1. law, govt and politics

THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION
www.nassaubar.org
October 2014
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DOMUS ON THE LAWN 2014
OF NOTE
NCBA Member Benefit – I.D. Card Photo
Obtain your photo for court identification
cards at NCBA Tech Center. Cost $10.
November 5, 6, & 7 • 9 a.m.-4 p.m.
EVENTS
Connections,
Collaborations
and Camaraderie
By Valerie Zurblis
JUDICIARY NIGHT
Thursday, October 16, 2014
5:30 p.m. at Domus
Pre-Registration Required
See page 6 for details
Fourth Annual PRO BONO LEGAL FAIR
Volunteer Attorneys Needed
Thursday, October 23, 2014
3:00-7:00 p.m. at Domus
See INSERT
WE CARE Senior Citizens'
Thanksgiving Day Luncheon
Thursday, November 27, 2014
11:00 a.m. - 1:00 p.m.
See page 18
SAVE THE DATE - Note Date Change
WE CARE Gingerbread University
Saturday, December 6, 2014
Details coming soon
SAVE THE DATE
Wassail
Thursday, December 11, 2014
6:00 p.m. at Domus
Details coming soon
The cloudy skies on September 10 kept
the heat low, but the networking was set
on high on the front lawn of the Nassau
County Bar Association. More than 350
lawyers, judges, court personnel, law students and new grads congregated on the
corner of 15th and West Streets in Mineola
to kick off NCBA’s busy fall season at the
annual Domus on the Lawn barbeque.
“Whether they came for social or business reasons, Domus on the Lawn reminds
our members of the many benefits provided by the Bar Association, including our
best asset – providing the one place where
all legal practitioners can come together,”
noted Geoffrey Prime, co-chair of the
Association Membership Committee.
Between burgers and bites, the crowd of
familiar faces greeted colleagues after the
long summer. Recent Touro Law School
graduate Katie Trotta was not wasting any
time while waiting to see if she has passed
the bar in November. She had taken the
advice of her mentor, Michael Markowitz,
Photos by Hector Herrera
See DOMUS ON THE LAWN, Page 23
Funding Required for Continued Legal
Services to Assist Sandy Victims
WHAT’S INSIDE
FOCUS: GENERAL OCA ISSUE
Domestic And International
Medical Travel
Vol. 64, No. 2
Page 3
Does Federal Prosecution Of Marijuana
Offenses In New York State Violate
Equal Protection
Page 3
Matrimonial Actions and the Use of
Supplemental Needs Trusts for
Individuals with Disabilities
Page 5
Steven G. Leventhal, Second Vice
President for the Nassau County Bar
Association, testified that there is a permanent and continuously evolving need for
adequately funded legal service providers
two years after Superstorm Sandy hit
Nassau County, with no end in sight.
Codifying ADR: Referencing ADR in
Page 7
Letters of Engagement
A Primer for Service of Process Upon
Foreign Entities Under FRCP 4 Page 7
The Change from Cash to Accrual –
How Would It Impact Your Firm
Page 9
and Partners?
Business Valuations for Matrimonial
Page 11
Litigation: An Insider's View
The Medicare Hospice Benefit Page 16
New York State Chief Judge Hon.
Jonathan Lippman is conducting a series
of public hearings to evaluate the continuing need for unmet civil legal services. At
the Second Department hearing held last
month in Staten Island, Leventhal said
that many problems homeowners still face,
such as obtaining compensation from
government programs and insurance
providers, could have been prevented with
more legal representation.
“Recently, FEMA has requested that
some homeowners refund benefits that the
agency claims were overpaid. We believe
that some errors in payment may have
occurred due to bureaucratic inefficiency,
incomplete documentation and other inadvertence, all of which may have been avoided or minimized if applicants had wider
access to legal representation,” he said.
“In some cases, the program established
to provide revitalization assistance to
storm damaged communities, the New
York Rising Community Reconstruction
Program, has declined to release funds to
See LEGAL SERVICES, Page 6
UPCOMING PUBLICATIONS COMMITTEE MEETINGS
Thurs., Nov.13, 2014
l
Thurs., Dec. 11, 2014 – 12:45 at Domus
A View from the Bench
Don’t Mess with Present Sense
Page 12
Impression!
The Lawyer Assistance Program provides confidential help to lawyers
and judges for alcoholism, drug abuse and mental health problems
24/7. Call 1-888-408-6222. Calls are completely confidential.
WE CARE GOLF CLASSIC
Another Success!
This summer, the annual
Stephen W. Schlissel Golf and
Tennis Classic, Long Island’s
largest gathering of the legal community at a charity event, raised
nearly $300,000 for disadvantaged
Nassau residents. Sponsored by the
We Care Fund, part of the Nassau
Bar Foundation, NCBA’s charitable
arm, the outing attracted hundreds
of golfers, tennis players, attorneys,
judges and sponsors who played at
Tam O’Shanter and Mill River
Country Clubs.
The proceeds will be distributed
through charitable grants to
improve the quality of life for children, the elderly and others in need
throughout Nassau County.
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Nassau Lawyer
NCBA Committee Meeting Calendar • Oct. 15 - Nov. 14, 2014
Questions? Contact Stephanie Pagano (516) 747-4070 [email protected]
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
Wednesday October 15
Wednesday October 22
Wednesday October 29
Construction Law
12:30 p.m.
Vincent Pallaci
Attorney/Accountants
12:30 p.m.
Neil D. Katz
Real Property Law
5:30 p.m.
Kevin McDonough/Mary Mongioi
By Laws
5:30 p.m.
Peter H. Levy
Appellate Practice
12:30 p.m.
Richard Langone
Thursday October 23
Ethics Committee
5:00 p.m.
Omid Zareh
Thursday October 16
Publications Committee
12:45 p.m.
Chris DelliCarpini
Education Law
12:30 p.m.
Douglas Libby
Civil Rights
12:30 p.m.
Jason Starr
Monday October 20
Tax Law
12:30 p.m.
Noelle Geiger
Tuesday October 21
Veterans & Military Law
12:30 p.m.
Ed Cunningham
Senior Attorneys
12:30 p.m.
Charles Lapp III
Plaintiff’s Round Table
6:00 p.m.
Terrence Tarver
Elder Law, Social Services & Health
Advocacy
12:30 p.m.
Moriah Adamo/Paul Hyl
Friday October 24
Bankruptcy Law
8:00 a.m.
Holly Holecek
Sports, Entertainment, Media Law
12:30 p.m.
Ross Schiller
Tuesday October 28
Immigration Law
12:30 p.m.
Rajat Shankar
District Court
12:30 p.m.
Mitchell Hirsch
Association Membership
12:45 p.m.
Marc Gann/Geoffrey Prime
Labor & Employment
12:30 p.m.
Jeffrey Schlossberg
Thursday October 30
Commercial Litigation
12:30 p.m.
Kevin Schlosser
Matrimonial Law
5:30 p.m.
John DiMascio Jr.
Monday November 3
Thursday November 13
Technology & Practice Management
8:00 a.m.
John Whiteman
Thursday November 6
Hospital & Health Law
8:30 a.m.
Geoffrey Kaiser/Kevin Mulry
Publications Committee
12:45 p.m.
Chris DelliCarpini
Community Relations & Public
Education
12:45 p.m.
Adam D’Antonio
Criminal Court Law & Procedure
12:30 p.m.
Brian Griffin
Wednesday November 12
General/Solo/Small Firm Practice
5:30 p.m.
Gary Port
Alternative Dispute Resolution
8:00 a.m.
Betty Donlon
Friday November 14
Tax Law
12:30 p.m.
Noelle Geiger
Women In The Law
12:30 p.m.
Barbara Gervase/Amy Hsu
* Committee Chairs and Co-Chairs denoted in Italic.
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Nassau Lawyer
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Domestic and International Medical Travel
The economic reality is that the
Late in 2000, medical travel experiworld is flattening. Education and tech- enced a spike in popularity, mostly in
nological advancements have never the areas of cosmetic and dental treatbefore been available to so many people ments. During this period, there was
in so many countries. New business increased research and an increase in
models in all industries are undergoing the number of facilitators offering servenormous reform, and the delivery and ices to patients wishing to travel overpayment for healthcare services in the seas for treatment. In 2008, the
United States will be no exception.
American Medical Association (“AMA”)
The US is undeniably still the addressed the increase in medical travworld’s pioneer for the treatel and issued the New AMA
ment of complex and unpreceGuidelines On Medical
dented medical cases. This
Travel.2 The economic downcountry has long faced competurn and the uncertainty of
tition of inexpensive manual
the Affordable Care Act
labor from outside its borders.
(“ACA”) temporarily halted
What has changed is how the
the upward trend. The 2008
US will compete in the 21st
report from the AMA Counsil
century with less expensive,
on Medical Service, from
brilliant labor in countries
which the guidelines were
with advanced technology
adopted, has not yet been
and governments that supupdated. With the new
port the development of techhealthcare law now implePatricia Kessler mented and the realities of
nology, medical care and education to its citizens.
its massive changes, there is
Medical treatment outside a person’s once again increased interest and develhome state or country, also known as, opments in domestic and foreign medmedical travel or medical tourism, is ical travel among employers, insurers,
rising in the US and around the world. patients, governments and healthcare
There are a number of factors driving providers.
this increase including restricted availRising medical costs3 and the full
ability of services, lengthening waiting implementation of the ACA are creating
times, increased accreditation of foreign a new, more sophisticated and informed
hospitals and clinics, and greater access healthcare consumer. An increasingly
to information to patients willing to competitive landscape for providers,
travel. Cost is also a factor. Research insurers and hospitals will force a
has shown, however, that it is second- realignment of services and products in
ary to the patients’ demand for expert- hopes of maximizing quality and profise, and the qualifications of the med- itability.
ical providers and facilities.1
Medical travel is defined as traveling
outside of the home region in pursuit of
health care that is more accessible, of
higher quality, and/or lower cost. This
travel may be outbound: US patients
traveling to other countries; inbound:
patients traveling to the US; or intrabound: patients traveling domestically.
Transparency
Increased transparency in pricing,
quality and wait times will create
increased competition among medical
providers and facilities. Dr. Kanu
Okike, an orthopedic surgeon at Kaiser
Permanente Moanalua Medical Center
in Honolulu, discusses the issue of the
cost of implantable medical devices in a
January 2014 article in Health Affairs.
“In orthopedic surgery, we’re never told
how much things cost. We never see the
cost displayed anywhere, and even if
you were interested, there’s no great
See TRAVEL, Page 19
Does Federal Prosecution of Marijuana Offenses
in New York Violate Equal Protection?
The highest maximum sentence for
criminal sale of marijuana in the first
degree – the most serious marijuana
offense under New York State Law – is
15 years,1 whereas the highest maximum sentence for criminal sale of marijuana under Federal law is life.2
Notwithstanding that federal law
labels the sale and distribution of marijuana a very serious criminal offense,
two states, Colorado and Washington,
have legalized the recreational use of
marijuana, and at least a half dozen
other states, including New York, have
legalized its use for limited medicinal
purposes.3 California allows for the cultivation of marijuana by or for individuals with a very wide array of medical
conditions, including such ailments as
migraines, arthritis, or nausea.4
Indeed, California allows individuals to
cultivate 100 or more marijuana plants
and only requires a doctor’s advance
approval.5 The conduct allowed in
Colorado, Washington and California
clearly violates Federal law.6
to bring federal criminal charges for
possession or sale of marijuana.
In response to the growing tide of
The Attorney General has the
public opinion against criminalization authority to re-classify drugs.9 While it
of marijuana, on March 18, 2009, would appear that the Holder/ Ogden
Attorney
General
Eric
Holder Memos qualify as de facto regulations
announced that the federal govern- altering the prosecution of marijuana
ment would not prosecute marijuana offense, the Second Circuit has held
distributors so long as those
that they are merely advisory
distributors were not violat(to US Attorneys) and do not
ing their respective state
purport to give defendants
laws regarding medical marenforceable rights.10 The
ijuana.7 In that announceSupreme Court has not yet
ment, Attorney General
addressed this issue. It
Holder declared, “given the
appears to this author that
limited resources that we
the “Holder Ogden Memos”
have, our focus will be on
are “wink-and-nod” de facto
people, organizations that
regulations that no Assistant
are growing, cultivating subUnited States Attorney
stantial amounts of marijuawould ignore.
na and doing so in a way
Federal criminal law is
Richard M.
that’s inconsistent with fedsupposed to reflect national
Langone
eral and state law”(emphasis
policy. If the intent of the
supplied).8
federal marijuana legislaThereafter, on October 19, 2009, tion is to punish – which the Supreme
Deputy Attorney General Ogden issued Court has held is the only purpose for
a Memorandum that reaffirming the imposing a prison sentence11 – then
DOJ policy of not prosecuting putative should that national policy preempt
marijuana offenses if the activity is state law, regardless of individual state
legal within the particular state, and consensus?12 Stated another way, if
the state has in place a regulatory the prosecution of marijuana cases is
scheme sufficient to obviate the federal not a sufficiently important federal
interest in preventing the illegal distri- interest to demand nationwide obedibution of marijuana. In essence, the ence, then it should not be a federal
“Holder/Ogden Memos” encourage interest at all.
federal prosecutors to defer to state
See PROSECUTION, Page 25
law in deciding whether or not
Recent Deference to State Law
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Nassau
Lawyer
Nassau Lawyer
Shakespeare and the Umbrella Revolution
People who decry the role and influence of lawyers in our
society have little trouble finding like-minded souls with whom
they can commiserate. Their rallying cry too often is Dick the
Butcher’s admonition in Shakespeare’s Henry VI, Part 2, “The
first thing we do, let’s kill all the lawyers.” And so, it is hardly
shocking that, according to the Wall Street Journal, one of the
best-selling coffee mugs at the Shakespeare Theatre
Company’s gift shop in Washington, D.C. bears this tag line.
Although scholars debate the meaning and context of this
line, many agree with Supreme Court Justice John Paul
Stevens, who stated in a 1985 opinion that “As a careful reading of that text will reveal, Shakespeare insightfully realized
that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Current events support the Bard’s wisdom, and show yet
again how lawyers are the vanguard of a democratic society
that respects individual rights and liberties.
On June 10, 2014, China’s cabinet, known as
the State Council, issued a “white paper” on the
practice of the “one country, two systems” policy in
Hong Kong, the purpose of which is to “realize the
peaceful reunification” of Hong Kong with mainland China. The white paper proclaimed that all
Hong Kong administrators, including “judges of
the courts at different levels and other judicial personnel,” must meet the political requirements of
“loving the country.” This was seen by many in
Hong Kong as an effort to rein in the independence
of the judiciary.
The next day, the Hong Kong Bar Association
issued a press release objecting to the white paper,
stating that members of the Hong Kong judiciary
Four accounting firms that same day placed a joint advertisement in Hong Kong newspapers, warning that plans for a mass
sit-in demonstration in late September in Hong Kong’s business district, known as Central, would hurt business: “We
worry that multinational companies and investors might consider moving their regional headquarters from Hong Kong, or
even remove their businesses, in the long term shaking Hong
Kong from its position as an international financial and commercial center.”
...lawyers are the vanguard of a democratic
society that respects individual rights
and liberties.
The planned sit-in demonstration, known as
Occupy Central With Love & Peace, was led by a
Hong Kong University law professor. Its purpose
was to peacefully protest and demonstrate against
efforts to extend mainland China’s control over
Hong Kong through election procedures preventing
Hong Kong residents from nominating and directly
electing their chief executive.
On September 28, 2014, thousands of Hong
Kong residents gathered in Central for the planned
demonstration. The demonstration was not well
received, as police responded by attempting to disperse the crowds with pepper spray and tear gas.
Demonstrators attempted to shield themselves
from this chemical onslaught with umbrellas, leading some to dub the protests the “Umbrella
are not to be regarded as part of ‘Hong Kong’s
Revolution.”
administrators’ or part of the governance team
John P. McEntee
Once again, the Hong Kong Bar Association
upon whom a political requirement is imposed. Any
chose not to remain silent, issuing a press release
erroneous public categorization of Judges and judicial officers
on September 29 that “deplore[d] and condemn[ed] the excesas ‘administrators’ or official exhortation for them to carry out
sive and disproportionate use of force by the Hong Kong
any political mission or task will send the wrong message to
Police” against unarmed demonstrators. The release went on
the people of Hong Kong, people on the Mainland and the wider
to state “that there was plainly no justification to commence
international community that Courts here are part of the
the use of CS [tear] gas against peaceful demonstrators, let
machinery of the Government and sing with it.
alone repeated, systemic, indiscriminate and excessive use of
On June 27, 2014, hundreds of lawyers, including eight for- CS gas.”
mer heads of the Hong Kong Bar Association, marched from
As the world watches these event unfold, we can all hope
Hong Kong’s High Court to the Court of Final Appeal in that the protests will remain peaceful and will accomplish
protest over this effort, demanding that this patriotism the goal of retaining basic democratic rights. As lawyers, we
requirement be stricken. An organizer of the march explained can take pride in being members of a profession whose focus
to the New York Times that “[w]e want to tell the central peo- is not limited to the preservation of economic interests, but
ple’s government and the international community that we instead takes risks to preserve and promote individual liberwould never compromise on Hong Kong’s legal system and the ties and the rule of law. The Hong Kong Bar Association
rule of law.”
serves as a shining example to the world of what a bar assoIn what some might regard as a contrast in focus, the Big ciation can and should be.
FROM THE
PRESIDENT
ASSOCIATION NEWS
Theodore Roosevelt
American Inn of Court 2014
Installation of Officers
Photos by Hector Herrera
(l-r) Hon. Leonard Austin, Appellate Division Second
Judicial Department, Paul Millus, President of the
Theodore Roosevelt American Inn of Court, Hon.
Sheila Abdus-Salam, Associate Judge of the New
York State Court of Appeals, John McEntee, NCBA
President, Steve Eisman, NCBA President Elect.
The Official Publication of the
Nassau County Bar Association
15th & West Streets
Mineola, N.Y. 11501
Phone: (516) 747-4070
Fax: (516) 747-4147
www.nassaubar.org
E-mail: [email protected]
NCBA Officers
President
John P. McEntee, Esq.
President-Elect
Steven J. Eisman, Esq.
First Vice President
Martha Krisel, Esq.
Second Vice President
Steven G. Leventhal, Esq.
Treasurer
Elena Karabatos, Esq.
Secretary
Richard D. Collins, Esq.
Executive Director
Keith J. Soressi, Esq.
Editor-In-Chief
Christopher J. DelliCarpini, Esq.
Associate Editor
Allison C. Shields, Esq.
