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THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION
www.nassaubar.org
November 2014
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2014 Pro Bono FAIR
Free Assistance, Information and Referral
OF NOTE
NCBA Member Benefit – I.D. Card Photo
Obtain your photo for court identification
cards at NCBA Tech Center. Cost $10.
December 2, 3 & 4 • 9 a.m.-4 p.m.
EVENTS
WE CARE Gingerbread University
Saturday, December 6, 2014
Two Sessions
See Insert and page 18 for
registration information
82nd Wassail Celebration
Thursday, December 11, 2014
6:00 p.m. at Domus
See page 2 for details
Nassau Academy of Law
Bridge the Gap
Saturday & Sunday, January 24-25, 2015
at Domus
See page 13
WHAT’S INSIDE
FOCUS: EDUCATION LAW
TITLE IX: A Shield or a Sword? Page 3
Executive Sessions and the
Open Meetings Law
Autism, Special Education,
and the Law
Zero Tolerance Rules:
Constitutionally Bullet-Proof?
Page 3
Page 5
Page 7
Page 7
Judicial Review of Education Law §
3020-a Pre-Hearing Conferences
Page 9
GENERAL ARTICLES
Does the Increased Estate Tax
Exemption and Portability Mean
the Death of Estate Planning? Page 11
Taking the Fifth in a Civil
Deposition
Page 15
BOOK REVIEW
Licensed To Lie
Page 14
UPCOMING PUBLICATIONS
COMMITTEE MEETINGS
Thursday, November 13, 2014
Thursday, December 11, 2014
12:45 at Domus
‘All The Good
Hearts Are Here’
By Valerie Zurblis
WE CARE Senior Citizens’
Thanksgiving Day Luncheon
Thursday, November 27, 2014
11:00 a.m. - 1:00 p.m.
See page 18
Protecting Students with
Disabilities from Bullying
Vol. 64, No. 3
On October 23, a record number of
Nassau residents, with a wide range of
questions, came to the Nassau County Bar
Association to get answers at NCBA’s annual FAIR (Free Assistance, Information and
Referral). And, more than 60 volunteer
attorneys were ready and happy to help.
“I have always been devoted to give back
to the community,” said Joanne Fanizza,
who also volunteers at NCBA’s monthly
Senior Citizen Legal Consultation Clinics.
Looking around the room, she observed,
“All the good hearts are here.”
“What a great turnout!” noted Second
Vice-President Steven Leventhal, who also
consulted several residents on municipal
law issues at the FAIR. “Seeing all these
attorneys sharing their time and knowledge makes me proud of our profession.”
The attorneys met one-on-one to provide
individual assistance and referrals on just
about any issue including matrimonial and
family, health, insurance, special education, Superstorm Sandy, workers comp,
real estate, contracts and even immigration and patents. They did not provide free
FAIR Coordinators include NCBA Second Vice-President Steven J. Leventhal; Director of
Pro Bono Attorney Activities Gale D. Berg; Jeff Seigel and Susan Biller from Nassau/Suffolk
Law Services, NCBA First Vice-President Martha Krisel, and Lois Schwaeber from The Safe
Center LI.
Photo by Hector Herrera
legal service or take on cases. However,
they all shared the altruistic sentiments of
helping those in need.
Practicing matrimonial and family law
for more than 30 years, Judith Powell
enthusiastically supported the effort.
“There is a lot of information in my brain
cells that I want to share,” she smiled.
Echoing her sentiment, Lee Rosenberg,
past chair of the Matrimonial Law
Committee, added, “If it wasn’t for what we
do here, there would be a lack of resources
for people who need our assistance.”
NCBA’s FAIR was a first-time event
for new member Jacob Fleitman. A former
financial investigator who recently earned
his law degree, Fleitman had recently
See FAIR, Page 6
NCBA Provides Alternative Dispute Resolution Services
By Valerie Zurblis
The current backlog in our courts often
causes litigants to wait years before obtaining a final resolution, at which point the
cost to litigate may exceed the amount in
controversy, the relief may no longer be
needed, or the case may have lost a great
deal of its value. Around the country, recognition is growing that litigation is not a
panacea for all disputes. The result is an
ever-increasing use of alternatives to litigation, usually mediation or arbitration.
Mediation is a process where a neutral
third-party mediator works with the parties and their counsel to reach a mutually
agreeable settlement, and to formulate a
binding stipulation of settlement that may
be filed with the court.
