge is to win. judge’s judicial philosophy and background before you
Honestly, but win nonetheless. The way appear. Knowing how the judge has ruled in previous cases
to win is to persuade the judge that your and how the judge conducts the courtroom enables the
argument is more compelling than your advocate to structure advocacy in a way that appeals to
adversary’s argument. Advocates seek the judge. One way to do this is to review the judge’s judicial
to persuade through written and oral opinions before drafting a brief. Some judges emphasize
advocacy. Persuasion in oral advocacy policy; other favor precedent. The persuasive advocate is
comes from oral argument in which an advocate engages flexible by knowing not only the judge’s preferences but
in a conversation with the court by answering the judge’s also by presenting the client’s position to reflect those
questions and presenting the client’s position. Persuasion preferences. Be familiar with the court rules and adhere
in written advocacy comes from a written brief or to them. Judges have procedural rules such as page limits,
memorandum to the court. deadlines, and font sizes. A persuasive advocate never
Successful persuasion in written advocacy requires the violates those rules.
advocate to articulate clearly what the client wants. Once (2) Articulate Your Position. Be clear and
the court is able to decide the advocate’s request — that straightforward in asking the court what relief you seek.
is, that the court has jurisdiction — the advocate must Do not be cowardly. Be direct and upfront. Judges seek to
convince the court that the client’s position is the strongest resolve cases as quickly as possible. Use blunt and
in the current situation and as a guiding precedent for future repetitive language to emphasize the client’s position and
situations. An advocate accomplishes this by arguing law the relief sought. Well-articulated introductions and
and fact. A persuasive advocate has the same goals conclusions are powerful and effective. The introduction
regardless whether the effort is made through written or and conclusion should highlight the brief’s primary
oral advocacy, but the techniques and style vary. arguments, explain how existing law supports those
Written advocacy is crucial to persuade. A brief consists arguments, and state what the brief is asking the court to
of numerous parts that give the court the necessary do.
background, the facts of the particular case, and the relevant (3) Be Credible. Maintain integrity. All advocates hope
law. Although the tone of an advocate’s brief is to convince the judge will agree with them on every issue. The
the judge, the advocate’s goal is to inform the judge of the persuasive advocate knows that this is not always possible.
pivotal issues of the case and articulate a position in a A successful advocate knows the adversary’s position and
straightforward, concise, and definitive way. A judge is anticipates the adversary’s arguments. Having a grasp of
persuaded when an advocate presents an articulate position. the other side’s position will direct the advocate to argue
To persuade, an advocate must inform. Judges are particular points more vehemently than others. Advocates
unfamiliar with the details of their cases until they hear are credible if they can distinguish which arguments should
argument. They rely on the advocate to provide the be conceded and which are meritorious.
background. An advocate’s brief can shape a judge’s (4) Know Your Boundaries. A persuasive advocate
opinion even before oral argument. As an advocate, you knows boundaries. An advocate may never exaggerate.
want to make it easy for a court to rule for your client. Avoid overstating with words like “always” and “never.”
The more knowledge an advocate has about the case, Credibility is also weakened when an advocate unfairly
the easier it is to persuade the court. Advocates are attacks and accuses the adversary, the court, or a court
expected to know the facts and legal principles of the case below. Persuasive advocates cautiously understate their
better than anyone else. Advocates are expected to present positions. A persuasive advocate should avoid using biased
arguments completely and honestly. Completely means modifiers and refrain from offending or misquoting
knowing the record as well the adversary’s contentions. adversaries, opposing counsel, or other courts. Advocates
Honestly means presenting all information accurately, even must portray the record scrupulously and accurately.