Editor/Production Manager
Sheryl Palley-Engel
Assistant Editor
Valerie Zurblis
NCBA Director of Marketing and PR
Photographer
Hector Herrera
Focus of the Month
General/OCA
Upcoming Focus Issues
November– Education Law
December – Tax/ Commercial/
Bankruptcy Law
January 2015– Labor & Employment Law
Committee Editors
Christopher J. DelliCarpini, Esq., Chair
Allison C. Shields, Esq., Vice Chair
Rhoda Y. Andors, J.D
Deborah S. Barcham, Esq.
Gale D. Berg, Esq.
Sean E. Campbell, Esq.
Deanne Marie Caputo, Esq.
Ellin Regis Cowie, Esq.
Marc G. DeSantis, Esq.
Anthony J. Fasano, Jr., Esq.
David J. Friedman, Esq.
Nancy E. Gianakos, Esq.
Michael R. Gionesi, Esq.
Sharon Kovacs Gruer, Esq.
Adrienne Flipse Hausch, Esq.
Kristina S. Heuser, Esq.
Charles E. Holster III, Esq.
George M. Kaplan, Esq.
Kenneth J. Landau, Esq.
Michael J. Langer, Esq.
Douglas M. Lieberman, Esq.
Cheryl Y. Mallis, Esq.
Angelica Marie McKessy, Esq.
Thomas McKevitt, Esq.
Jeff H. Morgenstern, Esq.
Marian C. Rice, Esq.
Daniel W. Russo, Esq.
Michael A.H. Schoenberg, Esq.
Meryl D. Serotta, Esq.
Thomas G. Sherwood, Esq.
Christina H. Singh, Esq.
Andrij V.R. Szul, Esq.
David Torreblanca, Esq.
Eric Anthony Zeni, Esq.
Published by Long Island Business News
(631) 737-1700; Fax: (631) 737-1890
Publisher
Scott Schoen
(l-r) Michael Cardello III, Lois Carter Schlissel, Kevin Schlosser, Hon. Marilyn
Genoa, Debora Nobel, Hon. Denise Sher, Marjorie Bornes and Hon. Sheila
Abdus-Salam.
Hon. Sheila Abdus-Salam and Paul Millus, President
of the Theodore Roosevelt American Inn of Court.
The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York
State lawyers. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its
editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.
Graphic Artist
Nancy Wright
Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July
and August, by Long Island Commercial
Review, 2150 Smithtown Ave., Suite 7,
Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association.
Periodicals postage paid at Mineola, NY 11501
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Nassau Lawyer
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Matrimonial Actions and the Use of Supplemental
Needs Trusts for Individuals with Disabilities
In negotiating matrimonial settlements, it is essential that families of
individuals with disabilities are aware
of associated special needs planning
issues.
Means-Tested Government
Programs
expenses,3 the amount he or she earns
from employment (if employed), and the
amount of cash, gifts or other monthly
income he or she receives.
Medicaid is a government program
which provides medical assistance for
persons who meet income guidelines
and who have limited resources. Many
individuals with disabilities
rely on the Medicaid program
to meet their basic health
needs. Medicaid is also used
by many Americans as they
age in order to fund community based nursing care
and/or nursing home care.
Children and adults with
disabilities often rely on
means-tested federal and
state government programs
for health and financial
benefits. Means-Tested Government Programs have limits on the income and
resources that a qualifying
individual can have. In New
Classic Child Support
York, such programs include
Arrangements and meanssupplemental security intested Benefits Programs
come (SSI)1 and Medicaid.
Elana M. Simha
Divorce settlements usuSSI provides a monthly
ally delineate specific finanstipend to an individual with
disabilities who has limited countable cial responsibilities of each party
resources and monthly income. The towards the children’s care and schoolstipend is intended for use towards ing, either through the age of majority
basic needs including food and shelter. and/or through college. Often, the nonA child under eighteen will only qualify custodial parent’s responsibility takes
for SSI benefits if his or her parents’ the form of a monthly child support paycountable resources and monthly ment. In many cases it is also advisable
income are below the state’s eligibility for the settlement to require that each
requirement.2 Upon turning eighteen, a party pay for a life insurance policy on
child with disabilities is viewed inde- the life of the other, to ensure that there
pendently for SSI purposes. As a result, will be enough money to support the
the amount of his or her SSI stipend children in the event of the untimely
will depend on individual factors, death of one of the parties. When the
including the amount he or she needs divorcing couple has a child with special
for monthly rental and household needs, the divorce settlement often rec-
eligible for SSI. O’s mother does not
ognizes that the child will require supprovide any child support. O receives
port into adulthood and makes provi$744 in SSI monthly, currently the
sions for support beyond the typical age
highest amount available to an indiof majority.
vidual living in the household of
According to Social Security regulaanother in New York.
tions,4 two-thirds of child support payEx. 2: Same facts as in Ex. 1,
ments for a child under 18 are considexcept here, O’s mother pays $300 of
ered income to the child. Once a child
child support monthly. Twowith disabilities turns 18, one
thirds of that payment, or
hundred percent of child sup$200, is countable for SSI
port payments are considered
purposes and offsets the SSI
countable income of the child.
payment dollar-for dollar.
Therefore, child support payAs a result, instead of
ments from the non-custodial
receiving a monthly SSI
parent that are made directly
check for $744, O’s monthly
to the custodial spouse are
payment is reduced to $544.
includable when calculating
The damage of outright
the child’s income for purposchild support payments is
es of SSI and Medicaid eligimagnified when a child with
bility. Additionally, since the
disabilities turns 18:
purpose of child support is for
Mordecai Y.
Ex. 3: M is an 18 year old
food, shelter and other basic
Simha
with developmental disabilneeds of the child, and the
ities. She lives at home with
purpose of SSI is for the same
her mother and attends a day habiliitems, Social Security will reduce a
tation program in the local communichild’s SSI payments by the amount of
ty. There is a rental agreement so
child support dollar-for-dollar. In that
that M contributes monthly towards
way, child support payments may have
household expenses. She has no
the unintended consequence of denying
income from employment, does not
or reducing the child with disabilities’
have reportable cash or gifts and her
access to means-tested benefits.
mother receives no child support. In
Consider the following two examples
this case, M’s income and resources
pertaining to a child with disabilities
make her eligible for SSI and
who is under the age of 18:
Medicaid. She receives $744 in SSI
Ex. 1: O is a 10 year old with
monthly, currently the highest
severe Autism. He lives at home with
his father. O’s father’s income and
See NEEDS TRUSTS, Page 24
resources are low enough to make O
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Judiciary Night
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mortgagee refuses to offer loan modifications until the houses are repaired.
This results in a standstill that has
frustrated both sides in the foreclosure
proceedings and promoted inefficiencies in the courts.”
Leventhal pledged to continue
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Super Storm Sandy, we have assisted
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“However, despite these efforts and
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struggle with myriad challenges,
including private insurance denials,
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placed on their families.”
“It appears now that the need will
continue indefinitely, and so will our
free clinics. However, many difficult
legal problems are unresolvable
through clinic consultations. Legal
service providers are essential partners
in the relief process, working to meet
the enormous need, and handling litigation for eligible clients, among other
things.”
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Analysis
the power to
impose monet
1. The Hono
ary sanctions and conclu
rable Jose
1. 28 U.S.C. §
Cabranes
A.
636(b)(1)(A) (2002).
tions “very strongded that all indica2. See, e.g., Alpern
In his Opinio
v. Lieb, 1993 U.S.
LEXIS 3229
clusion that the ly support” the conDist.
(N.D.
was persuaded n, Judge Cabranes
Act empowers
F2 Am., Inc., 902 Ill. 1993); Maisonville v.
by the decisio
trate judges
magisreasoning of
ns and
to impose sancti
DiPonio Constru F.2d 746 (9th Cir. 1990);
the
except in the
ction Co., Inc.,
ons,
RG
of Bricklayers,
Circuits, which Sixth and Seventh
v. Int’l Union
form of sanctio
AR.O
2010 U.S. Dist.
have
dispos
ns
AUB
that
held
S
* (E.D. Mich.
LEXIS 62047,
e
of
S
that decia claim or defens 19
sions on Rule
June 23, 2010);
.NA
11
e.
McGuffin v.
Baumhaft, 2010
While Judge
WWW
tive of a claim motions are disposiU.S. Dist. LEXIS
Leval
. 1 I
Mich.
O
agreed
59497 (E.D.
and
N
June
Judge Cabran
I
are therefore
16, 2010).
with
properly resolve
es
. 60
3. Kiobel v. Millson
VOL
d by an order not
are case dispos that sanctions that
et al., 592 F.3d
10 I
2010).
magist
0
78
of
itive
(2d Cir.
2
rate
a
require de novo
judge.12
ER
review, he stated
4. See Kiobel v.
EMB
In reaching his
that a Rule 11
Royal Dutch Petroleu
SEPT
F. Supp. 2d 457
tion does not dismis
conclusion, Judge
sancm Co., 456
Cabranes reason
(S.D.N.Y. 2006).
s a suit or preven
5. See Kiobel v.
ed first that a
a claim or
Royal Dutch Petroleu
t
motion for sanctio
Rule
defens e from
U.S. Dist. LEXIS
m Co., 2004
advanced.20 As
ns, which gives 11
28812 *29, 43
to proceedings
6. Kiobel, 592
(S.D.N.Y. 2004).
such, Judge Levalbeing
rise
ough
F.3d at 80.
separate and
cluded that
con7. Id.
e “[a]lthd the
from the underl
distinc
a
magist
aus
t
rate judge is
authorized by
8. Kiobel, 2004
ent becl overstate
involves parties ying action s and
U.S. Dist. LEXIS
law to impose
the
statem
34.
28812, at 32distinct from
by way of
Order, Rule 11
third ants’ counse t to benefitover- the underl
those in
sanctions withou
9. Id. at *34.
ief
sen
consent of the
t the
defend t of money ount of the not al equivaying action, is the functiona.4 Ch ’
10. See Id. at
parties.21
Nigeri
iffs
*37.
3. The Honor
amoun es, the am all…and did the claim.13 lent of an indepe ndent
11. Kiobel, 592
ent in erred plaint caable Chief Judge
of
ess
F.3d 78.
As such, when
elopm
ref
tifi
Dennis Jacob
12. Id. at 85; see
[w]itn ent was sm the nature man mines
and dev ba Wood for class cer
s
also Bennett v.
B.
whether a moneta court deterge Pit
Kim
General Caster
Service of N. Gordon
Chief Judge Jacobs
statem y change
Henry ary
, magis
Judge
Co., 976 F.2d
trate Jud
iall 9
c) motionte Judge
declined to join
nda
(6th Cir. 1992)
iffs one g appropriate, the “claim” has award is
gis
ter
995, 998
system e in the
23(
the
me
int
Ma
ma
rt
opinion
le
(“nothin
om
tra
pla
been disof either Judge
sin posed of
Ru
g in the Act expressl cou
ent.”
ly vests magistra
Magis
trate
and rec
federa a critical rol Federal
Cabranes
or Judge Leval
statem ever, award eys’ fees ariRulejudgm and nothing but the entry
tion to for a report 2004, Magis t the
to enter orders te judges with jurisdiction
e
y
In our
and
of a
l
ent, or its functio
imposing Rule
n
the issue – wheth instead stated that
ges pla
tice. Th
did, how their attorn successfu
U.S.C.
nal equivalent,
d tha
tions”); Alpern
11 sancrch 31,
Pitma
’
remains. 14 Second
of
lly
v.
trate judtration of jus (“Act”), 28
On Ma recommende pla int iffs
have the author er magistrate judges
third
Cir. 1994) (“the Lieb, 38 F.3d 933, 936 (7th
, Judge Cabran
partia
ges to:
n
tion.
reason ed that
eal ed
power to award
their 10
adminis te Judge Actgistrate jud
den y
Pitma
like the power
sanctions,
a narrow statut es
sanctions themseity to order Rule 11
from
n
eys app except
tra
.
to
l
Judge t Co urt
s ma
to
ory
lves, or only to
ion – allowi
Magis
the hands of the award damages, belongs in
motion ts’ att orn n’s “Opinio
pretria
5
horize
ed
11
a
.
tric
.
recomm
make
district
ect
aut
ng
any
ma
,
dan
Dis
magis trate
judge.”)
endation of Rule
13. Kiobel, 592
judges to summa
Pit
ort
motion iffs obj
§ 636
court,
t Co urt
De fen
ermine
F.3d at 86-87.
11 sancJudge
tions to the distric
rily punish acts
on’s Repand
14. Id. at 87.
Dis tric
err
Pla int
ore the
ef,
and det
crimin
trate
Pitma
of
Magis der ” to the al “clearly rd of al conduct that occur
[H]ear pending bef nctive reli
15. See 28 U.S.C.
that divides the t court – is an issue
tion, an
trate
magist
inju
nti
§ 636(e)(2); Kiobel,
Magis commenda d
district courts
87-88.
and Or a defere law” standa1)(A), rate’s presence – to the in the
matter a motion for
592 F.3d at
the Second Circui
within
file
pleadprincip
to
ecing
general
and Reant s
16. Kiobel, 592
t and the Circui
trary .C. § 636(b)( trate le that magistrate judges
Apply
except gment on the judgse obj
Courts thems
F.3d at 89.
t
or con
not
17. Id. at 91 (the
def end
to tho pos itio n,
elves. 22 Chief
may
mary
neous under 28 U.S rmed Magis dispose of claims when
sh
for jud
Act “broadly empowe
ition
Jacobs went on
Judge
trate judges to
for sum
acting
or qua areferral alread
affi
Oppos In the Op stated:
to state that he
‘hear and determi rs magisreview
ings, to dismiss
Wood er.
y exists and there by
defer the issue
would
fter
pretrial matter
ne’ any
orneys rned
inform
Judge
reabasis
no
tio ns.
att
to
Ord
designat
was
ief
Congre
the
s’
to
lea
23
ed
Ch
n’s
expand
ment, ictment or endant,
ss.
to them by the
ant
e
district court,
this exception
orneys
Pitma
with
’ Orderl action.15
defend w we hav ain tiff s’]
by
fied list of matters. the exception of a speciJudge dants’ att ge Woodsjudicia
an ind de by the defce in a
ge
Signif
[pl
“No
icance
Jud
As
of
fen
are
for
(1)
ma
Jud
te
the
Judge
den
De
matters
falling within
tra
ief
evi
tion
ses
a Cabranes conclu
sev en
this excepted
It follows from
Magis ingly
miss or
ed Ch
press
ded accordissuethat
list,
wit nes testimotha t
of the magistra
appeal grounds: (1) horized to
to sup l case, to disnce of a
te judge’s powers the extent
a magis trate
fied
er
decision in Kiobelthe Second Circuit’s
their
evidence and
no
is to take
ide nti
judge
an Ordized by
submit
that there is
on two was not aut such asauthor
crimina maintena
paid for re can be
law only to recomm is
bindin g preced
ent
the district court…[ recommendations to
no
miss for
n
mit
are
being
not abs
and] such addition
ision,
ns,
impose
end,
“[T]he
Pitma
to per ion, to dis im upon
duties as are
nesses
the , sanctions absent
Circuit as to ent in the Second
al
not
itive decle 11 sanctio; sent
act
ny;” (2) t the wit t [plainthe conwhether a Magist
and (2)
of the
Constitution and inconsistent with the
dispos
class to state a cla granted,
tha
Judge has the
ns onparties.16
ng Ru
be
parties ctio
ony tha
doubt
(citing 28 U.S.C. laws of the United States”)
power under the rate
imposi sent of the
failure
can be dismiss
san 2. The
testim knows to
Honorable Pierre
§ 636[b][1][B]).
impose sanctio
t
relief
18. See Federal
ntified
l
le 11
Leval
Cole giving
ns. Consequently,Act to
Judge
Courts Improve
w tha
the con
which involuntarily
of Ru tements ide
C.
counse
Leval
kno
ned
yn
such
s’]
ment
found
2000,
tion
until
ril
tai
Act of
time
]e
tiff
Pub. L. 106-518
that the
as Congress or
sus ers magist
empow
Kathr
“[W
imposi is of the sta not be
and to
§ 202 (2000) (address
1
and Ap
ing “Magistrate
the United
States Suprem
rate judges to Act
ion.
ce sup
ld
and (3)ry 29, 2004 l] wired
bas
Judge Contemp
during
and
den
”
e
cou
Court
hear
determ
the
an act
e
Authorit
se;
evi
ses
t
addres
iffs
ine
nse
rua
fal
y”).
lap
a wide range
issue or resolve
ses this
ord ters, s.11 Th
int
e led
gs’ cou
19. Kiobel, 592
for the
en Feb
asion,
of matby pla e of the rec tem
ent saveJud
forgethose matter
F.3d at 98.
betwe 4, [plaintiff Republic
On occ al phase havctions by ma of
ambig uity, the s the Act’s inherent
the
sta
20.
aus
ief
Id.
s
in
at
expres
except
97-98;
On
6
se
le
Ch ed within
bec
-tri
san
analys is of
see also Lawrenc
2, 200 to the Ben nesses.”
Cabranes and
ersed
g tho
Judge s
second the Act.17 Moreo sly
e
Richman Sec.
the pre osition of Federal Ru
intiffs
5
Judge
Corp., 467 F.Supp.v. Wilder
Leval – albeit
por tin Circuit rev upo
n theLeval
ver,
imp
er
se
s, pla le 11
$15,19 of the wit
232-33 (D. Conn.
provides a roadm
2d 228,
dicta –
to the judges und 2
upon the amend
r, chorelied
tement
Second Order solely ments
Court
Found. v. Aerofloa2006); Laser Med. Research
howeveto the
benefit these sta imposing Ru these
Actt made by Congre
and judges alike, ap for practitioners,
istrate cedure 11. ited States pubt Soviet Airlines
od’s
oted firs
Panel, 2000,
t
Wo
is of an order
e
t
Dist.
-mo
ss
on
which
,
tha
Pro
in
1994
LEXIS
each
Un
Th
cui
bas
il
U.S.
pub r vested
now
15210 *2 (S.D.N.Y
side of this
.
issue.
Civ
for
tead furthe
ground tiary suply, the
ond Cir
Magee v. Paul
magistrate
. 1994);
sed ,
judges
ground ignore the but
inswith
e
Revere
moved ns on the
Recent for the Sec t add res
range
eviden
osed
ws.a Th
of contempt powF.R.D. 33, 37 (E.D.N.YLife Ins. Co., 178
ls
tha
not to for appeal ers.
magis
g vie
otJudgemoLeval
sanctio ents had no orneys oppt the
. 1998).
tin18
21. See also Maisonv
of Appeaa dec isio n , whether
the
viewed this
att
Kathryn C.
ground their conflic
ille v. F2 Am.
indicat
ity to
as
ive of the
747-48 (9th Cir.
ges,
statem fendants’ g that tha ord
Cole,
lysis of
Inc., 902 F.2d
lish ed other things the author es, or,
Honorable Richard a former clerk to the
De
trate judtrictfact that Congress
lished Circuit’s ana
intend
22. Kiobel, 592 1990).
arguin ported by rec
port.