In arbitration, the arbitrator hears evidence and receives testimony, much like a
judge, and makes a decision that is binding
on the parties.
The Federal Courts of the United States
and the Judges of the Supreme Court,
County Court and District of Nassau
County encourage arbitration and mediation as an alternative to court litigation.
To meet this growing trend toward alternative dispute resolution, the Nassau
County Bar Association provides an opportunity for attorneys and their clients to use
expeditious, time-saving and cost-effective
arbitration or mediation to resolve disputes
that might otherwise be litigated in the
courts.
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.
NCBA’s arbitration and mediation
services are available to the public as well
as to all legal professionals and can be
used for a broad scope of issues including
commercial, breach of contract, products
liability, labor, medical malpractice,
domestic relations, estates and trusts,
employment, and others. The panels of
arbitrators and mediators are highly
skilled and qualified attorneys, admitted
to the New York bar a minimum of 10
years and screened by the NCBA
Judiciary Committee. Arbitrator/Mediator
fees are $300 per hour.
Attorneys interested in using NCBA’s
mediation or arbitration services, or who
may wish to join the ADR Tribunal, may
contact Demi Tsiopelas at 516-747-4070 or
[email protected].
NCBA’s rules of arbitration and mediation, as well as application forms to join
ADR panels, are available online at
nassaubar.org > For the Profession >
Alternative Dispute Resolution.
November 2014
n
Nassau Lawyer
Wassail
Celebration
Come celebrate with us and experience the
“Tale of Wassail”
as told by President-Elect Steven J. Eisman
Enjoy Seasonal Music by
NCBA Past Presidents
Andy Simons and Joe Ryan
and delicious holiday fare!
Thursday, December 11, 2014
6:00 p.m.
$20 per person œ Children 12 & under free
Contact Special Events for more information
(516)747-4070 or [email protected]
Please bring an unwrapped toy to be distributed by
WE CARE to the less fortunate of our county.
Eat, Drink and Be Merry!
82nd Annual Wassail Celebration
In the cider-producing counties in the
South West of England, Wassailing refers to
a traditional ceremony that involves singing
and drinking to the health of trees in the
orchard in the hopes that they might better
thrive. The purpose of the tradition of
Wassailing is to awaken the cider apple
trees and to scare away evil spirits to ensure
a good harvest of fruit in the autumn.
The ceremonies of Wassail vary from village to village. Generally, a Wassail King
and Queen lead a processional while singing
a tune, travelling from one orchard to the
next. The Wassail Queen is then lifted into
the boughs of the tree where she places
toast, soaked in wassail from the Wassail
Bowl, onto the tree limbs as a gift to the tree
spirits. Afterwards, the townspeople march
through the streets, singing carols and offering the Wassail Bowl to their friends and
neighbors. Over time, Wassail came to
describe the liquor used on festive occasions,
notably around Christmas and New Year’s.
When we fill the Wassail Bowl at Domus,
each December, we are toasting to our collective good health. Led by the NCBA
esteemed Past Presidents, we share a drink
together and a wish for a healthy, productive
year. And, always a highlight of the
celebration, the President-Elect tells his or
her creative version of the “Tale of Wassail.”
This year Steven Eisman will regale us with
his adaptation.
There is one part of the Wassail
Celebration program at Domus that has
become a tradition. Each year a group of
NCBA members is honored during the ceremony by participating in the “carrying of the
Yule Logs.” The log carriers proceed down the
main aisle of the Great Hall, each carrying a
log. The logs are thrown onto the roaring fire
Photo by Hector Herrera
n
in the fireplace. This symbolizes the burning
of all the bad that has come to pass during
the prior year, opening the door to what we
are hopeful will be a happy and prosperous
new year. In the recent past we have honored
the Chairs of the WE CARE Advisory
Board, Past Deans of the Nassau Academy of
Law and the Past Chairs of the Lawyer’s
Assistance Program (LAP), to name a few.
There are many events at Domus
throughout the year, but this particular Bar
Association celebration is a true family occasion. Members are encouraged to bring their
families to enjoy the beautiful decorations,
spirited storytelling, traditional entertainment and holiday food. This year, the
Wassail Celebration will be held on
Thursday evening, December 11th at 6:00
p.m. The event is $20 per person and children 12 and under are free of charge. We do
request that you bring a new, unwrapped toy
to the event which is distributed by WE
CARE to the less fortunate in our county.