if that requires the advocate to concede some points. (5) Cite Accurately. A persuasive advocate uses
Each advocate writes in a unique and personal way. relevant sources carefully. An advocate’s brief can cite
Briefs vary in style, tone, and length. Although most multiple sources, including cases, other briefs, law-review
advocates follow a similar organizational format, no one articles, and documents from the record. Regardless of
approach is uniquely correct. The persuasive advocate the source being cited, the advocate must consult the
brainstorms all possible arguments, outlines before writing, appropriate manual and adhere to proper citation rules to
THE ADVOCATE/Bronx County Bar Association Fall 2008
12 5
ensure that all the necessary information is given. Use specific facts and precedent. And it makes it more difficult defendant for trial. If, however, within five days after §306.) Under CCA §306, however, where the
pinpoint (jump) cites so the judge knows the exact page for an adversary to misunderstand the argument presented. service of a demand for a change of venue, the plaintiff designated venue is improper, the Civil Court, unlike
where the citation came from. The more information the This abridged and straightforward roadmap will guide the serves an affidavit showing that the county specified Supreme Court, may, sua sponte, “transfer an action
advocate gives in citations, the more persuasive the structure of your brief and direct the judge through the by the defendant is improper, or that the county or proceeding to a proper county...” (Towers v. Long
argument. brief in its entirety. specified by the plaintiff is proper, the motion must be Island Ins. Props, 67 Misc.2nd 1062 [NYC Civ.Ct.
(6) Be Reasonable. A persuasive advocate is (11) Organize and Limit Issues. One key to persuade made in the county in which the plaintiff had 1985]; 7A Carmody-Wait 2nd, NY Prac. §221.)
reasonable. This means being logical and fair in arguing is to prioritize. Discussing every conceivable argument is designated that the trial take place. Moreover, as noted above, the CCA provides an
your position and asking relief from the court. Do not make a losing strategy. Advocates should identify the strongest In contrast, CCA has no written demand process expansive definition of both personal and corporate
requests that are far-fetched or unsupported by the record and most important issues supporting their position and argue that determines the forum in which the motion for residence for venue purposes.
or legal authorities. Advocates should also stay away from only those. They will be the issues that have the greatest change of venue must be made. Rather, CCA §306 Thus, in light of the CCA’s flexible approach to
adverbial excesses like “only” and “certainly.” Few things possibility of success. The judge neither wishes nor has simply requires that a motion for such relief be made venue, it seems clear that the Legislature never
can be said with certainty. time to hear every conceivable argument. Worse, a judge “before or at the joinder of issue.” The Civil Court intended to provide Civil Court with the discretionary
(7) Be Specific. Specificity accomplishes two purposes who hears some frivolous arguments might lose focus and Uniform Rule 208.8(b), however, fills the gap, by authority to change venue as provided to the Supreme
in brief writing. It shows that the advocate has conducted believe that all the arguments are frivolous. A practitioner requiring that the motion be made in the county where Court under CPLR §510.
thorough research. It also makes the adversary’s position should distinguish between strong arguments and weak the plaintiff had placed the action for trial. The statutory scheme notwithstanding, an argu-
more difficult to prove by creating fewer loopholes in one’s arguments and present only the winning ones. Less clear are the consequences of a ment can be made that the Legislature’s failure to
own argument. Providing nonconclusory examples is an (12) Analogize. Use fact and law to articulate your defendant’s untimely demand for a change of venue include a discretionary change of venue provision in
effective way to stay detail-oriented. Thus, in describing a position. A persuasive advocate is able to weave the facts as of right in Civil Court. In Supreme Court, if a the CCA did not mean to deprive Civil Court of that
car accident, the stronger argument recalls the color, model, of the particular case into existing, applicable law. This defendant fails to timely move for a change of venue as authority pursuant to CPLR §510. Indeed, the silence
make, time of day, number of passengers, and intersection requires the advocate to be an expert of the facts and the of right under CPLR §510, based upon the plaintiff’s of the CCA on procedural matters should trigger the
at which the accident occurred, as opposed merely to record and to have a comprehensive view on favorable selection of an improper county, that defendant is no provisions of CPLR §101 and CCA §2102. CPLR
stating that “two black cars collided at some point in the and unfavorable precedent. An advocate who has an all- longer entitled to a change of venue as of right. The §101 provides that the CPLR shall apply to all Civil
afternoon.” encompassing understanding of the law relevant to the case motion may still be made, however, under the procedures in all courts, except where the procedure