C. Wesley of
have
magised to allow
mselv
F.3d
among
tion,
Circuit Court
the Second
23. Id. (“I respectf at 106-07.
Second – whether nt to a dis d tomagistrate judges
judges sanctions the y to make a
of Appeals, is
the moents were sup
ully
a commercial
igation associa
trate
dated
needs to be untied suggest that this knot
le 11
lited issue ing pursua authorizemenCourt
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wh
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ref
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1320 RXR Plaza
Factual ve class actiont of New York
att orn
for ma
tra te
e, 28
Uniondale, NY 11556
Ma gis san cti ons
A putati thern Distric
t Statut ene
Sou
def
en Tor
im pos
in the nt to the Ali g out of ation
sin
pursua § 1350, ari in oil explor
©2010 Long Island
ement
U.S.C.
Business News,
involv
ts
all rights reserved
dan
Rule 11
impose
dges to troleum Co.
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e
at
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10
Banking/B
ankruptcy
Law
I VO
L
Focus
. 59
I NO
.
11 I
WWW
.NA
SSA
UBA
R.OR
Bank
employ ruptcy law vs.
ment dis
crimina
tion
Debt sh
sole reas ould never be
the
on be
an emplo hind treatmen
t
yee or
The ong
applica of
oing eco
signif
nt
G
Emplo
late Se yers must
be
cti
applican on 525 as cognizan
t that
to em
ts wh
they do
icant
or wh
nomic
plo
o have
o ind
increa
not vio
vidua
filed for yees and,
se in crisis has cau
ls wh
Emplo icate that
bankru perhaps,
the nu
o
Long
sed a
the
yee
mb
Island, are filing
Section s Who Ha y intend to ptcy protec job
for ban er of indiacross
thr
ve De
tion
525 is
oug
the na
kruptc
clared file.
impli
a final
tion. Mo hout New
y on
stance
Bankrup
s. Su cated in a
tcy
sough effort to esc re and mo York, and
ppose
Presiden
variet
t
re peo
, for
ape cru
ple
availin to obtain a
instan y of circum
accoun t of a com
financia shing debt, , in
ce,
g thems
tant em
pany
that
Bankrup
have
filed
l “fresh
elves
learns
the
for ba ployed by
attach tcy Code of the protec start” by
Presid
the com that an
ing the
to sto
tions
ent ma nkruptcy
proper
of the
ir ass
in all
y exp
protec pany has
ets or p creditors
ty.
ow
eri
forecl
from
ued acc ing that ind ence some tion. The
Since
osing
trepid
indivi
on the
protec
Howe ess to corpor ividual to
ation
duals
ir
tio
ver
have
the Ba n are alread who seek
contin
would , under Se ate record
nkrup
s
ban
be pre
ction
and fun kruptc
taking
tcy Co y financially
nating
clu
525
y
de bar
burde
the deb ded from dem the com ds.
and job certain act
her ban
pa
Stuart
tor sol
ions agas employer ned,
kru
ely on oting or ter ny
s
“fresh applicants
Gordo I.
accoun
mi
For exa ptcy.
which inst bankru from
start.”
n
t of his mp
may be
pt em
(Bank
In pa
or
ployee
detrim
r. W.D le, in In re
Bankrup rticular,
s
.Ar
ental
Hi
Sec
k. 198
cks 65
tio
nated
to the
6), the
B.R. 980
agains n 525 in hol
ir
person tcy Code, Section 52
court
positio
t
11
ding tha
s
relied
n havin a bank tel
tion fro who have sou U.S.C. § 5 of the
on
525
g no cus ler by tra t a bank dis
er or m being ter ght bankru , protects
cri
file
nsf
tom
mid for
erring
minated
otherw
ptcy pro
bankru er contact
her to
respec
bank
after
ptcy un
a
t to theise discrimi by their em tecattem
the tel
may
der Ch
pted to
bankru
ler
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Nassau Lawyer
Codifying ADR: Referencing
ADR in Letters of Engagement
On July 9, 2014, John W.
Other than requiring a citation to
McConnell, Counsel to Chief Admini- the Unified Court System’s website’s
strative Judge A. Gail Prudenti, for- ADR page, at a minimum, the prowarded a recommendation by the New posed amendment does not specify
York City Bar Association to “All what language the practitioner should
Interested Parties,” inviting commen- employ to refer to the ADR page.
tary on a proposed amendment to 22 However, it provides the following
NYCRR Part 1215 pertaining to sample language:
Letters of Engagement. The letter
To the extent that the representation
by Chris Stern Hyman, Esq.,
described herein involves or
Chair of the Alternative
may involve litigation, you
Dispute Resolution (“ADR”)
should be aware of The
Committee of the New York
New York State Unified
City Bar Association, recomCourt System’s description of
mends that Letters of
Alternative Dispute ResoEngagement inform clients
lution options, including
about ADR programs availmediation and arbitration,
able on the Unified Court
which can be found on its
System’s website.
website at http://www.
Currently, attorneys’ Letters
nycourts.gov/ipladr1index.
of Engagement must explain:
shtml, or a copy of which will
(1) the scope of legal services
be provided to you upon
to be provided and (2) the Ellin Regis Cowie request.3
attorney’s fees to be charged,
Mr. Hyman suggests that
expenses and billing practices, and, “the Unified Court System’s own webwhere applicable, the client’s right site is testimony, at a minimum, to the
to arbitrate fee disputes under Part belief that ADR programs are appro137 of the Rules of the Chief priate tools, under the right circumAdministrator.1
stances, for a judicial system that is
The proposed amendment would obliged to address a huge volume and
add a third provision to Section 1215.1, wide panoply of disputes.” He points
requiring that where the representa- out that “Part 1215 already references
tion involves an “actual or potential the potential, under Part 137, for
litigation matter,” the Letter of resolving a fee dispute through ADR.”
Engagement must include a “citation Counsel to the Chief Administrative
or other reference to the explanation of Judge set a September 8, 2014 deadAlternative Dispute Resolution options line for submissions of comments
on the New York State Unified Court
See ADR, Page 17
System’s website.”2
n
October 2014
SINCE 1980
MEDICAL MALPRACTICE & PERSONAL INJURY LAW
ask4sam.com • 877-ASK4SAM
Standing: Robert A. Miklos, Heather E. Myers, Daniel P. Miklos, Danielle M.
Hansen, Anthony E. Colantonio, Olga Siamionava, John G. Papadopoulos
Seated: Joseph P. Awad, Joseph Miklos, Joseph C. Muzio
A Primer for Service of Process
Upon Foreign Entities Under FRCP 4
The world is not as large as it once
Service By Any Internationally
was. Long gone are the days when the
Agreed
Means – The Hague Service
once great divide of our globe’s oceans
Convention
required businesses to transact only
with local, or even just domestic, entiThe phrase “service by internationalties.
ly agreed means” in Rule 4 immediateToday’s global economy offers many ly evokes consideration of the nebulous
advantages, but it also creates unantic- “Hague Convention.” But, what is the
ipated legal problems when the inter- “Hague Convention,” and is it applicanational business deal fails
ble to your foreign defendant
and litigation in the United
and, if so, how does it work?
States is necessary.
In 1893, several countries
One of the first problems
participated in what is now
encountered by an attorney
called the Hague Conference
starting a litigation against a
on Private International Law
foreign business is how to
with the goal of unifying
serve process upon that busiinternational civil law.3
ness so that the jurisdiction
Since then, the Hague
requirements of a U.S. court’s
Conference has generated 39
and, maybe more importantdifferent
multilateral
ly, that the requirements of
treaties, which are called
the foreign court for enforce“Hague
Conventions,”
ment of the U.S. court’s judgMichael A.H.
addressing a wide variety of
ment in the foreign nation
civil litigation topics, includSchoenberg
may be satisfied.
ing
the
International
The starting point for addressing Administration of the Estates of
this issue in the federal courts is Rule 4 Deceased Persons, the Recognition of
of Federal Rules of Civil Procedure, Divorces and Legal Separations, and
which provides that “unless federal law matters concerning the Taking of
provides otherwise, an individual ... Evidence
Abroad
in
Civil
or
may be served at a place not within any Commercial Matters.
judicial district of the United States” by
The most recognized convention for
one of three ways: (i) internationally service of process abroad, the Hague
agreed means; (ii) a method reasonably Convention on the Service Abroad of
calculated to give notice; and (iii) other Judicial and Extrajudicial Documents,
means not prohibited by international is specifically mentioned in Rule 4.4 Not
agreement, as the court orders.1 This every country is a signatory to the
article offers a primer on effectuating Service Convention, though. At last
service using the more common first
See SERVICE, Page 26
two methods of service.2
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ATTORNEY ADVERTISING
n
7
8
n
October 2014
n
Nassau Lawyer
IN BRIEF
Member Activities
Probate); and Joel R. Weiss (Criminal
Defense: White Collar). Louis A.
The Nassau Lawyer welcomes submisScarcella (Bankruptcy) was named to
sions to the IN BRIEF column announcing
the list while he was a partner at Farrell
news, events and recent accomplishments
Fritz.
He has since been selected to
of its members. Due to space limitations,
serve as a United State Bankruptcy
submissions may be edited for length and
Court Judge for the Eastern District of
content.
New York. The following attorneys were
The
Court
Officers
named New York Metro
Benevolent Association of
Rising
Stars:
Kathryn
Nassau County Dinner Dance
Carney Cole, Heather P.
will take place at the Chateau
Harrison, Franklin C.
Briand on October 16th. The
McRoberts, Michael A.H.
Honorable
Tammy
S.
Schoenberg and Aaron E.
Robbins, Nassau County
Zerykier
(Business
Acting
Supreme
Court
Litigation);
Jaclene
Justice, will be honored in the
D’Agostino, Robert M.
category of Fidelis Juri, and
Harper and Beth A.
Joseph Carbone, Jr. will be
Rubenstein (Estate & Trust
honored in the category of
Litigation); and Katherine
Jurisperitus.
A. Heptig (Business/CorBarbara Gervase, Faith Hon. Stephen L. porate).
Getz Rousso and Rita
Joel M. Greenberg of
Ukeiley
Stein will be speaking at a
The Greenberg, Dresevic,
free seminar on October 16th
Iwrey, Kalmowitz, Lebow &
at Nassau Community College on Pendleton Law Group, a division of The
“Legal Issues Affecting Children.” Health Law Partners, P.C., was recogCheryl Bartow, President of the nized as a New York metropolitan area
Women’s Bar Association of Nassau Super Lawyer for the fourth consecuCounty, will moderate the panel discus- tive year. Mr. Greenberg is also an
sion.
adjunct professor of health law at the
The following Farrell Fritz attorneys State University of New York’s College
were selected to the 2014 New York at Old Westbury.
Super Lawyers list: John P. McEntee
Roy W. Breitenbach, a partner and
and James M. Wicks (Business director at Garfunkel Wild, P.C., has
Litigation); Ted A. Berkowitz and been selected by Long Island Business
Patrick T. Collins (Bankruptcy); News to the “Around 50” Class of 2014.
John J. Barnosky, Ilene Sherwyn Mr. Breitenbach, who is also Chair of
Cooper, John R. Morken (Estate & the firm’s Antitrust Practice Group, as
Trust Litigation); Charlotte A. Biblow well as co-Chair of the Litigation &
(Environmental); Eric M. Kramer and Arbitration Group and a member of the
Patricia C. Marcin (Estate & Employment Law Group, earned his
Juris Doctor, cum laude, from St. John’s
Law School. He is a frequent lecturer
and has written numerous professional
articles in the New York Law Journal,
Journal of the American College of
Radiology and Connecticut Law
Tribune.
John H. Gionis, M. Allan Hyman,
Jason M. Kurland, Jaspreet S.
Mayall, Thomas J. McNamara,
Douglas E. Rowe, Howard M. Stein,
and Paul B. Sweeney, all partners at
Certilman Balin, have been named to
the 2014 New York Super Lawyers List.
Hylan B. Fenster, an associate, was
named to the 2014 New York Metro
Rising Stars List.
Leslie H. Tayne of the Tayne Law
Group, P.C. was recently appointed
Jewish Lawyers Association of Nassau
County Treasurer for the Association’s
2014-2015 term. Ms. Tayne, who concentrates her practice in debt management and resolution and bankruptcy
alternatives, is vice-chair for the Bar
Association’s Attorney Accountant
Committee and a volunteer puppy raiser with the Guide Dog Foundation of
Smithtown.
Steven Silverberg of the Law
Office of Stephen J. Silverberg, PC has
been selected by his peers for inclusion
in the 2015 Best Lawyers in America©
in the practice area of Elder Law. Mr.
Silverberg is past president of the
National Academy of Elder Law
Attorneys and was awarded the credential of NAELA Fellow.
Ilene Sherwyn Cooper of Farrell
Fritz was recently appointed to the New
York Bar Foundation’s Planned Giving
Task Force. Ms. Cooper was also recently appointed co-chair of the Fellows of
the New York Bar Foundation for the
10th Judicial District. She concentrates
her practice in estate litigation and is a
contributor to the firm’s New York
Trusts & Estates Litigation blog. Ms.
Cooper earned her Juris Doctor Hofstra
University School of Law.
Yvonne Cort of Melville-based
Tenenbaum Law, P.C. recently presented a speech at the New York City Bar
Association on the topic of updates and
developments in New York State residency audits. Karen Tenenbaum, Ms.
Cort, Christopher Bourell and Brad
Polizzano, also of the firm, presented a
speech for the National Conference of
CPA Practitioners, Nassau/Suffolk
Chapter on New York State Voluntary
Disclosure, and IRS and New York
State Offers in Compromise. Mr.
Bourell also spoke at the 6th Annual
NYU Tax Controversy Forum regarding
Collection Due Process Hearings.
Penny B. Kassel of the Law Offices
of Penny Kassel, P.C. was named a
member of the Business Advisory Board
of the Vincent Smith School in Port
Washington. She also recently became a
member of the Ethics Committee of
South Nassau Communities Hospital.
Paul F. Millus, of counsel to Meyer,
Suozzi, English & Klein, P.C. practicing
in the Litigation and Employment Law
Department, has been sworn in as
President of the Theodore Roosevelt
American Inn of Court.
New Partners, Of Counsel
and Associates
Jared A. Kasschau joined Harris
Beach PLLC as a partner in the
Uniondale office where he concentrates
on commercial litigation, civil rights litigation and appellate practice. Mr.
Kasschau is a former assistant district
attorney with the Bronx County
See IN BRIEF, Page 10
COMMITTEE REPORTS
Labor & Employment Law
Meeting Date 9/9/14
Chair: Jeffrey Schlossberg
upcoming meeting in October 2014.
The committee also set this year’s agenda, which includes participation in the
Nassau County Veterans Service
Agency “Winter Stand Down” on
November 25, 2014, at the Freeport
Armory, as well as participation with
the Law Clinic at Hofstra University
School of Law on November
15, 2014.
Guest speaker Irv Miljoner, District
Director, U.S. Department of Labor,
Wage & Hour Division, Long Island
District Office, presented an
informative lecture entitled:
“A Conversation with the
Municipal Law
Wage and Hour District
Director.” Topics included the
Meeting Date: 9/17/14
growing proliferation of wage
Chairs: Liora Ben-Sorek,
cases and the agency’s hanLisa Cairo
dling of these cases with a
focus on resolution, the growThe committee welcomed
ing complaint backlog, the
guest
speaker
John
agency’s target of certain
Bruckbauer,
Deputy
industries such as restauCommissioner of Nassau
rants and other “low wage”
County’s Office of Emergency
industries, the collection of Michael J. Langer Management, who delivered
wages payable by the
an informative presentation
employer, and the applicabilon the topic of emergency
ity of liquidated damages and
preparedness. Committee members
penalties.
who missed the presentation but would
like to review the distributed materials
Veterans and Military Law
are urged to contact the committee
Meeting Date: 9/16/14
chairs.
Chair: Edward Cunningham
Discussions were held regarding the
third anniversary of the Nassau
County Veterans Treatment Court, and
Nassau County District Court Judge
Terence P. Murphy, who presides in
that part, will be invited to attend the
Michael J. Langer, an associate in the Law
Offices of Kenneth J. Weinstein, is a former
law clerk in the United States Court of
Appeals for the Second Circuit, and a former
Deputy County Attorney in the Office of the
Nassau County Attorney. Mr. Langer's practice focuses on matrimonial and family law,
criminal defense and general civil litigation.
Nassau Lawyer
The Change from
Cash to Accrual
YOUNG LAWYER
How Would It Impact Your Firm and Partners?
By Marc Ausfresser and John Fitzgerald
on additional debt, which, once again,
calls for a new banking arrangement.
Recent congressional proposals could
have a major impact on how many larg- Q. Will we need to amend our parter law firms report their taxable income nership agreement?
for U.S. federal income tax purposes. A. Most likely, you will need to make
Under the proposals, law
changes that address both
firms with revenues of more
the transition period from
than $10,000,000 would be
cash to accrual as well as
required to change from cash
how you will do business in
to the accrual method of
the new environment. Since
accounting.
this will be a fundamental
John Fitzgerald, Berdon
change, it is prudent to build
LLP audit partner and Chair
in time to discuss, negotiate,
of Law Firm Services, and
and agree upon the amendattorney and tax principal
ments. Among the areas you
Marc Ausfresser, answer
will need to address in the
questions that address the
partnership agreement are
significant consequences law
income recognition, distribufirms and their attorneys Marc Ausfresser tions, tax payments, and
may face as a result of these
rules for partners joining,
proposals.
departing, and retiring from the firm.
Q. Where do the proposals stand?
A. There are two proposals sitting on
the table: The Baucus proposal –
Section 51 of a draft Senate bill, and the
Camp proposal – Section 3301 of the
House Ways & Means Committee’s Tax
Reform Act of 2014. Both the ABA and
the AICPA have expressed strong opposition to each on a number of fronts,
among them:
• It further complicates tax law.
• Compliance costs would rise.
• Firms would be required to pay
taxes on income not yet received.
• Economic distortions would adversely affect firms currently using the
cash method of accounting.
Q. If the proposals are enacted,
what will be the tax consequences?
A. The consequences would be substantial for both firms and individual partners. The firm’s taxable income would
be accelerated. Accounts receivable
(A/R) and work in progress would
become reportable for U.S. federal tax
purposes. To temper this, tax law
allows for an adjustment of this income
to spread it over a four-year period.