Come celebrate with us! Rejoice in the
simple pleasure of sharing a fun evening
with friends and colleagues.
For more information contact the Special
Events office at (516)747-4070 x226 or
[email protected].
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Nassau Lawyer
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Education Law
TITLE IX: A SHIELD OR A SWORD?
Colleges and universities have an ment has spent significant time moni- York Times that provided a detailed that the complainant made up the
obligation to make their campuses a toring claims of sexual assaults of portrait of how one institution allegedly entire accusation after her boyfriend
safe place for all students. It is getting women on campuses throughout the mishandled a sexual assault com- found out she was cheating on him with
the accused. The accused student is
more difficult to meet this obligation, country. As a result of this scrutiny, plaint.11
however, under Title IX.
institutions throughout the country
Many of these cases involve victims fully vindicated in criminal court.
Has the institution fulTitle IX of the Civil Rights
have been inundated with an alleging that their institufilled its Title IX obligations
Act of 1964 mandates “no
overwhelming amount of fed- tions displayed deliberate
in either scenario? The founperson in the United States
eral guidance.
indifference to claims of sexudation of Title IX is built on
shall, on the basis of sex, be
For example, in April 2014 al violence and failed to comequity, objectivity, and jusexcluded from participation
the White House Task Force ply with Title IX by not taktice for both the alleged vicin, be denied the benefits of,
to Protect Students from ing immediate or proper
tim and the accused.
or be subjected to discriminaSexual Assault released Not action in response a claim of
On one hand, institutions
tion under any education proAlone: The First Report of sexual assault. However,
are required, pursuant to
gram or activity receiving
the White House Task Force “reverse Title IX” claims,
Title IX, to maintain grievfederal financial assistance.”1
to Protect Students from where the accused files suit
ance procedures that provide
Sexual Assault.7 Shortly for failing to conduct a fair
While most notably known
for the prompt and equitable
for its role in attaining genthereafter,
the
U.S. and equitable investigation,
resolution of sexual misconder equality in college and
Department of Education’s have also become commonJames G. Ryan
Hayley B. Dryer duct complaints.13 Both the
university athletic programs,
Office of Civil Rights also place.12
Title IX actually covers far
released Questions and
complainant and the accused
Consider the following scemore than sports. Specifically, sexual Answers on Title IX and Sexual nario: a student arrives late one night must be afforded equal opportunities to
harassment and sexual violence, both of Violence.8 Congress is also taking at the campus security office and claims present evidence and have witnesses
which have gained recent focus in the action, and in July 2014, a bipartisan that she has just been date raped. speak on their behalf. This could lead
national spotlight, fall under the Title group of eight U.S. Senators unveiled University security personnel mobilize one to believe that the approach taken
IX umbrella.
legislation,
titled
the
Campus and early the next morning surround by the university in the above referSexual harassment and sexual vio- Accountability and Safety
the accused student’s dorm. enced scenario was improper insofar as
lence are considered forms of sex dis- Act, aimed at decreasing the
The student is cuffed and the accused student did not have the
crimination under Title IX if said con- number of campus sexual
walked out before hundreds opportunity to present his side of the
duct is “so severe, pervasive and objec- assaults.9
story. On the other hand, upon notice of
of student onlookers.
tively offensive that it effectively bars
The university investi- a claim of sexual misconduct, instituFor educational instituthe victim’s access to an educational tions, the obligations they
gates the claim by discussing tions are required to take prompt and
opportunity or benefit.”2 Institutions have toward students are
the matter with the com- effective action to eliminate a hostile
plainant and permanently environment and remedy the effects of
that receive federal funds are required, growing rapidly. To date,
expels the accused student any alleged sexual misconduct.14
upon notice of a claim of sexual harass- nearly 85 higher education
before affording him an
ment or sexual violence, to take prompt institutions have been named
In an effort to satisfy these obligaopportunity to present his tions, the U.S. Department of
and effective action reasonably calculat- by the Department of
side of the story or refute the Education has made clear that institued to end the misconduct, prevent its Education as colleges and
complainant’s allegations. A tions may impose interim measures,
recurrence and remedy its effects.3 universities that are currentCynthia A.
year later, the accused stu- such as arranging for alternative housInstitutions who fail to appropriately ly under investigation for
Augello
dent is tried in criminal court ing or academic accommodations for the
respond to a claim of sexual misconduct allegedly mishandling sexual
and convicted of raping the accused, even before they fully investican suffer serious consequences under misconduct complaints in
gate the alleged misconduct or render a
Title IX, such as the loss of federal fund- violation of Title IX.10 Their names complainant.