(8) Be Original. Persuasive practitioners find ways to can then successfully analogize and distinguish the client’s discretionary grounds for a change of venue, which is regulated by inconsistent statute. Similarly, CCA
argue their positions creatively, even when they follow a position from earlier cases. An advocate’s position can be are: (1) if there is reason to believe that an impartial trial §2102 further provides that the CPLR and other
generally adhered-to format for court writing. Vary bolstered and strengthened by both comparing and cannot be had in the county selected by the plaintiff; or provisions of law relating to practice and procedure in
sentence length and sentence structure. Choose the best contrasting the case from other cases. Moreover, an (2) if the convenience of the material nonparty the Supreme Court, notwithstanding reference by
words to convey your position. Refrain from using clichés advocate who succeeds in analogizing and distinguishing witnesses and the ends of justice would be promoted name or classification therein to any other court, shall
and legalese. Refer to parties by names that bolster your the client’s position can weaken the adversary’s position. by a change. apply in this court as far as the same can be made
position. Use visuals and examples to illustrate your position. (13) Have a Theme. After all preliminary research has It is not clear whether this option is available in Civil applicable and is not in conflict with the CCA. Since
Leave lots of white space in your brief to make it easy for been done but before the advocate begins to write, the Court. Since no similar provision is contained in the there is no specific provision in the CCA directly
the judge to read your writing. The less boilerplate, the advocate should see the big picture and outline how to CCA’s elaborate venue scheme, an argument can be discussing whether it grants or deprives the Civil
more memorable is the advocate’s work. convey it. This allows the advocate to develop a legal theory made that Civil Court has no discretionary authority to Court of such discretionary authority to change venue,
(9) Be Short and Sweet. Make your argument and move that can serve as the brief’s overarching theme. A theme change the venue of an action pursuant to CPLR it can be persuasively argued that the CPLR’s grant of
on. Write it once, all in one place. Brevity will make the is a single idea that runs through the entire brief. The theme §510, either on the ground of possible impartiality or discretionary authority to the courts to change venue
brief clearer and more persuasive. Judges consider multiple should be easy to understand. The theme guides the way inconvenience of the nonparty witnesses. This is the is not governed by an inconsistent statute in the CCA.
cases simultaneously. The brief should get to the core of an advocate portrays the facts. The persuasive advocate position taken by legal commentators such as Surprisingly, there is no case law addressing this
the argument quickly. Otherwise, the advocate’s writing will make sure that every argument supports that theme or Professor David D. Siegel (New York Practice, 3rd Ed., issue. Thus, Civil Court practitioners are presumably
will be lengthy and disorganized. Two concerns arise with rebuts the adversary’s theme. 1999). The same point was made, but in dicta, in free to move for a discretionary change of venue under
lengthy and disorganized briefs. The judge will be forced (14) Do Not Rush. No need to speed through brief Neurologic Services, P.C. v. American Transit Ins. CPLR §510, despite the CCA’s silence on the issue.
to piece together the advocate’s arguments and position. writing. Persuasive writing takes time. It requires the Co., 183 Misc.2nd 496 (NYC Civ.Ct.2000). Significantly, both judges and practitioners are
That wastes the court’s time, and the judge might choose advocate to schedule. A persuasive brief will have been This position is consistent with the CCA’s flexible operating with the understanding that CPLR §510
not to read the brief. Also, the clearer and more concise thought out in advance and written in multiple stages. approach with regard to venue. For instance, unlike applies in Civil Court, in light of the not-so-infrequent
the brief is, the less the risk that the judge will overlook an Allocate enough time to research applicable law, outline Supreme Court, Civil Court has the discretion to, sua motions made in Civil Court for a change of venue
argument. If the advocate’s arguments are explicitly laid the argument, write, and edit. A brief written without the sponte, order a change of venue from an improper under the discretionary grounds of CPLR §510.
out throughout the brief, the judge will not need to search advocate’s conducting thorough research, outlining county. (Moreover, Civil Court Uniform Rule §208.8[b] (See e.g., Neurological Services P.C. v. All State Ins.
through numerous pages of discussion to understand the arguments, and editing is an unpersuasive and careless provides that “theclerk shall reject a summons where Co., 181 Misc.2d 98 [NYC Civ.Ct., 1999]; Reynald v.
position being advanced. brief. Persuasive advocates will have uncovered material it appears...that the proper venue is a county other Souffrant, N.Y.L.J., Oct. 29, 1996, P.25 [NYC Civ.Ct.].)