Partners would be taxed on their
allocable share of the accelerated
income at their individual tax rate. For
example, if a New York State resident
partner is allocated an additional
$125,000 of income, he will be required
to make a $60,000 tax payment before
the cash has been collected.
Q. What are our options for financing these new obligations?
A. Your options will be determined by
your firm culture and your available
financial resources. Consider the following:
• Direct Payment by the Partner.
This assumes that the partner has the
personal reserves to meet these obligations. This could be a serious problem
for younger members of the firm.
• Payment by the Partner with Firm
Assistance. The firm would need to
leverage its relationship with its
bank(s) to arrange a loan program for
the partners. Typically, the firm could
obtain better terms than a partner on
an individual basis. Alternatively, the
firm could make direct distributions to
the partners. This would require taking
Q. How will current partners be
affected?
A. Partners will have to be more effective in the relationships with clients as
they need to make a greater effort in
seeking timely payments from clients.
This may require further training for
many partners. Additionally, individual partners will need to make adjustments in their personal tax planning.
Q. Are there considerations for
exiting and retiring partners?
A. The change raises the possibility of
See TAX, Page 20
OF THE
n
October 2014
n
MONTH
Hillary Reinharz
By Andrea M. Brodie
The Young Lawyers Committee
(YLC) of the Nassau County Bar
Association is pleased to highlight the
achievements of Hillary Reinharz, Esq.
As an attorney with Schlissel
Ostrow Karabatos, PLLC, Ms.
Reinharz represents clients in matrimonial and family law
proceedings at the state
and appellate levels.
In 2008, Ms. Reinharz
graduated from Brandeis
University with Bachelors
in Sociology and American
Studies.
Ms. Reinharz earned
her Juris Doctor, and
a Law Certificate from
the Institute of National
Security and Counter-Terrorism, from Syracuse
University School of Law
in 2011. While at Syracuse, Ms.
Reinharz received several awards,
including: Order of Barristers Award,
Robert T. Miller Award, and Best
Advocate Award at the National Trial
Competition Regional Tournament.
Additionally, she was a member of the
winning team for the National Trial
Competition Regional Tournament and
was granted membership in the Moot
Court Honor Society.
Ms. Reinharz is admitted to practice
law in the State of New York.
She is an active and contributing
member of the Nassau County Bar
Association, specifically, the Young
Lawyers Committee and Matrimonial
Committee. She is also active in the
Nassau
County
Women’s
Bar
Association and New York State Bar
Association, where she is a member of
the Young Lawyers and Family Law
Sections. Additionally, she is an associate member of the New York Family
Law American Inn of Court and a
member of Order of Barristers.
Ms. Reinharz is also a published
author. She authored the 2012 Update:
Carrieri, LexisNexis Answer Guide New
York
Family
Court
Proceedings (2012 edition),
Ch. no. 5, “Child and
Spousal
Support”
(Matthew Bender), and coauthored “Should CourtForensic
Appointed
Custody Evaluators Be
Allowed to Destroy Their
Records before Trial?”
Family Law Review, New
York
State
Bar
Association, Winter 2014.
Ms. Reinharz is already gaining recognition by her peers
in the legal community. She received
an award as Young Lawyer of the Year
from the Nassau County Bar
Association, Matrimonial Committee
in 2014, and she received Outstanding
Service Recognition from the Pro Bono
Project and Nassau County Coalition
Against Domestic Violence in 2013.
The YLC congratulates Ms.
Reinharz on her accomplishments and
contributions to the community and
wishes her continued success in her
endeavors.
Andrea M. Brodie, Esq. is an associate at
Abrams,
Fensterman,
Fensterman,
Eisman, Formato, Ferrara & Wolf, LLP in
Lake Success and Chair of the Young
Lawyers Committee.
C O N S U LTA N T T O T H E P R O F E S S I O N A L S
Are you sure it was appraised in your client’s favor?
GET AN INDEPENDENT REVIEW
(WE CHECK THEIR NUMBERS.)
9
10
n
October 2014
n
Nassau Lawyer
IN BRIEF ...
Continued From Page 8
PRO BONO ATTORNEY OF THE MONTH
By GALE D. BERG
Terry E. Scheiner
This month, the Nassau County Bar Association
(NCBA) is pleased to honor Terry E. Scheiner as the
Pro Bono Attorney of the Month for her dedication to
the NCBA through her volunteer work with the Senior
Clinic.
Terry is an accomplished attorney who started her
career as a social worker after graduating from
Columbia University School of Social Work. She is a
New York State Licensed Master Social Worker and
was employed by various public and private agencies
for approximately ten years. Terry earned her JD from
Touro College Jacob D. Fuchsberg Law Center and was
Co-Valedictorian. During her legal career, Terry has
served on various committees at the local and state
level in the area of Elder Law, Social Services and
Health Advocacy, as well as Guardianship, Trusts and
Estates and Community Relations. She currently
serves as Vice Chairperson of the Conciliation
Committee where she arbitrates fee disputes, is a member of the Nassau County Supreme Court Part 137 fee
arbitration panel, and is a member of the Mediations
subcommittee of the Nassau County Bar Association
Grievance Committee, handling grievances by clients
against their attorneys.
For the past 17 years, she has had a solo practice in
Port Washington specializing in guardianship and senior issues. Nevertheless, Terry, since 2001, has found
the time to volunteer between four and six times a year
at the NCBA Senior Clinic where she counsels seniors
on numerous issues that they face. She is always will-
ing to assist those in need of guidance and to offer reassurance. Terry takes the time to address the concerns
of our attendees and works with them to determine
their needs and objectives.
“I went to law school because I felt I could help my
social work clients with a dual degree. Anyone that
knows me knows how much I love my work and a big
part of it is volunteering. I have been volunteering at
the NCBA Senior clinic for fourteen years and continue
to return because every once in a while you are able to
give someone information that makes a significant
impact for them, and their reaction makes my day.”
Ms. Scheiner is admitted to practice in the States of
New York and Connecticut, is a member of the New
York State Bar Association, Bar of the Federal District
Court for the Eastern District of New York, and the Bar
of the United States Supreme Court. She is an active
member of Yashar, the Judges and Lawyers of
Hadassah.
Her insight and knowledge, especially with her
social work background, continue to give peace of mind
to those less fortunate. We are proud to acknowledge
her generosity and service to the community by honoring Terry E. Scheiner as the Pro Bono Attorney of the
Month.
Gale D. Berg is Director of ProBono Attorney Activities at the
Nassau County Bar Association. Attorneys interested in volunteering at the Senior Clinic or working on the Mortgage
Foreclosure Project or have any questions can call Gale D. Berg
at the Nassau County Bar Association or e-mail her at gberg@
nassaubar.org.
District Attorney’s Office and a former
deputy village attorney for Rockville
Centre. He was selected by Super
Lawyers as a 2013 New York Metro
Rising Star. Mr. Kasschau earned his
Juris Doctor from Brooklyn Law
School.
Michael A. Leon was named partner to the law firm Robinson Brog and
was selected for the second consecutive
year in a row as a rising star in Super
Lawyers.
New Firms And Locations
Certilman Balin Adler & Hyman,
LLP has opened an office in New
Jersey, located at Park 80 West, Plaza
II, 250 Pehle Avenue, Suite 200, Saddle
Brook.
Vincent J. Russo & Associates, P.C.
has opened offices at 20 Oak Street,
Patchogue and 1421 Wantagh Avenue,
in Wantagh,
The Law Office of Daniel M. Morrin
has moved to 400 Post Avenue, Suite
402 in Westbury. The firm concentrates
its practice in Workers’ Compensation
and Social Security Disability claims.
The In Brief section is compiled by the
Honorable Stephen L. Ukeiley, Suffolk
County District Court and Acting County
Court Judge. Judge Ukeiley presides in
Suffolk County’s Human Trafficking Court
and is an adjunct professor at both the Touro
College Jacob D. Fuchsberg Law Center and
the New York Institute of Technology. He is
also the author of The Bench Guide to
Landlord & Tenant Disputes in New York.©
PLEASE E-MAIL YOUR SUBMISSIONS TO
[email protected] with subject
line: IN BRIEF
NCBA New Members
We welcome the following
new members
Attorneys
Wayne Berkowitz
Teresa K. Corrigan
Jeffrey Douglas
Brittany Renee Gurrieri
Joanne M. Hawthorne
Edward R Hopkins III
Anitra Pavlico
James D. Spithogiannis
Students
Arielle S. Comellas
Jessie A Farrell
Keith Jared Feinberg
Ian Freeman
Thomas Hoyt Friedkin II
John-Ethan Gionis
Lauren Erin Golombek
Glenn Robert Jersey III
Nina LaMonica
Jason Philip Levy
Adam M. Love
Lynn Markel
Stephon D. Martin
Katelyn M. Moloney
Kimberly Ann Oringer
Jaclyn Quiles
Ayishetu Rahaman
Katie Ann Trotta
In Memoriam
Guido Gabriele, Esq.
Nassau Lawyer
n
October 2014
Business Valuations For Matrimonial Litigation:
An Insider’s View
marital estate, however, on appeal the
Court refused to find that reversible
error occurred when deficiencies in the
In matrimonial actions it is the court record resulted from defendant’s less
that determines the valuation date for than forthcoming testimony as to his
each asset subject to equitable distribu- finances.
tion pursuant to DRL §236 (B) (4) (b):
Just as no two matrimonial matters
“As soon as practicable after
are the same, because
a matrimonial action has
results vary based on facts
been commenced, the court
particular to each situation,
shall set the date or dates
business valuations, too,
the parties shall use for the
turn on specific facts in each
valuation of each asset. The
case. Valuation is an exervaluation date or dates may
cise of the fact-finding power
be any time from the date of
of trial courts, guided by
commencement of the action
expert testimony.6 The
to the date of trial.”
forensic expert retained
The trial court has broad
either by an individual party
discretion to select the approor appointed by the court7 as
priate date for measuring the
a “neutral” engages in a fact
Nancy E.
value of a marital asset.1
finding mission by employGianakos
DRL §236(B)(4)(b) has been
ing various methodologies to
interpreted to mandate an
ultimately determine the
early ruling by the court on said date.2
value of the marital asset. Keep in
Before the Court may distribute mind that there is no uniform rule for
marital assets, it is first necessary to fixing value of an ongoing business.8 In
determine the net asset value of each reconciling the opinions of the experts
asset.3 Bear in mind that it is the party as to value, the answer may well be
seeking equitable distribution of an found in the details of the expert’s
asset who has the burden of proving approach to value rather than the par“value.”4 The failure of a party to prof- ticular financials and circumstances of
fer reliable evidence as to value is on the business entity.
the party seeking distribution and not
The expert will consider three possithe Court, as was the case in Hilts v. ble approaches when valuing a business
Hilts.5 There the husband argued that a interest: the Income, Market or Asset
reversible error resulted from the trial approach. However, there are numercourt’s failure to value each asset in the ous methods within each one of the
By Nancy E. Gianakos and
Harold L. Deiters III
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approaches that the forensic analyst
may consider in performing a valuation.
Generally, consideration of the following are included in the valuation
procedure:
1. Standard of value
2. Premise of value
3. Information about the industry
and economy
4. Information about the company or
assets
5. All three approaches of value
6. Applicable discounts/premiums to
value
7. Analysis of financial information
8. Application the correct methodologies under the valuation approaches
9. Reconciliation of the values
10. Maintaining compliance with
professional standards
In matrimonial actions, the standard
of value used is Fair Market Value
(”FMV”) as defined by Revenue Ruling
59-60:
“The price at which the property
would change hands between a willing buyer and a willing seller when
the former is not under any compulsion to buy and the latter is not under
any compulsion to sell, both parties
having reasonable knowledge of relevant facts.”9
The premise of value pertains to the
status of the entity; whether the business is an ongoing concern, is defunct or
is bankrupt. It is an error for a court to
adopt a forensic conclusion that a busi-
n
11
ness had no value because it was bankrupt.10
Regardless of approach, there are
two parts to the equation: the market
side, i.e. what risk level a buyer or
investor is willing to accept for a given
rate of return and the subject company
side, i.e. the cash flow of the business.
How that is assessed is determined by
the approach taken.
The Income Approach to valuation is
the most widely recognized approach to
valuing an interest in a privately held
enterprise. Generally the types of assets
and businesses that should be valued
utilizing an Income Approach are operating companies, professional practices,
manufacturers and service companies.
This approach is typically NOT used for
asset holding companies with low
returns e.g. real estate holding companies, companies in bankruptcy or companies in financial distress.
There are several valuation methodologies employed to develop an indication of value:
a. Capitalized Cash Flow (a.k.a.-single period earnings)
b. Discounted Cash Flow
c. Excess Cash Flow (a.k.a.-RR 68609 Excess Earnings Method)
The underlying theory of the Income
Approach is that an equity interest in a
privately held enterprise is an investment that can be evaluated in the same
basic manner as any other investment
See VALUATION, Page 20
12
n
October 2014
n
Nassau Lawyer
– EVIDENTIALLY SPEAKING –
VIEWfrom the
BENCH
Don’t Mess With Present Sense Impression!
I begin this month’s column with an acknowledgment: Judge Richard Posner of the US Court of
Appeals 7th Circuit. In my opinion, an absolutely
brilliant jurist, and for many years, one of the
Federal Judges I have admired most. He authored
Overcoming Law (Harvard Press, 1995) for what
was then a provocative commentary on
the state of the US legal system. However,
at times, even the best and brightest go
astray. A recent concurring opinion by
Judge Posner in the case of US v. Boyce1
has led to a conversation in the evidence
world (yes, there is one!) about Posner’s
recommendation that it may well be time
to eliminate the present sense impression/excited utterance exceptions to the
hearsay rule in FRE 803(2). His opinion
was the subject of Professor Michael J.
Hutter’s evidence column in the New York
Law Journal on August 7, 2014.2
FRE 803 (1) and (2) describe non-hearsay statements and are included in the section’s list of 23
such exceptions; subdivisions (1) and (2) of section
803 are Present Sense Impression and Excited
Utterances,
respectively.
Present
Sense
Impression is defined as a statement describing or
explaining an event or condition, made while or
immediately after the declarant perceived it.
Excited Utterance is a statement relating to a
startling event or condition, made while the
declarant was under the stress of excitement that
it caused.
The facts in Boyce are simple. On March 27,
2014 Sarah Portis called 911 at approximately
7:45 pm asking that the police come to her home
because her child’s father (defendant Darnell
Boyce) had just hit her and was “going crazy for no
reason.” When the operator asked if he had a
weapon Portis responded, “yes, a gun.” After some
confusion the operator asked if she had seen the
gun and Portis responded yes. The operator
warned that Portis could be taken to jail if she was
not telling the truth and Portis answered “I’m positive.” When the police responded several minutes
later Boyce was no longer at the apartment and
they interviewed Portis. They later described her
as appearing emotional. After several minutes,
Boyce returned and called out to Portis from the
street. The police asked him to come in and he
fled. During the chase, an officer testified that he
saw Boyce pull a nickel plated gun from his midsection and throw it in a yard where they
retrieved a .357 Magnum and then later found 3
matching bullets in his pants pocket when they
arrested him.
At the trial, neither side called Sarah Portis.
The court admitted the 911 tape recording of Ms.
By Hon. Arthur M. Diamond
Portis’ call as a present sense impression which,
on appeal, the defendant argued was an abuse of
the trial court’s discretion.
The appeals court rejected the argument but at
the same time discussed both the rationale for the
exception and its potential shortcomings. The theory behind the exception, it noted, is
that the contemporaneity of the event
and statement negate the likelihood of
deliberate or conscious misrepresentation or fabrication. The statement
should be the spontaneous reaction to
a startling event and not the result of
reflective thought.3
And then the court added this language: “But that is not to say the spontaneity exception in the Federal Rules
of Evidence necessarily rests on a
sound foundation. We have said before
regarding the reasoning behind the present sense
impression that “as with much of the folk psychology of evidence, it is difficult to take this rationale
entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances.”4 So after acknowledging these issues
with the exception, the court states that nevertheless it is well established and so applied it to the
facts in the case. Portis’ call was made almost
immediately after being hit by Boyce. It noted,
correctly and importantly I think, that she did not
mention the gun until she was asked if he had a
weapon. Can an answer to a question be a present
sense impression? The court did not need to
address that question because it found that her
answers qualified as an excited utterance- a statement that is made after a startling event under
the stress caused by the event and which relates
to the event. Under Rule 803(2) the statement
need not be made contemporaneously with the
startling event but contemporaneous with the
excitement caused by the event.”5
The majority found the trial court did not abuse
its discretion in allowing the statements and
Judge Posner filed a concurring opinion-the sole
point of which was to “amplify” the majority’s concern with the two rules at issue. Posner posits that
while Portis’ statements do qualify under FRE
803 (1) and (2), he believes there is “profound
doubt as to whether either should be an exception
to the rule against hearsay evidence.”6 Noting
that neither side called Portis as a witness,
though either could have, each had obvious reasons for not doing so. Posner’s attack is based
upon a long accepted rationale for the rule that if
the event and its description are close enough in
time then it negates the likelihood of a conscious
misrepresentation. The problem, he points out, is
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that this “immediacy” has been accepted at varying durations of time between the event and the
description, 23 minutes, 16 minutes and 10 minutes.
Furthermore, he states that even true immediacy is no guarantor of truthfulness. People can
make up lies spontaneously and this has been
established by numerous psychological studies,
which he cites.7 Judge Posner concludes by stating “it is time the law awakened from its dogmatic slumber. The “present sense impression” exception never had any grounding in psychology. It
entered American law in the nineteenth century
long before there was a field of cognitive psychology; it has neither a theoretical nor an empirical
basis; and it is not even common sense – it’s not
even good folk psychology.”8 The answer, he
posits, is to expand Rule 807, known as the
Residual Exception, to cover these two troublesome exceptions and several others. FRE 807 covers those statements that are not specifically covered by a hearsay exception but are admissible if
the court finds that the statement has equivalent
circumstantial guarantees of trustworthiness and
is more probative on a material fact than any
other evidence that the proponent can obtain
through other reasonable efforts.)