Now consider a slight variation of disciplinary determination.15 These
ing,4 an investigation by the U.S. have also been splashed across all types
Department of Education’s Office of of media and not in a favorable light. the facts: after a rather mundane cross- interim actions must always serve to
Civil Rights,5 and/or a federal lawsuit.6 For example, in July 2014 a story was examination at the criminal trial of the
See TITLE IX, Page 15
In recent months, the federal govern- featured on the front page of the New accused student, the jury determines
Protecting Students with Disabilities from Bullying
Bullying is not a recent phenome- have been passed such as the New York
non, but within the past 10 to 15 years State Dignity for All Students Act
the dialogue surrounding bullying has (DASA) to protect students who are the
changed, shifting from a right of pas- most vulnerable, including students
sage for every school aged
with disabilities.
child to a problem with lastStudents with disabilities
ing psychological, physical
are an extremely vulnerable
and academic effects on both
population and are more at
the victim and the bully.
risk of becoming victims of
The focus in the social
bullying and harassment
sphere, particularly after the
than their typically develop1999 Columbine High School
ing peers. Schools and school
shooting, moved to those
districts have not only a legal
effects and how to prevent
responsibility, but a higher
bullying in the future. Not
moral
responsibility
to
only are researchers, educarespond to disability harasstors, and parents shifting
ment as well. Students with
Saundra M.
their thought process to the
disabilities are already at a
Gumerove
prevention and eradication of
disadvantage when it comes
bullying, but the government
to appropriate social skills
and court system are as well.
and positive interactions with peers.
Lawmakers and Courts have joined Bullying, a negative peer interaction,
the dialogue by addressing the perva- leaves students with disabilities even
sive issue of bullying through protect- further behind and at an even greater
ing the classes of citizens research has disadvantage, both socially and acashown to be targets. In particular, laws demically, than their typical peers.
Programs (OSEP), the USDOE defines
bullying as “aggression within a relaAccording to stopbullying.gov, bully- tionship where the aggressor has more
ing is “unwanted, aggressive behavior real or perceived power than the tarthat involves a real or perget.”2 Usually students with
ceived power imbalance and
disabilities have a lower
the behavior is repeated or
social status than their typihas potential to be repeated
cal peers. This may explain
over time.” Bullying can lead
why disabled students are
to “disability harassment.”
three times as likely to be vicAccording to the United
tims of bullying.3
States
Department
of
The key to bullying is an
Education (USDOE), disabiliimbalance in power. Courts
ty harassment is “intimidahave addressed the issue of
tion or abusive behavior
confrontations between stutowards a student based on
dents where no actual or perdisability that creates a hosceived imbalance of power is
tile environment by interferPatricia Craig
present and generally coning with or denying a stusidered these incidents to be
dent’s participation in or receipt of ben- horseplay and not actual bullying.
efits, services, or opportunities in the
T.K. v. New York City Department
institution’s program.”1
In a 2013 Dear Colleague letter from
of Education
the Office of Special Education and
A seminal New York case out of the
Rehabilitation Services (OCERS) jointly with the Office of Special Education
See BULLYING, Page 17
What is Bullying?
4
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November 2014
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Nassau Lawyer
Recent Developments at the Association
Among the most important committees of the Association
is the Judiciary Committee, which performs a vital role for
the public, and the Lawyers Assistance Program, which performs a vital role for our members. Both had significant
events recently.
Judiciary Committee
The Executive Committee then determined a letter to the
Editor of Newsday was necessary to address the unfounded
allegations. The letter, published on October 23 and reproduced on page 6, put an end to the chapter involving this
candidate but does not resolve what the Association should
do if this year’s event was not an aberration driven by
unique political considerations but rather a change in policy
by the parties. The Association will explore this issue in the
coming months.
The Judiciary Committee determines the suitability of
prospective candidates for judicial office. It comprises 21
members, ten Republican, ten Democratic, and one not affilLawyer’s Assistance Program
iated with any political party. Members may not contribute
The Association’s Lawyers Assistance Program, or LAP,
to or otherwise support candidates for judicial office. It is led
provides support and counseling to attorneys struggling
by Chair Rosalia Baiamonte and Vice-Chair Marian Rice.