(10) Give a Roadmap. Give the judge a short and simple relevant to their case and their adversary’s case. than the one it is offered for filing.”) CCA §306
provides that, absent a timely motion, a defendant is William Ramos-Vazquez is the Law Secretary to Associate
introduction at the outset to set out the argument and format Persuasive advocates start early and edit late. Justice Dianne T. Renwick, Appellate Division, 1st Department.
of your brief. This creates a coherent and readable text. It (15) Proofread. Once you have finished writing, check “deemed to have waived any objection relating to a He is also a member of the Bronx County Bar Association and
also puts the main points of the argument at the forefront for errors. Whether the errors are stylistic, typos, or proper venue .” (The only exception pertains for the an Associate Editor of THE ADVOCATE.
of the brief. That allows the judge to know exactly what grammatical, they make an advocate’s position less venue provision regarding real property. In such
arguments are being made before the judge begins reading persuasive. A brief with errors means the advocate did not situation, the motion can be made at any time. CCA
THE ADVOCATE/Bronx County Bar Association Fall 2008 THE ADVOCATE/Bronx County Bar Association Fall 2008
6 11
NAVIGATING THE NEW when the City is the plaintiff. In such situations, CPLR review the brief thoroughly and carefully before presenting
YORK CITY CIVIL COURT §504(3)provides that the usual venue rules apply it to the judge. This makes a judge see that advocate as Sublet: 1-3 offices in plush professional suite
where residence of the parties is the key factor in careless. Advocates careless about typos might be careless Located in downtown White Plains
(Part 2)
by determining the appropriate venue. The CCA, about the record. To eliminate errors, an advocate should Reception area with meet and greet services,
William Ramos-Vazquez however, contains no such provision. Instead, when edit and revise multiple times. Spend some time away from conference room, library, kitchen, and sec. area.
the City is the plaintiff, the action must be brought the brief between the writing and editing stages. Get an Parking available
either in New York County or in the place where the editor to review the brief for errors. This allows the advocate $1100-$1400 depending on requirements.
This is the second installment claim arose, pursuant to CCA §304(a). to read and revise with a fresh thought process and Reply to: ag@gzlaws.com
of a three-part series discuss- The main venue-determining statute of both the consequently find errors the advocate might otherwise
ing major differences in civil CPLR and CCA is the provision that determines venue overlook.
practice in the New York City based on the residence of the parties. The word Written advocacy is a powerful tool in persuading the court.
Civil Court viz-a-viz Supreme Court. Previously, we “transitory” is commonly used to describe an action A persuasive advocate takes the time to draft a brief to ensure MERIDIAN
addressed the differences between the two courts when venue is tied to residence. The general rule of that the final draft is polished. Persuasion requires the skill INVESTIGATIONS & SECURITY
with regard to the manner of the commencement of an both transitory venue statutes (i.e., CPLR §503 and and effort to move the judge’s heart and mind. The time Licensed, Bonded, Insured
action. To fully appreciate the distinctive CCA §301[a]) is that the plaintiff may bring the action expended aids not only the client but, in our adversary system, Specializing in accident cases & negligence claims.
characteristics of the New York City Civil Court, in any county in which either of the parties resides. the administration of justice as well. Trail Preparation, Investigations,
practitioners must also understand the unique Process Serving...