The New York Rule
As Professor Hutter correctly pointed out, New
York adopted the common law versions of excited
utterance exception in People v. DelVermo,9 and
present sense impression in People v. Brown,10
However, in the Brown decision, the Court of
Appeals added a corroboration requirement to the
common law rule. In that case, a 911 caller identified as “Henry” said that he was observing someone break in to an apartment across the street
from him. He gave a description of the two perpetrators who were later arrested. At the trial the
caller was not available (he had given a false
name and phone number to the operator) and the
prosecutor offered the tape recording as a common
law present sense impression exception to the
hearsay rule and the court admitted the tape. The
Court of Appeals, in a landmark ruling, written by
J. Hancock, accepted the evidence IF it is sufficiently corroborated by other evidence, that is had
some additional indicia of reliability.11
Brown remains the law in New York today and
it will be interesting to see if Judge Posner’s concurrence kick starts a movement to address our
common law acceptance of both of these exceptions. According to Prof. Hutter, at a recent meeting of the Federal courts Advisory Committee on
See VIEW FROM THE BENCH, Page 23
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2014 AN
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Mon
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December 8
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October 2014
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Nassau Lawyer
The Medicare Hospice Benefit
Hospices play an important role in
the American health care system. In
2007, 1.4 million Americans used hospice services.1 The majority of those
Americans – 83.6 % received those services through the Medicare program,
established by President Johnson in
1965.2
This article will explain what hospice
is and discuss the process by which peo-
ple can voluntarily elect hospice services as they near the end of their lives. A
more thorough understanding of the
various ways the regulatory infrastructure, including Medicare and the
Patient Protection and Affordable Care
Act,3 impact the hospice benefit, will
help professionals, including attorneys
specializing in elder care, better understand their clients’ decision-making
process.
For those people who do not qualify
for hospice under Medicare, Medicaid in
New York, and most private insurance
plans, HMOS and other managed care
organizations do include hospice care as
a benefit. In addition, most not for profit hospice organizations are missiondriven and use donations from the community to provide hospice services to
Nassau Academy of Law ORDER FORM
TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due.
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Seminar Reservation Form
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Seminar Name
P
October 21
Orders of Protection
2.0
October 22
*RYHUQPHQWLV/LVWHQLQJ«)HGHUDO:LUHWDSSLQJ
1.0
October 24
Criminal Law & Procedure Update 2014
2.5
October 27
Objections! When & How to Make Them
October 28
E
Domus
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1.0
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Evening with the Surrogates (incl. Cocktail Hour)
November 13 Nassau's Support Magistrates Tell All
November 17 <RX&DQ
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November 18 Philosophy and Mechanics of Lobbying
December 2 Avoiding Ethical Problems in the Internet Age
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1.5
1.5
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Animal
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2.0
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Commercial State Commercial & Federal Court Round-Up
2.0
2
75/95
110/130
4STATE0604
Criminal
From Langata to Long Island: Restorative Justice
3.0
3
115/130
150/175
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E-Discovery & E-Evidence: Ever-(PHUJLQJ«
2.5
0.5
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1.0
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3.0
3
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4LAP042414
Ethics
Estate/Trust Evidentiary Issues in Surrogate's Court Proceeding 3.0
Family/Mat. Parental Alienation: Truth and Consequences
2.0
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Hot Topics in Health Law
2.0
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115/130
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Nuts & Bolts of Medicaid Managed Long Term ...
3.0
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Labor Law: You Mean That Can Be A Crime?
2.0
2
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110/130
4LABOR0129
Medicine in the Courtroom
3.0
3
115/130
150/175
4MEDIC0318
Social Media: Impacting Litigation Outcomes
1.0
1
40/55
75/80
DH022714
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people who can’t pay for them through
any other means.
Understanding Hospice
Many people are surprised to learn
that the term “hospice” does not designate a specific place. In fact, more than
90% of the hospice services provided in
this country are based in the home
where many people, when surveyed, say
they would prefer to be.
It is important
to realize that
sometimes home
care is not an
option. In those
cases, the person
may receive hospice services in a
location
other
than their home –
for
example,
through a contracting hospital,
Christin Paglen
skilled
nursing
facility, or sometimes through the individual hospice’s
own in-patient facility. Sometimes, people who are receiving care in their
homes encounter emergency situations.
In those cases, as well, people may
receive hospice services in a place that
is not their home.
People within the healthcare industry like to say that “hospice is a philosophy and not a place.” To some extent
this phrase adequately describes hospice’s inter-disciplinary approach; when
someone elects to receive hospice services, an entire team of professionals –
including physicians, nurses, social
workers, home care aides, therapists
and spiritual or religious counselors
work together to support both the person facing the end of their life and their
family. When surveyed, people and
their families consistently report that
although they faced great reluctance in
electing to receive hospice services, but
once they experienced the level of care,
“They wish they had started on the program sooner.”4
Hospice Care
and Medicare Coverage
Medicare plays an important role in
financing hospice care. In 2008,
Medicare expenditures for hospice care
exceeded eleven billion doctors, in the
form of per diem payments to more than
3,300 hospices.5 The per diem payment
process means that Hospice payment is
a consistent rate paid for each day of
care regardless of the level of care provided that day.
Whether or not Medicare will cover
hospice care for a person depends on a
three-step analysis. First, the person
must be eligible for Medicare benefits in
general. To be eligible for Medicare benefits generally a person must fall into
one of three categories. The first way to
qualify is to be 65 years of age or older
and to have paid or have a spouse who
has paid into the Social Security system
for a specified amount of time.6 Second
a person may qualify if he or she is
under 65 years of age but has qualified
for disability income pursuant to the
Social Security Act.7 Finally any person
with end-stage renal disease, including
kidney failure which necessitates dialysis or a transplant, qualifies for
Medicare coverage.8
Second, the person must meet the
criteria for “terminal illness” within the
meaning of the law governing Medicare
See HOSPICE, Page 22
ADR ...
Continued From Page 7
regarding this initiative.
The ensuing debate is not altogether new. In 2000, the ABA convened
the Ethics 2000 Commission to consider certain amendments to the Model
Rules of Professional Conduct, including Rules 1.4 and 2.1. Rule 1.4
(“Communication”) states that the
attorney shall “reasonably consult
with the client about the means by
which the client’s objectives are to be
accomplished.”4 Rule 2.1 (“Advisor”)
states that the attorney shall “exercise
independent professional judgment
and render candid advice.” Not only
legal, but also “moral, economic,
social, psychological, and political factors” must be considered.5 Proposed
amendments to these Rules sought to
mandate or suggest that the attorney
discussion
include
Alternative
Dispute Resolution options with certain clients.
Advocates for such amendments
argue that the “Advisor Rule,” Rule
2.1, imparts an obligation on attorneys to discuss ADR options with
clients because ADR singularly
addresses the extra-legal issues that
are contemplated by the rule.
Mediation, in particular, has been
cited for its “important ancillary
effects” because it “promot[es] an
approach to the resolution of conflict
that is direct and focused on the interests of those involved in the conflict....”6
Likewise, practitioners in the fields
of elder law, guardianship, and trusts
and estates have hailed mediation’s
efficacy in addressing the “underlying
relationship issues or dynamics” that
are, in fact, driving the legal action.7
For instance, in a dispute over the
validity of documents, such as a
durable power of attorney and patient
advocate designation, family members
often contest their elderly relative’s
legal capacity. The “real issue” is often
“who will control [mom’s] life and
property.”8
From a “rights” perspective, however, some attorneys believe that they
should retain discretion over whether
to bring mediation or arbitration to
their clients’ attention. Mediation, for
instance, may not be appropriate
where there are power imbalances
and the “weaker” party would not
enjoy certain procedural protections
that are available in a courtroom.9
Stated differently, if parties give up
legal “rights,” they may receive “‘half
a loaf’ when they are entitled to a
whole.”10
At the conclusion of the Ethics 2000
Commission, the House of Delegates
of the ABA voted to provide attorneys
discretion over whether to discuss
ADR with their clients. Comment [5]
to Model Rule 2.1 was amended as follows: “Similarly, when a matter is
likely to involve litigation, it may be
necessary under Rule 1.4 to inform
the client of forms of dispute resolution that might constitute reasonable
alternatives to litigation.”11
To date, several states have adopted rules, comments to rules, or ethics
opinions that mandate or encourage
attorneys to advise their clients of
ADR, including Virginia,12 Massachusetts,13 Michigan,14 Colorado,15 and
Hawaii.16 However, the ABA has not
STATEMENT OF OWNERSHIP,
MANAGEMENT AND CIRCULATION
(Act of Oct. 23,1974: Section 4360, Title 39. United States Code)
1. Date of filing, October 1, 2014.
2. Title of publication: Nassau Lawyer.
3. Frequency of publication: Monthly, except July & August are combined.
4. Location of known office of publication: 15th & West Streets, Mineola, NY 11501.
5. Location of headquarters or general business of publishers: 2150 Smithtown Ave.,
Ste. 7, Ronkonkoma, NY 11779-7348.
6. Name of Publisher Scott Schoen, 2150 Smithtown Ave., Ste. 7, Ronkonkoma,
NY 11779-7348 Editor: Chris DelliCarpini, Nassau County Bar Association, 15th
& West Streets, Mineola, NY 11501.
The owner is: Bar Association of Nassau County, Inc.,
15th & West Streets, Mineola, NY 11501.
Average No. Copies Each Issue During the Preceding 12 Months:
A. Total No. copies printed (Net Press Run), 6,037
B1. Paid Outside County-Circulation: Mail Periodicals Subscription, 4,875
B2. Paid In-County Circulation, 49
C. Total Paid Circulation, 4,924
D1. Free or Nominal Rate Distribution Outside-County, 847
D4. Free or Nominal Rate Distribution Outside the Mail, 205
E. Total Free or Nominal Rate Distribution, 1,051
F. Total Distribution (Sum of C & E), 5,976
G. Copies not Distributed, 61
H. Total (Sum of 15f and 15g), 6,037
No. Copies of Single Issue Published Nearest to Filing Date (July/August 2014 issue).
A. Total No. copies printed (Net Press Run), 5,200
B1. Paid Outside-County Circulation: Mail Periodicals Subscription, 4,428
B2. Paid In-County Circulation, 539
C. Total Paid Circulation, 4,967
D1. Free or Nominal Rate Distribution Outside-County, 0
D4. Free or Nominal Rate Distribution Outside the Mail, 200
E. Total Free or Nominal Rate Distribution, 200
F. Total Distribution (Sum of C & E), 5,167
G. Copies not Distributed: 33
H. Total (Sum of 15f and 15g), 5,200
I certify that the statements made by me above are correct and complete.
Keith J. Soressi, Executive Director Nassau County Bar Association.
publicly taken up this issue again.
Comments released for Publication by
the ABA Ethics 20/20 Commission do
not address further amendments to
Rules 1.4 or 2.1.17
New York attorneys are guided by
the Rules of Professional Conduct,
Part 1200,18 which supersedes the
Disciplinary Rules of the Code of
Professional Responsibility. Rules 1.4
and 2.1 of New Yorks Rules of
Professional Conduct correspond to
the ABA’s Model Rules 1.4 and 2.1,
with some differences. New York’s
Comment [5] to Rule 2.1 references
ADR as follows: “Similarly, when a
matter is likely to involve litigation, it
may be advisable under Rule 1.4 to
inform the client of forms of dispute
resolution that might constitute reasonable alternatives to litigation.”19
Thus, the recent proposal from the
New York City Bar Association to
modify the mandated content of
Letters of Engagement under Part
1215 illustrates the ongoing emergence of ADR in the practice of law.
Courts nationwide are increasingly
endorsing ADR in certain circumstances.20 At the very least, it appears
that practitioners should become
familiar with ADR processes to properly advise their potential clients.
Ellin Regis Cowie, Esq. is the Chair of the
Subcommittee on Public Awareness of
ADR, of the Alternative Dispute Resolution
Committee at NCBA. She is experienced
in medical malpractice defense litigation
and Article 81 guardianship practice, and
assists at the Mortgage Foreclosure Clinic
at NCBA.
1. 22 NYCRR § 1215.1.
2. Chris Stern Hyman, Esq., Letter, April 9,
2014, available at http://www2.nycbar.org/pdf/
Nassau Lawyer
n
October 2014
n
17
report/uploads/20072463-ProposingAttorney
EngagementLettersIncludeADROptions.pdf.
3. Id.
4. Model Rules of Prof’l Conduct R. 1.4.
5. Model Rules of Prof’l Conduct R. 2.1.
6. Prefatory Note to the Uniform Mediation
Act, as amended (2003), Nat’l Conference of
Comm’rs on Unif. State Laws; see also
Nancy H. Rogers & Craig A. McEwen,
Employing the Law to Increase the Use of
Mediation and to Encourage Direct and
Early Negotiations, 13 Ohio St. J. on Disp.
Resol. 831 (1998).
7. Susan J. Butterwick & Susan D. Hartman,
Elder Mediation: Coming of Age, 20 Dispute
Resolution Magazine 19 (Fall 2013); see also
Jay Folberg, Mediating Family Property and
Estate Conflicts: Keeping the Peace and
Preserving Family Wealth, Probate &
Property, Am. Bar Assoc., Nov/Dec 2009.
8. Butterwick & Hartman, supra n. 7.
9. Mary F. Radford, Is the Use of Mediation
Appropriate in Adult Guardianship Cases?, 31
Stetson L. Rev. 620 (2002).
10. Erica F. Wood, Dispute Resolution and
Dementia: Seeking Solutions, 35 Ga. L. Rev.
785, 803 (2001).
11. Model Rules of Prof’l Conduct, Comment [5]
to R. 2.1.
12. Va. Rules of Prof’l Conduct, Comment [1] to
R. 1.2, Comment [2] to R. 2.1.
13. Mass. Rules of Prof’l Conduct, Comment [5]
to R. 1.4.
14. State Bar of Michigan, Standing Committee
on Professional & Judicial Ethics, Opinion
No. RI-262 (May 7, 1996).
15. Colo. Rules of Prof’l Conduct R.2.1.
16. Haw. Rules of Prof’l Conduct R. 2.1.
17. See Comments, Am. Bar. Assoc., available at
http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_eth
ics_20_20/comments.html.
18. 22 NYCRR Part 1200.
19. N.Y. Rules of Prof’l Conduct, Comment [5] to
R. 2.1.
20. See, e.g., ADR Handbook for Judges, Donna
Stienstra & Susan M. Yates, eds., Am. Bar
Assoc. Section of Dispute Res., 2004; Nancy
E. Delaney, Jonathan Byer & Michael S.
Schwartz, Rachal v. Reitz and the Evolution
of the Enforceability of Arbitration Clauses in
Estate Planning Documents, Probate and
Property, Nov/Dec 2013 (Real Property, Trust
and Estate Law Section, Am. Bar Assoc.).
18
n
October 2014
n
Nassau Lawyer
WE CARE
We Acknowledge, with Thanks,
WE CARE
Thanksgiving Day
Luncheon for Seniors
Thursday, Nov. 27, 2014
11:00 a.m. - 1:00 p.m.
at the
Nassau County Bar Association
To recommend Seniors who
are alone for the holiday
contact:
Contributions to the WE CARE Fund
In Honor Of
Donors
Ellen Birch
Hon. Denise Sher
Wedding of Samantha Unger to Andrew Hollow,
Daughter of Dede & Scott Unger, Granddaughter of Hon.
Elaine J. Stack
Ellen Birch
Hon. Denise Sher
Emily Franchina’s receipt of the Hall of Fame Award at
the 2014 LI Business News Top 50 Most Influential Women
in Business Event
Hon. Sondra Pardes
Hon. Denise Sher
Hon. Jeffrey Goodstein being honored by
Touro Law Center
Donors
In Memory Of
Steven J. Eisman & Samuel J. Ferrara
Gassman Baiamonte Betts, P.C.
Stephen Gassman
Michael G. Lo Russo
Hon. Denise Sher
Hon. Elaine Jackson Stack
Susan Bender
Grandmother of Katie Gruner
Wife of Michael Solomon
Rosalind Joel, mother of Billy Joel
Lynn Bosco, sister in-law of Lisa Bosco, Administrative
Assistant to Hon. Thomas A. Adams
John Anthony Fiorella III
In Memory of Deborah Keenan, Mother of Harold L. Deiters III
Ellen Birch
Arnold Klein
Jerome Scharoff
Hon. Peter B. Skelos
Schlissel, Ostrow, Karabatos PLLC
Perri Boodram
(516)747-4070 x226
Checks made payable to Nassau Bar Foundation-WE CARE
Contributions may be made by mail:
or On-line at
www.nassaubar.org
NCBA Attn: WE CARE
15th & West Streets
Mineola, NY 11501
WE
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ARE T
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at the
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’d llike
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thank you
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SAVE THE DATE
WE CARE presents
GINGERBREAD
UNIVERSITY
TWO SESSIONS
morning & afternoon
Saturday, December 6, 2014
Nassau County Bar Association
Details
coming
soon!
With
With sincere
sincere gratitude
gratitude ffrom
rom our
our patients,
patients,
Karen
K
aren D
Demairo
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Sara
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ara Lipsky
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Patient
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at the
the WE
WE CARE
CARE Fund
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ffor
or ttheir
heir v
very
ery generous
generous donation.
donation. Please
Please know
know that
that
100%
100% of
of this
this donation
donation will
will go
go to
to the
the direct
direct support
support
services
services for
for the
the children
children living
living with
with disabilities.
disabilities. This
This
pharmaceuticals, specialized
includes
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Thank you
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from the
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our hearts
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Thank
this
donation
donation and
and for
for always
always believing
believing in
in our
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Sincerely,
Sincerely,
Chris
Chris G
Gigante
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President
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Your
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Thanks
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gain ffor
or
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your never-ending
never-ending tthoughtfulness!
houghtfulness!
Sincerely,
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J
ean Kelly
Kelly
Jean
E
Executive
xecutive Director
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TRAVEL ...
Continued From Page 3
way to find it.” Dr. Okike continues:
“Unlike pretty much every other consumer industry, health care costs are
not transparent , even for the surgeons.
Each hospital system and purchasing
group negotiates deals with device
manufacturers and signs a nondisclosure form, promising not to share the
details of those prices with anyone else.
That’s because medical device manufacturers strive to keep their prices
confidential so that they can sell the
same implant at a different price to different health care institutions. But at
the root of it, the biggest problem is the
lack of price transparency across the
industry.”4
In May of 2013, Medicare released
data regarding charges for various
medical procedures. This data shows
the vast differences in charges and
reimbursement amongst providers
and hospitals in state and interstate.5
Also in 2013, the Hospital Outpatient
Cost Index for Worker’s Compensation, 2nd Edition was released.6
The focus of the report was an analysis of outpatient costs for services provided in the hospital setting. The
report highlighted the disparity of
costs among twenty (20) states represented in the study. Justice David
Langham, a workers compensation
judge in Florida, discusses these studies and how this information may
effect domestic medical travel. “[W]ith
the vast disparity in reimbursements
demonstrated in the WCRI study
released last January and the
Medicare data released last May, payers such as insurance companies may
find savings in sending injured workers to states or localities with greater
cost control for outpatient surgery.”7
Hospitals and Providers
Hospitals and providers will need
to establish innovative models for
managing costs and receivables.