Prospective candidates must fill out a detailed question- with emotional, physical, and mental challenges. Led by
naire and submit to an interview by the Committee. For Chair Thomas Bucaria and Vice-Chair Mark Goidell, it comeach candidate, one Committee member is assigned to con- prises volunteer attorneys who attend monthly meetings,
duct an interview of each reference provided by the appli- staff the confidential, toll-free, 24-hour hotline (888-4086222), monitor referred attorneys, aid and councant in his/her questionnaire response, and
sel in the closing of law offices, and provide peer
reviews the applicant’s writing samples, while
support on an individualized basis. Its Director
another member is assigned to learn as much as
is Peter Schweitzer, CEAP (Certified Employee
possible about the candidate from sources not
Assistance Professional), who administers and
provided by the candidate. This may include
manages the program. LAP provides assessinterviewing attorneys and court staff, reviewing
ment, referrals, professional and individual supcomments from the Association membership,
port, mentoring, monitoring upon request, and
performing independent research, and even
on-going support facilitated through, among
observing a candidate in the courtroom.
other things, monthly 12-step meetings.
The candidate is then interviewed before the
LAP has been traditionally funded through
entire Committee. At the conclusion of the interthe New York State Office of Court
view, the Committee deliberates and then votes
Administration (OCA). That funding was lost
whether the candidate is “Well Qualified” or
several years ago due to budget cuts, leaving the
“Not Approved at This Time.” The candidate and
Association scrambling to find funds to pay for a
the candidate’s political party are notified immescaled-down program. During the past year the
diately of the determination. Candidates not
We Care Fund has stepped forward to provide
approved may seek reconsideration by the
John P. McEntee
annual funding for LAP of $40,000, which, comCommittee. If, after reconsideration, the candibined with funds from the Association, has
date remains unapproved, the candidate may
allowed LAP to provide services on a reduced basis.
appeal to the Board of Directors.
This year, OCA set aside $250,000 in its budget for
In a tradition, if not agreement, that some say has existed for more than thirty years, both major political parties Lawyers Assistance Programs throughout the state, and
have refrained from nominating for judicial office candi- invited grant applications for a share of these moneys. A
dates not found qualified by the Judiciary Committee. That group comprising Kate Meng, Henry Kruman, Peter
Schweitzer, Tom Bucaria, Mark Goidell, Keith Soressi, and
tradition ended this year.
On September 18, the Association learned that the Justice Peter Skelos worked hard to prepare a grant request
Republican and Democratic parties had cross-endorsed a for moneys that, combined with the financial support of We
candidate for Supreme Court Justice not approved by the Care and the Association, would allow LAP to offer a robust
Judiciary Committee. Although the Association’s by-laws range of services to our members.
I am pleased to say that these efforts succeeded, as the
mandate the issuance of a press release disclosing the
Committee’s findings, they vest the President with discre- Association was recently awarded a grant of $61,387 for
tion regarding the timing of the release and what informa- 2014-15, representing almost one-quarter of the available
tion is disclosed to explain the Committee’s determinations. funds. By comparison, the New York State Bar Association
After consultation with the Board of Directors, I elected to was awarded $52,068, while the Erie County Bar
issue a restrained press release that noted the vital role of Association was awarded $22,164. This grant will allow the
the Committee in educating the public about the qualifica- Association to restore and expand the availability of the
tions of candidates for judicial office and expressed the vital services LAP provides to our members. I am appreciative of the entire LAP grant working group for all of their
Association’s disappointment about the
hard work.
endorsement, but did not disclose
I am particularly thankful for the work of Justice
details about the reasons for the
Skelos on the issue of LAP funding. During the
Committee’s determination.
past few years, I have seen him work
On October 8, Newsday ran a
tirelessly for a solution to the lost LAP
story reporting the Association’s
funding. As a leader of the We Care
disappointment with the crossFund, he worked to craft an agreement
endorsement of an unqualified
for We Care funding of LAP. As an
candidate. On October 18, it ran
Associate Justice of the Appellate
a further story where the head
Division, he was instrumental in the
of the Republican Party alleged
restoration of OCA funding. And, as a
the Committee was “playing
games,” while unnamed Repubmember of the LAP grant working group,
lican “sources” alleged the
he was not content to merely offer encourCommittee found the candiagement but instead worked personally on
date unqualified because it is
successive drafts of the successful grant
“heavily Democratic,” even
application.