There are, however, two significant differences
Servicing the entire Metro New York area with
aspects of the Civil Court regarding the interrelated between the transitory venue provisions of the CPLR Gerald Lebovits is a Housing Court judge in Manhattan and an adjunct offices on LI and NYC.
concepts of venue and forum non conveniens. In this and CCA. First, CCA §301(a) has a broader definition professor at St. John’s University School of Law, where he teaches trial and
appellate advocacy. The Advocate has asked Judge Lebovits to write four Contract: Jeremy E. Stephens, Esq.
article, we deal with venue; and in the third and final of residence for corporations. CPLR §503(c) restricts articles on oral and written advocacy. This is his second installment. Judge jes@meridian-inv.com
article, we will discuss forum non conveniens. the residence of a corporation to the place where its Lebovits thanks Brieana Winn, a Brooklyn Law School student, for her (917) 621-6924 and (212) 837-7714
Venue relates to the geographical subdivision in research help.
principal office is located, regardless of whether it has
which an action may be brought. Pursuant to Article offices in other counties. In contrast, CCA §305(b)
3 of the Civil Court Act (CCA), Civil Court is a single provides that for venue purposes a corporation may
court in New York City, but it is divided for venue be deemed to have more than one residence, and thus
purposes into the City’s five counties. Civil Court has a cause of action may be brought in “any county where IN MEMORY OF 9/11
its own venue provisions and it is not generally it transacts business, keeps an office or is established
governed by the venue provisions of the CPLR, with by law.” [On 9/11/08, a solemn ceremony was held at the Bronx County Hall of Justice in memory of the victims of 9/11. Following
one possible exception relating to the discretionary The other difference between the CPLR and CCA are excerpts of the remarks made by our President, Lucille M. Barbato. -Ed.]
authority to change venue under CPLR §510, which is on transitory actions relates to the situation where As President of the Bronx County Bar Association and on behalf of our members, I am honored and
fully discussed below. There are, however, some neither party resides in any of the pertinent counties. humbled to stand here before you and to be a part of this special program where we are honoring
venue provisions in the CCA that are analogous to the In such circumstance, CPLR §503(a) allows the heroes.
provisions in the CPLR dealing with the same subject action to be brought in any county in the state that the I first must acknowledge the music provided by the students of Cardinal Hayes High School. Hearing
matter, and some provisions that are not. plaintiff wishes. The CCA does not contain a similar your performance of patriotic songs, especially on this day, makes me proud to be an American. I look at
Let’s first discuss the identical venue provisions. provision. Instead, when no party resides in New York your young faces, and I see goodness on a day that unfortunately reminds us that evil exists in this
CPLR §503(f) and CCA §301(a) contain identical City, CCA §301(b) permits the action to be placed in world. You are the promise of our future. You represent the youth of our country and make us realize
venue provisions with regard to actions arising out of the county within the City in which one of the parties how important it is to have ceremonies like this one——so that none of us ever forget what happened on
consumer credit transactions when the defendant is a has regular employment or a place for the regular September 11th, 2001, especially for your sake and the sake of all young people, because you are our
purchaser, borrower, or debtor. Both require that the transaction of business; or, if a party has no such future heroes.
action be brought in the county where the defendant employment or place of business within the City, in the We must never forget what happened seven years ago for another reason——we must honor our
(consumer) resides, or in the county where the county in which the action arose. fellow citizens whose lives were taken by senseless acts of terrorism, and we must pay our respects to
transaction took place. Likewise, CCA has a provision The last significant difference between the CPLR their families. That is the least we could do; it certainly could have been any one of us. Today we are
analogous to CPLR §501 with regard to actions that and CCA relates to the situation where the plaintiff has remembering three members of our courthouse family——three court officers who died while keeping
would affect the possession, use, and enjoyment of designated an improper venue. Pursuant to CPLR others safe and secure. To their families, we must say how sorry we are for your loss, and also thank
real property. As in the Supreme Court, such action §511(b), in order to effect a change to a proper venue you for allowing us to share this day with you. We all may not have known your loved ones personally,
must be brought in the county where the real property as a matter of right in Supreme Court, the defendant but having court officers as friends and also interacting with them often in the Bronx courthouses, we
is located, pursuant to CCA §301. must serve a written demand upon the plaintiff that the know how special your loved ones are. They will remain forever in our memories as true heroes.