Payers are consolidating networks
resulting in limited choices for
patients with smaller pools of
providers and hospitals. Large corporations and multinationals will to
look to develop relationships with
provider groups and hospitals willing
to negotiate discounted rates.
Collecting up front from self-pay,
high deductible or health savings
account patients will likely add some
discomfort to doctors who rarely needed to discuss costs. Providers are no
longer going to be able to afford to collect high patient responsibility co-payments after the services.
Employer Self-Funding
Savvy employers are seeking ways
to control increased employee medical
costs. Among the options being considered are contractual agreements and
incentivizing employees to use domestic and international travel for medical
services. Employers are carefully evaluating the quality, safety costs, and
the patient experience that medical
travel may provide.
Health insurance plans offered by
employers to their workers can be
divided into two broad categories: fully
insured and self-insured. Simply put,
fully insured group health plans are
those in which an employer pays a premium to an insurer and the insurer
takes on the risk of covered claims.
Self-insured plans are those in which
the employer takes on the financial
risk of covered benefits and pays the
claims directly, often using a third-
party administrator. Self-insuring
employers may purchase reinsurance
policies to protect from the risks of
self-insuring.8
Lowe’s Companies was one of the
first to take advantage of domestic
medical travel. The home improvement retailer, with 114,000 employees,
enrolled in a health insurance plan
and partnered with the Cleveland
Clinic to provide a coverage option that
would shift complicated cardiac surgeries from a community facility to the
Cleveland Clinic, renowned for its
quality care.
Other large self-funding companies
that have followed suit include
Wal-Mart, The Boeing Co., PepsiCo,
RaceTrac and HCR ManorCare. One
of the ways these programs contain
costs is by negotiating a single rate up
front. This includes a fee for surgeons,
anesthesiologists and all medical care
until hospital discharge. With the
winds of change in their face, cashstrapped employers and patients are
bracing for even higher healthcare
and insurance costs despite the ACA’s
best intentions to make healthcare
affordable.
Insurance
Insurance coverage for medical
travel is one of the greatest factors
that will determine the trajectory of
the medical travel industry. Medical
indemnity insurance may not be compulsory in many countries. If it exists,
it may be limited in amount or exclude
foreign patients.
The more common form of insurance protection from adverse outcomes in medical travel is Medical
Complication Insurance. This form of
insurance will provide some coverage
options if a treatment has to be
remedied or corrected. Presently,
there are two insurance carriers that
offer
Complication
Insurance:
Custom Assurance Placements and
Seven Corners. Custom Assurance
Placements is underwritten by
Lloyds of London. It provides coverage up to 6 months post initial treatment. The second is Seven Corners
also underwritten by Lloyds of
London. Seven Corners does not
cover medical procedures done in the
US. In addition, this coverage has
exclusions as do all insurance policies. Also, any covered treatment
must be performed at one of the 500
plus hospitals accredited by the Joint
Commission International.
Legal Implications
One of the greatest concerns is what
happens if something goes wrong?
Who, if anyone, will be held responsible?
Legal issues run the gamete, including HIPAA compliance, when and
where to file a lawsuit, service of
process requirements, jurisdiction,
governing law, waivers, consent, evidence, lack of set standard of care
requirements, contract enforcement,
insurance, indemnification and the
collection of judgements. For international travel, the issues become much
more complicated with procedural and
substantive international law, foreign
attorneys and language barriers
included in the mix.
To pursue a claim for medical negligence, one must demonstrate a departure from the accepted standards for
procedures in the country in which the
surgery was carried out. Not only must
the legal claim be brought using the
local legal system, but the claim must
be established according to local medical standards of practice and local
laws – not the standards in the country the medical tourist comes from.
Entering into contracts for international treatment must be done carefully. This is especially true if an intermediary, also known as a medical
facilitator, is used and the patient is
required to enter into a contract.
Conclusion
There is an immediate need for
more quantitative and qualitative
medical travel research, globally,
regionally and locally. Empirical information regarding patients perspectives or experiences with medical travel must be shared, good and bad.9
Increased education about medical
travel is fundamental to its success.
Employers and employees in particular need to gain knowledge about the
risks and benefits of medical travel.
Then, insurers can be pressured to create products that offer increased
options.
The potential for legal services in
this industry are extensive. Issues
include consent forms, confidentiality
agreements, patient rights, releases,
HIPAA compliance, international data
privacy and security laws, concurrent
and collaborative care, telemedicine
and e-records.
Also, ethics of certain medical practices must be examined. One issue is
whether increased medical tourism
will hurt the economy by taking jobs
out of the US? Another is whether
allowing expatriates to have medicare
treatment in their adopted country
could save the US substantial money.
Will medical travel increase the
competition among the hospitals and
doctors to make US healthcare better,
Nassau Lawyer
n
October 2014
19
more affordable, and less risky to the
patients? Patient choice means
greater accountability for healthcare
providers.
What remains to be seen is
whether insurers and other stake
holders will decide to act proactively
or passively. The ACA will change the
way healthcare is delivered in the US.
How to make it work is up to the innovators in insurance, medicine, law
and business.
Patricia Kessler practices in the area of
insurance law and presently serves as an
arbitrator. She has been dedicated to conducting extensive research in the area of
medical travel. She recently was a speaker
on medical travel at the Nassau County Bar
Association and is involved with numerous
organizations in the med-ical travel industry. She can be reached at pakessler10@
gmail.com or at www.linkedin.com/in/patricia kessler.
1. Medical Tourism Climate Survey 2014, Int’l
Med. Travel J. (Mar. 2014).
2. AMA Policy H-450.937, AMA Directive D450.970.
3. Nat’l Ctr. for Health Statistics, Office of
Anaylsis and Epidemiology, Health, United
States, 2013, p.5 (detailing 4.1% increase in
health care costs from 2010 to 2011).
4. Kanu Okike et al., “Survey Finds Few
Orthopedic Surgeons Know the Costs of the
Devices They Implant,” Health Aff., 33:103109 (Jan. 2014).
5. Centers for Medicare and Medicaid Services,
http://www.cms.gov/Research-Statistics-Dataand-Systems/Statistics-Trends-andReports/Medicare-Provider-Charge-Data.
6. http://www.wcrinet.org/result/hosp_cost_index
_2_result.html.
7. David Langham, Lex and Verum, No. LI, pp.
8-11 (Dec. 2013).
8. House Small Business Subcommittee on
Health and Technology Hearing, Nov. 18,
2013, available at
http://insurancenewsnet.com.
9. 2013 Medical Tourism Association Survey
Report.
NCBA Sustaining Members
2014 - 2015
Martin P. Abruzzo
Mark E. Alter
Mark A. Annunziata
Ernest T. Bartol
Jack A. Bennardo
David A. Bythewood
Neil R. Cahn
Ralph A. Catalano
Alan W. Clark
Richard D. Collins
James C. Daly
Willard H. DaSilva
John P. DiMascio
Thomas P. Dougherty
Steven J. Eisman
Charo Ezdrin
Russell C. Friedman
Domingo R. Gallardo
Marc C. Gann
Eugene S. Ginsberg
Frank Giorgio, Jr.
John J. Giuffre
Robert E. Grey
Hon. Frank A. Gulotta, Jr.
Andrew J. Hirschhorn
Alan B. Hodish
Carol M. Hoffman
Elena Karabatos
Hon. Susan T. Kluewer
n
Martha Krisel
Lawrence M. Lally
Donald F. Leistman
Jonathan C. Lerner
Steven G. Leventhal
Hon. Roy S. Mahon
Shalom S. Maidenbaum
Peter J. Mancuso
Michael R. Martone
Robert A. McDonald
John P. McEntee
Christopher T. McGrath
Anthony J. Montiglio
Neil J. Moritt
Linda G. Nanos
Hon. Michael L. Orenstein
Gary Petropoulos
Susan Katz Richman
Leonard L. Rivkin
Stephen W. Schlissel
Marc H. Schneider
Jane P. Shrenkel
Hon. Peter B. Skelos
Ira S. Slavit
Hon. Arthur D. Spatt
Sanford Strenger
M. David Tell
Kathleen Wright
October 2014
VALUATION ...
20
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Nassau Lawyer
value should be considered in each valuation; though it is uncommon to use all
three approaches in each valuation.
Courts have recognized that several
methods may be used to value a closelyheld corporation i.e. capitalization of
earnings, asset valuation, Internal
Revenue service factors and stockholder
agreements and that no one method is
more appropriate than another.12
Nonetheless, failure of the trial court to
demonstrate that it had considered all
of the circumstances that comprise the
“present worth of the property to the
titleholder” may result in remitter by
the appellate court for lack of basis to
assess the valuation.13
When multiple approaches (and
methods) are used to value a business it
is important that the concluded values
under each approach be reconciled. If
you have one approach that has a significantly higher or lower value than
another approach, a reconciliation is
necessary - you need to ask why and
give due consideration to the possibility
that one or more errors lie in the
approaches or methodologies employed.
Continued From Page 11
that the investor might choose to make;
that the investor is buying an investment because of the future expected
cash flow, a forward-looking premise;
and that by calculating a value based on
this premise, it is assumed that the
value of an ownership interest is equal
to the sum of the present values of the
expected future benefits of owning that
interest. No other valuation approach
so directly incorporates this fundamental premise in its calculation of value.
Under the Income Approach the two
part equation for valuation looks like a
fraction made up of the numerator representing the “future payments” (the
subject company side) and the denominator the rate of return required for the
particular interest represented by the
cash flow in the numerator (the market
side). The denominator reflects opportunity cost, or the “cost of capital.” In
other words, it is the rate of return that
an investor would require to draw them
to a particular investment rather than
an alternative investment.
The Market Approach to valuation
presumes that the value of a business
can be determined by reference to sales
of reasonably comparable guideline
companies (also referred to here as
“comparables” or “comps”) that have
taken place in either the public or the
private marketplace. The value may be
known either because the companies
are publicly traded or because they
were recently sold and the terms of the
transaction were disclosed. Based on
the economic principle of substitution, a
rational financial buyer will not pay
more for a company than the current
price for a comparable company.
The methodologies for this approach
include:
a. Guideline Public Company
Method – based on reasonably comparable publicly traded companies
b. Guideline Company Transaction
Method – based on transactions of reasonably comparable private companies
reported in various databases; this is
used as a rule of thumb but there is no
verification of the source.
c. Direct Market Data Method –
based on a significant number of private transactions reported in various
databases that purport to represent the
market.
d. Prior Transactions in the subject
company stock
Using the Market Approach, the subject company side of the two part equation is the financial indicator that will
apply to the market side, for example,
in a “price to revenue” calculation the
revenue would be that of the subject
company. The market side is the multiple derived from transactions of similar
companies. This is an indication of what
the market will pay for a company in a
particular industry.
Again, as in the Income Approach,
the Market Approach is best suited for
operating companies, professional practices, manufacturers and service companies and typically should NOT be
used in a valuation of an asset holding
company, companies in bankruptcy and
companies in financial distress.
The Asset Approach to valuation is
defined in the International Glossary of
Business Valuation Terms as “a general way of determining a value indication of a business, business ownership
interest, or security using one or more
methods based on the value of the
assets net of liabilities.”11 In the valuation of a business enterprise, the Asset
Approach presents the value of all the
tangible and intangible assets and liabilities of the company. As typically
used, this approach starts with the book
basis balance sheet as close as possible
TAX ...
Continued From Page 9
cash flow problems in making payouts to retiring
partners. The firm may need to increase its borrowing. Looking ahead, it may also be time to
reconsider the firm’s retirement formulas.
Q. Will there be any impact on our financial
statements?
A. This will depend on your corporate structure. If
the firm is a corporation, corporate taxes can be
accelerated and liabilities can be added to the balance sheet. For firms operating as partnerships,
liabilities will be on the partner level.
Q. How will billing and collections be affected?
A. The billing and collections process will become
even more crucial and may need to be modified.
Firm estimates on the collectability of WIP will
become more meaningful. Prompt payment by
to the valuation date and restates the
assets and liabilities, including those
that are unrecorded, to fair value
(financial reporting) or fair market
value (tax and other purposes). On the
surface, the Asset Approach seems to be
simple, but deceptively so. The application of this approach introduces a number of complicating factors that must be
addressed before a satisfactory analysis
is concluded.
With the possible exception of certain
financial institutions, a historically
based accounting balance sheet will
almost always bear little relationship to
value. The balance sheet is useful only as
a starting point and requires a series of
adjustments to reach fair market value.
Depending on the interest being valued,
the value indication thus derived may
require further adjustments to properly
reflect fair market value relative to the
specific subject interest.
This valuation approach should be
considered for asset holding companies,
companies in bankruptcy, and companies in financial distress and asset
heavy manufactures. It is typically not
considered for operating companies,
professional practices, manufacturers
with a light asset base and service companies.
All three approaches to establishing
clients must become a first order of business, which
will likely require more direct partner involvement
to help ensure that the client complies. Some firms
have billing cycles of as much as 90 days. This is
untenable under the accrual method and the 30
day cycle will have to become the new standard.
Q. Are there implications for our banking
relationships?
A. Yes. It is likely that you will need to completely
redesign your loan covenants and credit facilities.
The firm will probably need to increase its borrowing or arrange a partner loan program.
Q. What can we do to prepare?
A. There are a number of practical steps to help
pave the way to a smooth transition.
• Review your partnership agreements and isolate changes that will be required.
• Review and revise collection policies.
• Discuss needed changes with partners so they
understand the cash flow issues they will be facing.
• Revisit and revise your financing arrangements.
Harold L. Deiters III is a partner-in-charge of
the Litigation and Valuation Services Group
in the New York regional offices of Baker Tilly
Virchow Krause, LLP (harold.deiters@baker
tilly.com).
Nancy E. Gianakos is a partner at Albanese
& Albanese LLP, Garden City, New York
([email protected]) and practices exclusively in matrimonial and family
law matters. She is a member of the NCBA
Matrimonial and Family Law Committees,
and the Nassau Academy of Law.
1. Cusumano v. Cusumano, 92 A.D.3d 988 (2d
Dept. 2012).
2. Capasso v. Capasso, 129 A.D.2d 267 (1st Dept.
1987).
3. D’Amato v. D’Amato, 96 A.D.2d 849 (2d Dept.
1983).
4. Harris v. Harris, 242 A.D.2d 588 (2d Dept. 1997).
5. Hilts v. Hilts, 248A.D.2d 788 (3d Dept. 1998).
6. Burns v .Burns, 84 N.Y.2d 369 (1994); Ripka v.
Ripka, 77A.D.3d 1384 (4th Dept. 2010).
7. 22 NYCRR § 202.18.
8. Wasserman v. Wasserman, 66 A.D.3d 880 (2d
Dept. 2009).
9. Treas.Reg. Sec.20-2031-1(b)
10. Dempster v. Dempster, 204 A.D.2d 1070 (4th
Dept. 1994).
11. International Glossary of Business Valuation
Terms, as subscribed to by the American
Institute of Certified Public Accountants,
American Society of Appraisers, Canadian
Institute of Chartered Business Valuators,
National Association of Certified Valuation
Analysts and The Institute of Business
Appraisers.
12. Cerratani v. Cerratani, 221 A.D.2d 814 (3d
Dept. 1995).
13. Amodio v. Amodio, 70 N.Y.2d 5 (1987);
DeSantis v. DeSantis, 205A.D.2d 928 (3d
Dept. 1994).
• Review your fee structure. Consider contingency fees.
• Revisit your engagement letter language and
look into increasing your retainer fees.
These are just some of the questions and concerns stemming from the very real possibility that
these Congressional proposals, in some form, may
become a reality. With the future shrouded in
uncertainty, it is prudent to plan ahead and take
steps to ease the way towards a potential transition.
John Fitzgerald, (212) 331-7411, [email protected],
is an audit partner and Chair of Law Firm Services at
Berdon LLP. An advisor to practices of all types and sizes,
he consults on maximizing opportunities in purchases,
sales, and acquisitions; obtaining financing and refinancing; preserving and transferring wealth; and on improving
operations.
Marc Ausfresser, (212) 331-7639, mausfresser@berdon
llp.com, is a Berdon tax principal and attorney with
expertise that extends to planning the organization of
business entities to minimize taxes and maximize financial return. The firm has offices in Jericho and New York
City.
Nassau Lawyer
n
October 2014
n
YOU CAN’T PUT A PRICE TAG ON WHAT HEALTH CARE PROFESSIONALS DO –
BUT YOU CAN SAY THANK YOU WITH A HEALTH CARE HEROES AWARD.
THURSDAY, NOVEMBER 6, 2014 • CREST HOLLOW COUNTRY CLUB • 8-10 A.M.
ACHIEVEMENTS IN HEALTH CARE
MAKOPLASTY KNEE REPLACEMENT, St. Charles Hosptial
RAPID RESPONSE TEAM, STONY BROOK MEDICINE,
Barbara Mills, Director
COMMUNITY OUTREACH
LUNG CANCER SCREENING PROGRAM, John T. Mather Memorial Hospital
STONY BROOK UNIVERSITY CANCER CENTER, LINDA BILY,
Cancer Patient Advocacy & Community Outreach Coordinator
PROJECT HOPE II, THE MINISTRY FOR HOPE, INC.,
Michael Chiappone, Director
COMPLEMENTARY/ALTERNATIVE MEDICINE
WALTER PRIESTLEY, Chiropractor, Priestley Chiropractic
DENTIST HERO
LEON KLEMPNER, Dentist/Owner, Coolsmiles Orthodontics
HEALTH CARE FACILITY
VISITING NURSE SERVICE & HOSPICE OF SUFFOLK, INC.,
Kathy Genova, Clinical Manager
HEALTH CARE PROFESSIONAL HERO
ARIEL BATISTE, SHP Case Manager, Community Housing Innovations Inc.
PAUL HARNICK, Managing Partner, Cardiovascular Medical Associates
JOSEPH WINSTON, Chief Certified Registered Nurse Anesthesist, North
American Partners in Anesthesia
EDWARD FRASER, Regional Director Community Relations,
North Shore LIJ Health System
DANTE LATORRE, Vice President of Quality and Regulatory Affairs,
St. Charles Hospital
EDWARD STAPLETON, Associate Professor and Director of Pre-hospital
Education, Department of Emergency Medicine, Stony Brook Medicine
JOSEPH TOMMASINO, Chairman, Physician Assistant Programs,
Touro College School of Health Sciences
HEALTHY & FIT WORKPLACE
BERNARD MONTELEONE, Medical Director, Corporate Wellness,
Cablevision Systems Corp.