though it is comprised equalThere is no question in my mind that LAP
ly of Republicans and
would not be in a position to provide its
Democrats, and was retriinvaluable assistance but for the quiet yet
bution for her husband’s
effective leadership of Justice Skelos. And so,
affiliation
with
the
while the families of the lawyers helped will
Republican Party as a
likely never know it was through his leadership
labor union official, even
that resources were provided allowing their
though this fact was not
loved ones to get the help they need, I and others
disclosed to or discussed by the
at the Association know. And we are grateful.
Committee.
FROM THE
PRESIDENT
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.
Nassau
Lawyer
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 Editor of the Month
Kristina S. Heuser, Esq.
Education Law
Upcoming 2014-15 Focus Issues
December – Tax/ Commercial/
Bankruptcy Law
January – Labor and Employment Law
February – Criminal 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.
Rayne M. Sassower, 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
Graphic Artist
Scott Schoen
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
and at additional entries. Contents copyright
©2014. Postmaster: Send address changes to
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West Streets, Mineola, NY 11501.
Nassau Lawyer
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Education Law
Behind Closed Doors:
Executive Sessions and the Open Meetings Law
Anyone who has attended a meeting
An executive session must be conof their local school board may have vened by following a specific procedure,
noticed a strange procedure in which and may only be convened for a limited
the board of education members leave number of purposes, all of which are
the meeting to retire to a private room. individually set forth in the OML.
Although this may seem like a random Failure to comply with the requireor spontaneous event, it is actually a ments of the OML can have serious and
well-established procedural
costly consequences for those
device which allows public
who choose to ignore them.
bodies to discuss certain senSpecifically,
under
the
sitive subjects outside of pubstatute, any “aggrieved perlic view. Despite appearances,
son” may bring a special prothe occasions which public
ceeding against a public body
bodies may retire to a private
pursuant to Article 78 of the
meeting are strictly regulated
Civil Procedure Law and
by law, and may only occur
Rules to complain about
under certain circumstances.
alleged violations of the
Article 7 of the New York
OML. The statute of limitaState Public Officers Law,
tions for such a proceeding
also known as the Open
does not begin to run until
Laura A.
Meetings Law (“OML”), crethe day when the minutes of
Ferrugiari
ates important obligations for
the executive session have
public bodies when conductbeen made available to the
ing their meetings which cannot be public.4
ignored. One such obligation is for pubIf the court determines that a violalic bodies, such as boards of education, tion of the law has occurred, the court is
to conduct the business of the public empowered to choose from a menu of
body in an “open and public manner.”1 consequences. First, the court may
To achieve this purpose, the statute declare any action that was taken in
requires that “[e]very meeting of a pub- violation of the OML to be “void, in
lic body shall be open to the general whole or in part, without prejudice to
public.”2 However, the law also provides reconsideration in compliance with [the
that, under certain circumstances, a OML].”5 Second, the court may require
public body may transact business in a the members of the public body who vioproceeding closed to the public known lated the OML to participate in a trainas an “executive session.”3
ing session to educate them regarding
their obligations under the law.6 tive session are limited. Some of the
Finally, and perhaps most significantly, reasons specified in the OML include:
the court is empowered to impose a “matters which will imperil the public
financial consequence for failure to com- safety if disclosed;” “discussion regardply with the OML, by awarding costs ing proposed, pending or current litigaand attorney’s fees to the party who tion;” “collective negotiations pursuant
to Article 14 of the Civil
brought the successful chalService Law;” “the medical,
lenge.7
financial, credit or employIn order to avoid these conment promotion, demotion,
sequences of noncompliance,
discipline, suspension, dispublic bodies should undermissal or removal of a particstand the nuances of the
ular person or corporation;”
OML,
particularly
with
and the “preparation, gradregard to issues related to
ing or administration of
executive sessions. It is
examinations.”8
important that they understand what matters may be
The OML specifically
properly addressed in an
exempts certain types of
executive session, the procemeetings from its coverage.