Similarly, the CPLR and CCA contain analogous action be tried in a county that the defendant specifies Today, we will also be recognizing the recent heroic acts of one of our Bronx court officers.He reminds
provisions when the defendant is either the City of New as proper. The demand is required to be served with us that, even though we lost some sense of security as a result of being attacked on 9/11, real present-
York or the New York City Housing Authority. Both the answer or before the answer is served. day heroes are always with us and around us, if not within each and every one of us. We should never
CPLR §504(3) and CCA §304(a) provide that an Thereafter, within fifteen days after the service of the lose our faith in the goodness of people, or else the terrorists will have already won.
action against either of these entities must be brought demand, unless the plaintiff consents in writing to a May we never forget what happened on Sept. 11th, 2001, and let us always honor our heroes-past,
in the county where the claim arose, or in New York change of venue, the defendant may move for a present and future.
County if the claim did not arise in the City. Different change of the location of the trial, and may notice such
rules are, however, provided in the CPLR and CCA motion to be heard in the county specified by the
THE ADVOCATE/Bronx County Bar Association Fall 2008 THE ADVOCATE/Bronx County Bar Association Fall 2008
10 7
for its celebration. We explained that the exhibition was being
run by the U.S. Government through its Bicentennial
Commission. The response was, “You will have to comply with
this Order.”
SCHEDULE OF 2008 Mr. Biebel turned to me and we discussed the legality of what
was taking place. He indicated that the Commission’s counsel
Lunchtime Continuing Education Program was U.S. Attorney General Ed Meese and locally, it would be the
U.S. Attorney. But since I was present and was an attorney
affiliated with the Commission, I was requested to act as
Member Cost: $10 per credit Non-Member Cost: $15.00 per credit counsel and represent the Commission. He also indicated
that we should call Chief Justice Burger at home to seek
direction. We called Chief Justice Burger at home from a
ALL PROGRAMS ARE APPROPRIATE FOR campus pay phone. Biebel asked me to speak to the Chief.
After explaining to Chief Justice Burger what was taking place,
EXPERIENCED & NEWLY ADMITTED ATTORNEYS he responded “Doesn’t New York State know that it has no
jurisdiction over the United States of America?” He asked me
to work out a resolution, since it was always the Commission’s
Date, Time & Location PROGRAM FACULTY (From left to right ) Lehman College President Leonard Lief, Hon. Dominic R. Massaro,
intention to deliver the documents to Tennessee for its
celebration, inasmuch as this was, in fact, the last day of our
Norman Liss, and Hon. Fernando Ferrer. (Sept. 1987)
exhibition.
After negotiations into the late evening, we made
Tues. , September 23, 2008 COLLECTING THE MOST IMPORTANT BILL arrangements for the documents to be removed carefully, in the
1:00 P.M. REPRESENTING by absence of the Smithsonian and to be turned over to the Sheriff
MENTALLY LISA SCHRIEBERSDORF, ESQ. NORMAN LISS for transportation to Tennessee. However, the Chief Justice
265 E. 161st Street Brooklyn Defender Assoc. indicated that he did not want an Order to be on the record
Room LL-250 ILL against the Commission and that I should bring a proceeding
Having chaired the Historic Documents Committee during
Bronx, N.Y. 10451 DEFENDANTS the celebration of The Statue of Liberty in 1986 and arranged for to vacate the Order. A proceeding was brought and
and displayed an original copy of the Declaration of arrangements were made for the Deputy Attorney General of
Sign-In Opens 12:50 P.M. Independence, I was asked by the U.S. Bicentennial Tennessee to appear in Court and to vacate the original seizure
1 Credit-Professional Practice Order.
Commission, celebrating the 200th Anniversary of the U.S.