NURSE HERO
MELODY BUTLER, BSN, RN, Good Samaritan Hospital
CARLENE WILLIAMS, Assistant Nurse Manager, Labor & Delivery,
Huntington Hospital
MARY FERRARA, Nurse Manager inpatient Oncology Unit/outpatient
Infusion Center, John T. Mather Memorial Hospital
RENEE GILCHRIST, Cardiothoracic Nursing/Critical Care, North Shore
University Hospital
JAIR BENTOS-PEREIRA, RN Care Manager-Primary Care,
Northport VA Medical Center
SHARON SMITH-DALY, RN, South Brookhaven Health Center East
MARGARET O’DONNELL, Nurse Practitioner, South Nassau
Communities Hospital
MARIANNE RODRIGUEZ, Administrative Supervisor, St. Catherine of
Siena Medical Center
THERESA TOMKIN, Nursing care coordinator, Emergency Department,
St. Charles Hospital
SANDRA BASTIDAS, Clinical Nurse III, Emergency Care, St. Francis Hospital
YUN QUAN, Registered Nurse, Med/Surg, St. Joseph Hospital
STACY HEUSCHNEIDER, Nurse Practitioner, Stony Brook Medicine
PHYSICIAN HERO
KERRY FIERSTEIN, CMO/Pediatrician, Allied Physicians Group
FRANK DOWLING, Medical Director, Association for Mental Health
and Wellness
CHARLES DENNIS, Physician, Brookhaven Memorial
Hospital Medical Center
V. WILLIAM CARACCI, Physician, Good Samaritan Hospital
JOAN FARO, Chief Medical Officer, John T. Mather Memorial Hospital
JOHN DI CAPUA, CEO, North American Partners in Anesthesia
NEIL KIRSCHEN, Chief of Pain Management, South Nassau Communities
Hospital
NURSE EDUCATOR
GERALDINE MOORE, Associate Professor, Community Health Nursing,
Molloy College
MARY ELLEN LASALA, RN, NS, Associate Professor, Pediatrics,
Med/Surg & Community Health Nursing, Nassau Community College
BRENDA JANOTHA, Dept. Chair, Undergraduate Studies/Clinical Associate
Professor, Stony Brook University School of Nursing
THERESA CRISCITELLI, EDD, RN, CNOR, Assistant Director of Professional
Nursing & Education, Winthrop-University Hospital
JEFFREY WHEELER, DO, St. Charles Hospital
JAMES VOSSWINKEL, Chief of the Division of Trauma, Emergency Surgery
and Surgical Critical Care, and Medical Director of the Surgical Intensive Care
Unit (SICU), Stony Brook University Hospital
VOLUNTEER HERO
TERESE WEBER, Volunteer, Good Samaritan Hospital
JAMES LUNDGREN, Volunteer, Stony Brook University Hospital
DAVID BEISS, Founder, Team Butterfly
To attend the award breakfast and for more information, please contact Long Island Business News, by calling 631-737-1700 or via email: [email protected].
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21
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October 2014
HOSPICE ...
22
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Nassau Lawyer
Continued From Page 16
benefits. Actual eligibility for Medicare
coverage of hospice benefits requires
actual certification that the person is
terminally ill. To be considered termi-
nally ill for the purposes of Medicare
hospice coverage, an individual must
have a “medical prognosis that his or
her life expectancy is six months or less
if the illness runs its normal course.”9
Certification of a terminal illness is the
responsibility of the medical director of
the hospice from which the individual
Law Day 2015
Celebrating the 800th Anniversary of the
Magna Carta
Symbol of Freedom Under Law
AWARD NOMINATIONS REQUESTED
Liberty Bell
Award
Do you know someone in Nassau County whose efforts on behalf of law and
justice deserve the recognition symbolized by the Nassau County Bar
Association’s prestigious Liberty Bell Award? The Award honors an individual or
organization outside the legal profession whose community service advances
and strengthens the American system of freedom under law. With this award,
the Association recognizes efforts and achievements which meet some or all of
the following criteria:
+
+
+
+
+
promoting better understanding of the Constitution and the Bill of Rights;
encouraging greater respect for law and the courts;
stimulating a deeper sense of individual responsibility so that citizens
recognize their duties as well as their rights;
contributing to the effective functioning of institutions of government;
and fostering a better understanding and appreciation of the rule of law.
Peter T. Affatato
Court Employee of the
Year Award
NCBA is seeking nominations for the Court Employee of the Year Award, named
in honor of the “Dean of the Bar” Past President Peter T. Affatato, at its annual
Law Day celebration on April 30, 2015. The Award, to be presented at the
annual Law Day observance, recognizes a non-judicial employee of any court
located in Nassau County who:
• exhibits professional dedication to the court system and its
efficient operation, and,
• is exceptionally helpful and courteous to other court personnel,
members of the bar, and the many diverse people whom the court
system serves.
The Liberty Bell Award and the Court Employee of the Year Award will be
presented at the Association’s annual Law Day celebration, April 30, 2015.
Nominations should be submitted with supporting documents not later than
December 1, 2014 to:
Hon. Ira B. Warshawsky
Law Day Committee Chair
Nassau County Bar Association
15th & West Streets
Mineola, NY 11501
intends to receive hospice care, as well
as another physician, usually the person’s own personal physician.
One interesting thing to note is that
most people believe that when they
elect hospice they must give up their
relationship with their own physician.
In fact, hospice works with the person’s
own doctor and advocates for either
office or home visits, according to the
physician’s preference. Hospices work
very closely with primary care physicians and in fact consider the continuation of the patient-physician relationship to be a very high priority.
Finally, the person must elect
Medicare coverage of hospice care by
signing a statement acknowledging that
“certain Medicare services…are waived
by the election [of hospice care].”10 This
statement also memorializes the person’s acknowledgment that “he or she
has been given a full understanding of
the palliative rather than curative
nature of hospice care, as it relates to
the individual’s terminal illness.”11
The Medicare hospice benefit continues as long as the person continues to
meet the initial qualifications for eligibility for hospice. Simply put, a person
is no longer eligible for Medicare payment for hospice care if his or her condition has improved so that he or she no
longer meets the definition of terminally ill. Within the healthcare system,
people who no longer meet the definition of terminally ill are called “Hospice
graduates.”
If the person continues to meet the
definition he or she will be eligible for
two initial 90-day periods of hospice
care and an unlimited number of 60day periods after the initial 180 days.
At the beginning of each of these periods a physician must recertify that the
person is terminally ill and must
make sure that the documentation
supporting this diagnosis is in the person’s medical record. The impact of
this is that some people do in fact
receive hospice care for years –
although this of course is fact specific
and rather unusual.
Of the three steps outlined above,
the hardest for most people is renouncing all curative healthcare efforts before
Medicare will pay for hospice care. The
current Medicare payment system
requires Medicare beneficiaries to
accept their death before they can
receive hospice care. People always
have the right to terminate hospice
services and reinstate curative care – at
any time and for any reason.
Impact of the Affordable Care Act
The Affordable Care Act has two
provisions that indicate that this cur-
rent requirement may, in fact, change
in the future – so that the “either or”
nature of the election becomes a thing
of the past. Specifically, Congress is
exploring a model called concurrent
The current Medicare
payment system requires
Medicare beneficiaries to
accept their death before they
can receive hospice care.
care where people could receive both
curative treatment and hospice care –
rather than requiring people to waive
payments for curative treatment before
they can elect to have Medicare pay for
hospice services.
In Section 2302 of the ACA,
Congress immediately permitted children receiving health care coverage
through Medicaid and State programs
such as the Children’s Health
Insurance Programs to have hospice
care covered without their parents
waiving payment for curative treatment for their terminal illness12
In Section 3140, Congress authorized a three-year Medicare hospice concurrent care demonstration program
for adults. At the conclusion of the
demonstration program the Secretary
of HHS will provide an independent
evaluation to “determine whether the
demonstration program has improved
patient care, quality of life and costeffectiveness for Medicare beneficiaries
participating in [it.]”13 Within a
decade, the most troublesome requirement could be revised so that more of
us can benefit from the end-of-life services hospice provides.
Christin Paglen, Esquire, is a Vice President
for NS-LIJ’s Hospice Care Network. She is
also an Adjunct Professor at Stony Brook
Medicine, teaching Health Law in their Health
Technology and Management program.
1. Nat’l Hospice & Palliative Care Org. (NHPCO).
2. Jonathan Oberlander, Long Time Coming:
Why Health Reform Finally Passed, 29 Health
Aff., 1112 (2010).
3. Patient Protection and Affordable Care Act,
P.L. 111–148, 124 Stat. 119 (Mar. 23, 2010).
4. NHPCO, Family Evaluation of Hospice Services.
5. Medicare Payment Advisory Comm’n, Report
to the Congress: Medicare Payment Policy 141
(2010).
6. 42 C.F.R. § 406.10(a).
7. 42 C.F.R. § 406.12.
8. 42 C.F.R. § 406.13.
9. 42 C.F.R. § 418.3.
10. 42 C.F.R. § 418.24(b)(3).
11. 42 C.F.R. § 418.24(b)(2).
12. Kevin B. O’Reilly, Medicare to Test Allowing
More than Palliative Care in Hospice,
American Medical News (May 24, 2010).
13. Patient Protection and Affordable Care Act §
3140(b), 42 USC § 1395d note.
DID YOU KNOW?
NCBA Members can now place county wide legal notices in
the Nassau Lawyer.
Legal notices in Nassau Lawyer can only refer to:
LLCs ● LLPs ● Liquor Licenses ● Private Foundations
ALL notices including Bankruptcies & Foreclosures
can also be placed in Long Island Business News.
To place an ad contact:
[email protected]
or 631-737-1700
Nassau Lawyer
DOMUS ON THE LAWN ...
Continued From Page 1
who encouraged her to join the
NCBA the week before. “Mike suggested I get involved with the Young
Lawyers Committee,” she said, noting that she was looking forward to
her first meeting.
On the other hand, Hofstra law
student Christa Levko came to the
Bar to find intern opportunities locally on Long Island and New York City
before returning to her home in
Pennsylvania to practice civil rights
and non-profit law.
Christopher Czerwonka felt so
strongly about getting involved with
the Nassau Bar Association that he
VIEW FROM THE BENCH ...
Continued From Page 12
Evidence Rules, Judge Posner’s concerns were raised and there was discussion about a committee perhaps gathering information from practitioners and
the bench about his concerns. It is logical to believe that such a conversation
would eventually touch the New York
practice.
I believe that it would be a mistake
to alter our approach. Experienced trial
judges have considerable leeway now to
make reasoned rulings about whether
or not to admit statements offered as
excited utterances or present sense
impressions. Factors such as timeliness, stress, the startling nature of an
incident-all these factors allow a judge
ample discretion to refuse to admit
made the trip from Orange County.
Christopher was bitten by the legal
bug in high school, joining the student
team to argue a case as part of the
New York State High School Mock
Trial competition. As a law student
at Hofstra, he helped coach the
Hempstead High School team, and last
year he critiqued trials. “I have a special affinity for Nassau, and I want to
give back to the community,” he said.
Nevertheless, it is the long-time
friends of the Bar that solidify the
event's popularity. “I try to make
Domus on the Lawn every year. It’s
fun,” remarked Hon. John Reali, a
member since 1977. And profitable.
About a dozen years ago, John was
signing up for the Real Property Law
Committee when he met Jeff Naness,
hearsay that they believe to be untrustworthy and therefore not competent.
We also have at our disposal jury
instructions that can be given with the
testimony to explain to the jury the perception for which the testimony is being
offered. Additionally, I do not find it
particularly significant that there are
sociologic studies that conclude that
people can make up a lie in a split second and argue, therefore, that the
exception has no psychological validity.
Good practice dictates that modification
of the rules of evidence should not be
based upon sociologic/psychological
movements of the day. Such studies in
favor one day are often discounted
years later, then what?
In addition, I think those who distrust the exceptions are not giving cross
examination an adequate place in the
conversation.
Cross
examination
who was signing up for the
Employment Law Committee. Jeff
was looking for other solo and small
firm members as a support group to
help build business. From that meeting, the Association of Boutique Law
Firms (ABLF) was formed. About 20
attorneys in different practice areas
now meet monthly for breakfast at
the Bar and twice a year for dinner.
“We use each other as resources,”
Reali said. “We help each other with
legal questions and we are able to
refer cases to someone we know and
trust. We’ve become lifelong friends.”
At the annual event, the Association
Membership Committee takes the
opportunity to strengthen member
retention and to attract new members.
“Our committee seeks out and greets
remains a powerful weapon which
lawyers use daily in our trial courts to
establish, for example, motive to fabricate an excited utterance, ability to perceive, ability to articulate and on and
on. Nor do they possibly give enough
credit to the competence of jurors to discern weaknesses in such testimony. Of
course they are not perfect, but my
experience is that most often than not
jurors figure it out. They decide credibility and trustworthiness with every
witness and I don’t think that these two
exceptions present any real significant
difference. I think it is beyond question
that most 911 calls are legitimate. They
are significant pieces of evidence that
typically explain the police conduct that
follows. Juries deserve to hear it and
give it the weight they believe it
deserves.
The New York requirement of cor-
n
October 2014
n
23
Photos by Hector Herrera
new and potential members and introduces them to committee chairs, board
directors and other practitioners, to
make sure they are warmly welcomed
to the Bar Association,” noted Past
President and Membership Committee
Co-chair Marc Gann. This year, committee members Jackie Carway,
Deborah Kaminetzky, Linda Mejias
and Carolyn Wolfe helped make the
connections.
Adding to the festivity were
NCBA's industry exclusive Corporate
Partners including Baker Tilly, CBS
Insurance Group, Champion Office
Suites, Realtime Reporting, and the
newest Corporate Partner, Serenity
Limousine. Investor’s Bank and
Everest Abstract Services rounded
out the event sponsorship roster.
roboration is an improvement over the
Federal Rule, and if added to FRE 803
(1) and (2) is not objectionable in my
opinion. However, even without the corroboration, I believe the exceptions
have merit and can be applied sensibly.
See you next column.
1. 742 F. 3d 792 (7th Cit. 2014).
2. NYLJ, p.3. Col 1 (August 7, 2014).
3. US v. Boyce, 742 F. 2d at 796, citing 2
McCormick on Evidence _272 (7th ed. 2013).
4. Id., at 796, citing Lust v. Sealy, 383 F. 3d. 580,
(7th Cir. 2004)
5. Id., at 796, citing US v. Joy, 192 F. 3d 761 (7th
Cir. 1999) and US v. Weselea, 223 F. 3d 656
(7th Cir. 2000).
6. Id. at 800.
7. Id. at 801; citing Present Impressions cannot
live in the part, 28 Fla. State UC Revi 80) , 916
(2001).
8. US v. Boyce, 742 F. 3d 792, Supra.
9. 192 NY 470 (1980).
10. 80 NY 2d 729 (1993).
11. Id., at 736.
October 2014
Nassau Lawyer
NEEDS TRUSTS ...
24
n
n
Continued From Page 5
amount available to an individual
living in the household of another in
New York.
Ex. 4: Same facts as in Ex. 3
except here, M’s father pays $400 of
child support monthly. As M is over
18, the entire $400 child support payment is countable for SSI purposes,
and offsets the SSI payment dollarfor-dollar. As a result, instead of
receiving a monthly SSI check for
$744, M’s monthly stipend is reduced
to $344.
There are legal options available to
avoid the above scenarios, and to
ensure that child support payments do
not jeopardize a child with disabilities’
means-tested benefits. Attorneys representing such couples must be cognizant
of the interplay between child support
and means-tested benefits and the
available options in order better advise
their clients.
Supplemental Needs Trusts
A supplemental needs trust (SNT)5
is the most basic and crucial planning
tool for families of individuals with disabilities. SNTs may be established for a
loved one with chronic or severe disabilities. They allow family members or
others to set aside money for loved one
with disabilities without jeopardizing
government benefits. By law, SNT
funds are available only to supplement
(and not to supplant) government benefits, meaning funds can be used only for
those items that cannot be paid for
using government benefits.
There are two basic types of SNTs.
First party SNTs, also known as selfsettled or payback trusts, are funded
with the individual with disabilities’
own funds. In order to establish a first
party SNT, a number of criteria must
be met: (1) the individual must be
under 65 years old, (2) the individual
must be disabled as defined in the
Social Security act, (3) the trust must be
for the benefit of the individual with
disabilities, (4) the grantor must be a
parent, grandparent or legal guardian
of the individual with disabilities, and
(5) the trust must have a provision providing that state entities such as
Medicaid that expend funds on the individual with disabilities during his or
her lifetime must be repaid out of any
funds that remain upon the individual’s
death.
Third party SNTs are funded with
someone other than the individual with
disabilities funds. Grandparents, parents or friends who want to leave
money for use by an individual with disabilities can utilize an inter-vivos third
party trust.
Divorcing parties may consider
establishing an SNT to hold monthly
child support payments. The use of an
SNT is only recommended when a child
would otherwise qualify for government
benefits – if a child is under 18 and his
or her parents finances would prevent
the child from receiving government
benefits anyway, an SNT is not necessary and would place unnecessary
restrictions on the money. However, for
a child or adult with disabilities who
would otherwise be eligible for government benefits, assigning child support
payments to an SNT would allow for
child support payments while still
maintaining the child or adult’s government benefit eligibility.6 The assignment must be irrevocable.7 For purposes of SSI, child support is viewed as the
child’s money. Therefore, if the child
support will be assigned to an SNT, a
first party SNT with payback provisions must be established. The assignment can be made through court order,
or through a post-order agreement
between the parties.
Third party SNTs may be utilized as
part of divorce agreements as well. As
discussed previously, parties sometimes
agree to maintain life insurance on each
other’s lives, in order to ensure a surviving party will have necessary
finances in the event of the untimely
death of one of the parties. When a child
with special needs is involved, the parties may want to consider naming an
inter-vivos third party SNT as a beneficiary of the life insurance policy.
Other Issues related to Children
with Disabilities that Divorcing
Couples Should Consider
It is important to note a number of
other areas pertaining to children with
disabilities of which attorneys representing divorcing couples should be
aware.
Guardianship: Parties should
agree as to who will be appointed
guardian and successor guardians
when a child with special needs reaches
the age of majority.
Special Education Decision
Making: Parties should agree on which
parent will have the authority to make
decisions pertaining to the child with
special needs’ education.
Estate Planning: Parties may want
to agree on certain estate planning provisions regarding the child with special
needs. Depending on whether or not
inter-vivos SNTs have been established,
a testamentary SNT may be advisable.
SNTs and the Elderly or
Disabled Ex-Spouse
According to a recent New York
Times article, more Americans over the
age of 50 are divorced than widowed.8
For attorneys advising older divorcing
couples, it is important to realize that
Medicaid is the largest payer for nursing home care and community based
health care services in the country. The
goal of preserving Medicaid eligibility
should therefore inform the structure of
the divorce agreement.