Constitution, chaired by former Chief Justice Warren Burger, in The following day’s newspapers in Tennessee carried
POST 1987 to assist in obtaining an original copy of the Declaration of headlines that Tennessee had “liberated the freedom
Wed., October 22, 2008 CONVICTION Independence to be displayed by the U.S. Commission as part documents.” In the aftermath of the bizarre proceedings, a
1:00 P.M. REMEDIES of its national traveling exhibition called “Roads to Liberty.” letter of apology was later issued by the Governor of
265 E. 161st Street I was successful in providing it and in return, I had asked the Tennessee to Chief Justice Burger.
Laying the Ground- DAVID K. BERTAN, ESQ. The law firm that had been retained to represent the State of
Commission and Chief Justice Burger to permit the national
Room LL-250 work for an Appeal exhibition, carried on a bus curated by the Smithsonian, to be Tennessee was a well known New York firm with an excellent
Bronx, N.Y. 10451 displayed in the Bronx, When questioned as to where it would record as bill collectors. They were once again successful.
Sign-In Opens 12:50 P.M. 1 Credit-Professional Practice be appropriate and safe, I suggested Lehman College. The They had collected the Bill of Rights!
display took place at Lehman on the last day of this major
Norman Liss, a long-time member of the Bronx County Bar
patriotic exhibition, ironically, on September 11, 1987. The
Wed., October 29, 2008 DISCOVERY Association, specializes in the practice of transaction and
Bronx Borough President, Fernando Ferrer, issued a
1:00 p.m. WITH proclamation declaring the day as “Magna Carta Day in the litigation matters. He has served as Counsel to the Statute of
INCARCERATED Liberty Commission and is the Chair of Development of the
851 Grand Concourse JUSTICE ALISON TUITT Bronx.”
Ellis Island Restoration Commission. He also has an avid
Room PARTIES Supreme Court It was close to 5:00 P.M. on September 11, 1987 and the
interest in history and historical matters, and is a member of
Bronx, N.Y. 10451 students had been touring through the bus all day, viewing the
Bronx County original Magna Carta, the Thomas Jefferson copy of the Bill of
the Bronx County Historical Society.
Sign-In Opens 12:50 P.M. 1 Credit-Professional Practice
Rights, the original Declaration of Independence, the
Mayflower compact and similar original historical documents.
Tues., November 18, 2008 I was with Commissioner Fred Biebel, Assistant to the Chief
CROSS EXAMINATION Justice, when we heard police sirens approaching the
1:00 P.M. campus. Almost a dozen vehicles entered the campus, some
OF THE DWI
265 E. 161st Street blocking the entrance. There were police vehicles from the 52nd
BREATHALYZER STEPHEN B. EPSTEIN, ESQ.
Room LL-250 Precinct and state police vehicles from New Jersey. We
TECHNICIAN realized we were surrounded by state troopers from
Bronx, N.Y. 10451
Tennessee as well as NYPD officers.
Sign-In Opens 12:50 P.M. 1 Credit-Professional Practice We were informed that the Governor of Tennessee had flown
members of his Attorney General’s staff and Tennessee state
police to Teterboro Airport in New Jersey where they had picked
up New Jersey State Police, and they had all driven to Lehman
Date: TBA UPDATE ON College in the company of the NYPD.
1:00 P.M. THRESHOLD LAW HONORABLE STANLEY GREEN We were approached by a sheriff who asked us who was in
851 Grand Concourse 2008 Supreme Court charge. Mr. Biebel responded, “I am, what’s this about?” He
Room was promptly served with a Court Order directing the sheriff to
Bronx County search for, seize and remove the Bill of Rights from the bus and
Bronx, N.Y. 10451 to turn it over for transportation to Tennessee. We were
Sign-In Opens 12:50 P.M. 1 Credit-Professional Practice informed by an attorney representing Tennessee that
Tennessee was to celebrate its Bicentennial the next day and
we learned that the Tennessee governor was mistakenly under
the impression that the exhibition was under the auspices of a
not-for-profit orgainization and that that organization intended to
violate an agreement to turn the document over to Tennessee
THE ADVOCATE/Bronx County Bar Association Fall 2008
8 9
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