Under New York Medicaid laws,
alimony received by a Medicaid beneficiary, regardless of whether that person
is disabled, will be viewed as income
and will be taken into consideration
when deciding whether he or she will
remain eligible for Medicaid services.
Moreover, for individuals applying for
nursing home Medicaid, there is a five
year look back period. Medicaid will
look at any transfers made within the
five year period preceding an individual’s application and if transfers above
LAW YOU SHOULD KNOW
LAW YOU SHOULD KNOW
LAW YOU SHOULD KNOW
the Medicaid threshold were made,
Medicaid will impose a penalty period
commensurate to the amount of money
transferred. During the penalty period,
an individual will be denied Medicaid
benefits and will be responsible to pay
for nursing home care out of pocket.
Older divorcing couples who do not
anticipate using Medicaid benefits
within five years can agree to a lump
sum payment of alimony. The receiving
party can conceivably quickly spend
down the money on real or personal
property purchases that are exempt
from Medicaid’s calculation of income or
resources. The risk inherent in this
approach is that if the transferor
requires nursing home Medicaid within
five years, Medicaid will impose a
penalty period commensurate with the
value of the alimony he or she paid.
Another option is to structure the
divorce settlement so that alimony
funds go directly to an SNT. Funds in
the SNT will be available to provide for
any need of the beneficiary that is not
met by Medicaid or other government
benefits. An SNT is beneficial with
regard to SSI as well, as according to
SSI rules any funds paid directly to a
trust as a result of a court order are not
considered income. While putting funds
in an SNT does limit what the funds
can be used for, for many older couples,
it may be the best route to preserving
eligibility for crucial means-tested government benefits.
Elana M. Simha is an associate attorney at
the Cuddy Law Firm P.C., where she focuses
her practice on special education law, special needs estate planning, guardianship and
trust administration. Ms. Simha can be
reached at [email protected].
Mordecai Y. Simha is the principal attorney at
Simha Law and is of counsel to the Cuddy Law
Firm P.C. Mr. Simha focuses his practice in
special education law and elder law. Mr. Simha
can be reached at [email protected].
1. See 42 USC § 1381 et seq.
2. In New York, the 2014 monthly limits are
$2,000 for individuals and $3,000 for couples.
3. If a valid rental and household agreement is
created, an adult with disabilities who lives at
home may still be considered liable for rent
and household expenses.
4. Program Operation Manual Systems (POMS)
SI 00830.420 Child-Support Payments.
5. EPTL § 7–1.12.
6. POMS SI 01120.200 G.1.d.
7. Id.
8. Roberts, Sam, Divorce After 50 Grow More
Common, September 20, 2013. URL:
http://www.nytimes.com/2013/09/22/fashion/we
ddings/divorce-after-50-grows-morecommon.html?_r=1&.
Hosted by: Kenneth J. Landau, Esq.
Shayne, Dachs, Sauer & Dachs, Mineola
on 90.3 FM WHPC
Resolving Attorney Fee Disputes
(eligible for CLE credit*)
PART 1*
Mon., Oct 20, 2014 • 4 p.m.
or Tues., Oct 21, 2014 • 1 p.m.
or Sun., Oct 26, 2014 • 7 a.m.
PART 2*
Mon., Oct 27, 2014 • 4 p.m.
or Tues., Oct 28, 2014 • 1 p.m.
or Sun., Nov 2, 2014 • 7 a.m.
Fifty Years in the Law
Mon., Nov 3, 2014 • 4 p.m.
or Tues., Nov 4, 2014 • 1 p.m.
or Sun., Nov 9, 2014 • 7 a.m.
*through the Nassau Academy of Law
For further CLE information call (516)747-4464 or visit www.nassaubar.org
on 90.3 FM radio or voicestream over the internet at www.ncc.edu/whpc
or download podcast at www.itunes.ncc.edu
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PROSECUTION ...
Continued From Page 3
Equal Protection – Intra-Class
Distinction
The intra-class distinction the
Holder/Ogden Memos have created
appears to violate the fundamental
tenets of the Equal Protection Clause.
By continuing to prosecute citizens in
states that have less severe sanctions
than under federal law, while at the
same time not prosecute citizens in
other states that have either decriminalized or drastically reduced the
penalties for marijuana-related offenses, the federal government seems to be
applying the federal criminal laws in a
disparate manner that is antithetical to
the purposes of the Controlled
Substances Act.
The “touchstone of due process is
protection of the individual against
arbitrary action of government.”13 That
is the essence of equal protection.
Hence, the Supreme Court has long
held that “[t]hough the law itself be fair
on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil
eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons in similar circumstances, material to their rights,
the denial of equal justice is still within
the prohibition of the constitution.”14
Accordingly,
in
Skinner
v.
Oklahoma,15 the Supreme Court struck
down on equal protection grounds a
compulsory sterilization statute based
on an arbitrary intra-class distinction
among similarly-situated offenders,
because:
Sterilization of those who have thrice
committed grand larceny with immunity for those who are embezzlers is a
clear, pointed, unmistakable discrimination. ... In terms of fines and
imprisonment the crimes of larceny
and embezzlement rate the same
under the Oklahoma code. Only
when it comes to sterilization are the
pains and penalties of the law different. The equal protection clause
would indeed be a formula of empty
words if such conspicuously artificial
lines could be drawn.
Skinner involved not only the right
to procreate, but also the basic fundamental “liberty” interest of “freedom
from bodily restraint.”16
Contradictory Marijuana Laws
Violate Equal Protection
Skinner’s teaching is that to comport
with due process and equal protection,
disparate application of the criminal
law among putatively similarly-situated offenders must be based on a governmental reason that substantially
promotes the legislative purpose.
Arbitrary, irrational or contradictory
purposes do not comport with due
process or equal protection.17 For example, in United States v. Robinson, the
court dismissed a charge of illegal wiretapping when the court found that law
enforcement arbitrarily enforced the
anti-wiretapping law against only private individuals and did not prosecute
government agents who violated the
law.18 In 227 Book Center, Inc. v. Codd
the court found that the government
was selectively enforcing obscenity laws
by enforcing those laws against adult
bookstores, but not enforcing the laws
against motion picture theaters that
showed sexually-oriented films.19
If the purpose of the federal criminal
laws is to deter specified unlawful con-
duct, then it is utterly irrational to not
prosecute marijuana offenders who
happen to live in Colorado, but prosecute offenders who live elsewhere. To
create parity in application of the
Holder Memos, the federal government
should entirely stop prosecuting domestic marijuana offenses in states whose
laws are less severe, and refer those
matters to the appropriate state
authorities.
Each state has its own laws governing the use of marijuana. With the
growing national consensus in favor of
reducing the penalties for marijuana
use – and in light of the draconian federal sentencing drug laws – the current
disparate application of the federal sentencing laws in marijuana cases may
now be constitutionally repulsive.
Richard M. Langone, a state and federal trial
and appellate practitioner, is the managing
member of Langone & Associates in Garden
City and the current Chair of the Appellate
Practice Committee of the Nassau County
Bar Association.
1. See Penal Law § 221.55 (C felony).
2. See 21 USC § 841(b)(1)(vii-viii) (albeit the federal Sentencing Guidelines recommend a
guideline range of 235-293 months, or approximately 24 years, See USSG Sentencing Table).
3. See Vijay Sekhon, Highly Uncertain Times: An
Analysis of the Executive Branch’s Decision to
Not Investigate or Prosecute Individuals in
Compliance with State Medical Marijuana
Laws, 37 Hastings Const. L.Q. 553 (Spring
2010) (including Alaska, California, Hawaii,
Maine, Michigan, Montana, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island,
Washington, and Vermont).
4. See Cal. Health & Safety Code § 11362.7, et. seq.
5. Cal. Health & Safety Code § 11362.7.
6. 21 USC § 841, et seq. A Google search by counsel
revealed a consensus among California marijuana growers that each plant can produce approximately 2 pounds of marijuana per season.
7. See Devlin Barrett, Associated Press, Attorney
General Signals Shift in Marijuana Policy,
March 19, 2009 available at:
http://www.nbcmiami.com/news/archive/ANTL
Attorney-General-Signals-Shift-in-MarijuanaPolicy.html; Josh Meyer & Scott Glover,
Medical Marijuana Dispensaries will no
Longer be Prosecuted, U.S. Attorney General
Says, L.A. Times, Mar. 19, 2009, available at:
http://articles.latimes.com/2009/mar/19/local/m
e-medpot19.
Nassau Lawyer
n
October 2014
Yam it up with colleagues and associates,
stuffing your pockets with
business cards of new contacts you are sure to meet.
pilgrimage to the
Carlyle at the Palace
1600 Round Swamp Road, Plainview NY 11803
on Tuesday, November 25, 2014 from 6-9 pm.
$60 per person, $70 at the door
payable to the NYSSCPA, Nassau Chapter
Donations of Canned goods would be
appreciated for Island Harvest
co-chairs
Planning Committee
25
8. See Attorney General Signals Marijuana Policy
Shift; Feds to Target Distributors Only When
They Violate Federal and State Law, Mar. 18,
2009 (emphasis added) available at
http://www.msnbc.msn.com/?id=29760656&.
9. 5 USC § 553.
10. See United States v. Canori, 737 F.3d 181,
183-84 (2d Cir. 2013).
11. Tapia v. United States, 131 S. Ct. 2382 (2011).
12. Cf. Nixon v. Administrator of General
Services, 433 U.S. 425, 443 (1977) (“in determining whether the [administrative] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on
the extent to which it prevents the ...
[Legislative] Branch from accomplishing its
constitutionally assigned functions”).
13. Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
14. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).
15. 316 U.S. 535, 541-42 (1942).
16. E.g., Paul v. Davis, 424 U.S. 693 (1976).
17. See also, Meloon v. Helgemoe, 564 F.2d 602
(1st Cir. 1977)(relying on Skinner, holding
that New Hampshire statutory rape law that
treated juvenile males differently than juvenile females violated equal protection because
statutory classification failed to further a substantial governmental interest), cert denied,
436 U.S. 950 (1978).
18. 311 F. Supp. 1063 (W.D. Mo. 1969).
19. 381 F. Supp. 1111 (S.D. N.Y. 1974).
Come Join Us for an
Evening of Neturkeying
Make the
n
Mail to: Kathleen Becker
Marcum LLP
10 Melville Park Road
Melville, NY 11747
Ph: (631) 414-4404 F: (631) 414-4001
[email protected]
__ Enclosed is my check for $_______,
at $60 per person, payable to
“NYSSCPA, Nassau Chapter”
26
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October 2014
SERVICE ...
n
Nassau Lawyer
Continued From Page 7
count, just 68 of the world’s 196 countries recognize
service of process under the Service Convention,
including the United States, China and the Russian
Federation.5
The Service Convention applies only to civil and commercial matters, and is the exclusive means for service
of process in the signatory state. 6 It offers one main
channel of service of process and several alternative
channels, with the goal of creating a simpler and timely
manner to ensure that defendants sued in foreign jurisdictions receive actual and timely notice of suit.
Under the main channel, the authority or judicial
officer competent under the law of the requesting state
– in the U.S., for example, an attorney – transmits a
translated copy of the document to be served to a central
authority in the foreign state, along with model forms
provided by the Conference, including a request for service, a certificate that service has been effectuated, and
summary of the document to be served.7 The central
authority of the receiving state then effectuates service
of process by: (i) informal delivery of the documents to
the defendant who voluntarily consents; (ii) any method
authorized by the receiving state; or (iii) a particular
manner requested by the applicant, unless that method
is incompatible with the laws of the receiving state.8 Not
every signatory country has the same requirements,
though. Some countries, such as Israel, require the foreign process to be executed by a judge or court clerk.
The alternative channels include service directly
through the receiving state’s diplomatic authorities.
There is no hierarchy among the various channels for
effectuating service under the Service Convention, however, the Service Convention allows states to object to
the use of some or all of the alternative channels.9 For
example, Germany objects to service of process by mail,
while Japan prohibits service of process by its judicial
officers and officials.10
The Service Convention offers an expedited and cost
efficient means to effectuate service process in signatory
countries with little or no involvement by the courts or
diplomatic channels. However, one must review the
Service Convention carefully to ensure compliance with
the specific country’s permitted methods of service.
Service By A Method Reasonably Calculated to
Give Notice – Letters Rogatory
Rule 4 recognizes that not every country participates
in the Service Convention and, so, it offers three alternative methods of effectuating service of process.11 The
most common of those alternatives is service through
the use of letters rogatory.
Simply stated, a letter rogatory, or letter of request,
is a “document issued by one court to a foreign court[.]”12
“In its broader sense in international practice, the term
letters rogatory denotes a formal request from a court in
which an action is pending, to a foreign court to perform
some judicial act.”13
While letters rogatory may be “utilized to serve
process on an individual or corporation within the foreign jurisdiction[,]” parties may also use letters rogatory
to take evidence from a specific person within the foreign jurisdiction.14
In either case, the process for obtaining the letter
rogatory from the court is the same. The applicant for
the letter rogatory submits a motion to the district court
explaining the reason for the letter rogatory and attaching the draft letter rogatory and copies of the documents
to be served that are translated into the applicable foreign language.15 Once the letter rogatory is signed by
the court, it is filed with the appropriate legal authority
in the foreign jurisdiction for that authority to direct
service of process.
As an alternative to the courts, one could obtain a letter rogatory through the Department of State; however,
that can take considerably longer to process.16
Just as with the Hague Service Convention, international treatises and laws attempt to expedite the letter
rogatory process and offer some assurance that a
request will be timely effectuated. For example, the
United States and certain Central and South American
countries are signatories to the Inter-American
Convention on Letters Rogatory and Additional
Protocol, or IACAP.17
In civil and commercial matters, IACAP, provides a
uniform application and form letter rogatory recognized
by the signatory countries, as well as a centralized
authority to process the requests for assistance.18
Similarly, under the Canada Evidence Act, the
Canadian courts permit a court outside of Canada to
serve letters rogatory upon a Canadian court.19
Why Not Hire a Process Server
in the Foreign Country
Although a request for assistance from one court to
another is “usually granted, by reason of the comity
existing between nations in ordinary peaceful times,”20
there is no guaranty that a foreign court will grant the
request. Moreover, even with a treaty, it may take an
extraordinary amount of time to effectuate service of
process.
Why not then hire a process server to personally
serve the summons and complaint in the foreign jurisdiction and, ostensibly, obtain the U.S. court’s jurisdiction over that entity? Indeed, Rule 4 specifically permits
service of process abroad by “delivering a copy of the
summons and of the complaint to the individual personally.”21
First, personal service of process that way may violate that country’s notion of sovereign immunity and its
specific laws.22 Consequently, Rule 4(f) only allows this
method of service so long as it is not “prohibited by the
foreign country’s law.”
Second, even if personal service is not prohibited by
the foreign country’s law, such service may render a
resulting judgment worthless because it will not be recognized in the foreign jurisdiction.23 Stated differently,
using an authorized method of international service (i.e.,
under the Service Convention or using letters rogatory)
helps ensure that the ultimate judgment obtained in the
United States will be recognized and enforceable
abroad.
Conclusion
Service of process abroad involves the interplay
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1. See FRCP 4(f). Under FRCP 4(h)(2), the means of personal service
upon a foreign business entity are the same as those for service
upon a foreign individual. For issues relating to service of process
upon a foreign state, or an agency or instrumentality of a foreign
state, see 28 USC §§ 1602 through 1607.
2. A treaty or letters rogatory are not essential to making effective
service upon defendants outside the U.S., as the court is authorized
to direct service in their absence. See, e.g., OS Recovery, Inc. v. One
Groupe Int’l, Inc., 2005 WL 1744986 (SDNY July 26, 2005) (direct
service by mail on party in Australia found effective, where
Australia had not ratified the Hague Convention and Australian
law did not prohibit service by mail).
3. See The Hague Conference on Private International Law, located at
www.hcch.net (last visited on April 1, 2014).
4. See FRCP 4(f)(1). See also Convention of 15 November 1965 on the
Service Abroad of Judicial and Extrajudicial Documents (“Hague
Service Convention”).
5. See The Hague Conference on Private International Law, Status
Table, located at www.hcch.net.
6. Article See Convention of 15 November 1965 on the Service Abroad
of Judicial and Extrajudicial Documents, Article I (stating it “shall
apply in all cases”). See also Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 698 (1988) (finding the Hague Service
Convention preempts inconsistent methods of service offered by
individual states).
7. See The Hague Conference on Private International Law, supra
n.5. See also Form USM-94.
8. See id., Articles 2 through 7.
9. See id., Articles 8 through 10.
10. See Hague Conference: Germany – Central Authority & Practical
Information; Hague Conference: Japan – Central Authority &
Practical Information. See also Hein v. Cuprum, S.A., 136 F.
Supp. 2d 63, 70 (N.D.N.Y. 2001) (finding that service of process by
first-class mail is ineffective).
11. See FRCP 4(f)(2)(A)-(C).
12. Black’s Law Dictionary, p. 916-17 (7th ed. 1999). See also 28 USC
§ 1781(b) (authorizing the District Courts to issue and receive letters rogatory).
13. 22 CFR § 92.54.
14. Lantheus Medical Imaging v. Zurich American Ins., 841 F. Supp.
2d 769, 776 (SDNY 2012) (citations omitted).
15. 28 USC § 1781. See also, Forms-Order to Take Evidence Abroad
(www.nysd.uscourts.gov/forms.php).
16. See Preparations of Letters Rogatory, U.S. Dept. of State (located
at www.travel.state.gov) (explaining that the diplomatic process
could take a year or longer to complete).
17. The text, and list of signatories to, the IACAP can be found at:
http://www.court.ca.gov/partner/documents/ea_
InterAmerican.pdf. Unlike the Hague Service Convention, IACAP
requires the signature of both the clerk of the court and the
Central Authority on its forms.
18. See Form USM-272 and 272A.
19. Canada Evidence Act, RSC 1985m c. C-5, § 46.
20. Lantheus Medical Imaging, 841 F. Supp. 2d at 777-78.
21. FRCP 4(f)(2)(c)(i). See also OS Recovery, Inc., supra n.2.
22. See, e.g., NML Capital v. Republic of Argentina, 03-Civ.-8845,
2013 U.S. Dist. LEXIS 17572 (SDNY Feb. 8, 2013).
23. See, e.g., Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 11-Civ.1529, 2012 U.S. Dist. LEXIS 8987 (SDNY Jan. 24, 2012) (noting
that, [u]pon attempting to enforce the judgment in Brazil, where
[the defendant] is located, [plaintiff] learned that it would be
unable to do so because a default judgment from a United States
court is not enforceable against a Brazilian defendant unless
process was served in that action by letters rogatory”).
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