Joseph P.
dure which must be followed
These include “judicial or
Lilly
when calling an executive sesquasi-judicial proceedings,
sion, and what a public body
except proceedings of the
is permitted to do after entering into an public service commission and zoning
executive session. To avoid the conse- boards of appeal;” “deliberations of
quences of a violation, public bodies political committees, conferences and
should consult with their legal counsel caucuses;” and “any matter made confito ensure that their executive sessions dential by federal or state law.”9 An
are noticed and held in compliance with example of a matter made confidential
the law. Another source for guidance on by federal or state law would be attorthis subject is the New York State ney-client communications. Such comCommittee for Open Government, munications are considered confidential
which issues and posts advisory opin- under CPLR 4503. Consequently, since
ions
regarding
the
OML
at the communication is confidential
www.dos.ny.gov/coog.
under state law, it is exempt under the
Under the OML, the reasons for
See MEETINGS, Page 16
which a public body may go into execu-
6
n
November 2014
n
Nassau Lawyer
FAIR ...
Continued From Page 1
moved to Long Island and joined
the NCBA at the beginning of
October. “I received an email two
days ago that they needed volunteer attorneys, so here I am,” he
said. “I joined the Bar for the networking opportunities to increase
business, but I volunteer here for
the community.”
The FAIR was founded by current NCBA President John
McEntee four years ago. It is coordinated by NCBA in cooperation
with The Safe Center LI and the
Nassau/Suffolk Law Services.
To promote the delivery of competent legal services to all who need them, without
regard for the ability to pay and without regard for the popularity of the cause.
– From NCBA’s Mission Statement
A few years ago, NCBA enhanced its pro bono
efforts by bringing together all of the local organizations that provide legal services in Nassau County. The
NCBA Pro Bono Committee was renamed Access to
Justice, and now includes representatives from NCBA,
The Safe Center LI, Nassau Suffolk Law Services,
Legal Aid Society of Nassau County, Assigned Counsel
Defender Plan, Hofstra and Touro law schools, and
Nassau County government. Recently, committee
chairs were asked to designate a committee member to
also serve as the liaison on the Committee.
So far, 18 committees have such liaisons, including
Alternative Dispute Resolution, Bankruptcy Law,
Conciliation, Construction Law, Criminal Court Law &
Procedure, Education Law, Family Court Law and
Procedure, Federal Courts, Hospital and Health, Labor
& Employment, Matrimonial Law, Real Property Law,
Sports, Entertainment and Media Law, and Veterans
and Military Law.
The Access to Justice Committee’s mission it to provide information on free and reduced fee legal resources,
coordinate legal services for the community and
strengthen the core of volunteer attorneys through education and professional development. Program volunteers do not take on cases.
Members who would like to become involved with
NCBA’s pro bono efforts may join the Access to Justice
Committee by signing up online or by calling the
Membership Department, 516-747-4070.
FAIR Volunteer
Attorneys
Michael Barcham
Maria Begley
Susan Biller
Maria Bradley
Gail Broder-Katz
Maxine Broderick
Usman Chaudhary
Ethan Choi
Alfred Constants, III
Ellen Cowie
Adam D’Antonio
Anne Dello-Iacono
John DiMascio, Jr.
Lewis Edelstein
Hon. Dorothy
Eisenberg
Joanne Fanizza
Brian Fishkin
Jacob Fleitman
George Frooks
Mary Giordano
Chris Haner
Warren Hoffman
Vrinda Jagan
Enid Klein
James Klein
Martha Krisel
Robert Kroll
Charles Lapp, III
Barry Lasky
Steven Leventhal
Jack Libert
David Lieser
Anastasia Lipato
John McEntee
Diane Memmoli
Stephannie
Miranda
Uwayne Mitchell
Tiffany Moseley
Sarah Nigro
Thomas O’Rourke
Constantina
Papageorgiou
Michael Pfeifer
Judith Powell
Jonathan Press
Jon Michael
Probstein
Jody Pugach
Marc Roberts
Anne Rosenbach
Lee Rosenberg
Seth Rosner
Monica Ruela
Hon. Lawrence
Schaffer
Terry Scheiner
Jessica Seligson
Rajat Shankar
Yulian Shtern
Elana Simha
Susan Slavin
Patricia Sokolich
Rita Stein
John Stellakis
Bob Sugarman
Andrew Thaler
Robert Vadnais
John Weber
Nassau Lawyer
n
November 2014
Education Law
Autism, Special Education,
and the Law
One of the main goals of any parent
There is a crisis in educating children with autism on Long Island – one in America is for their children to
that is brought to us by the Good receive a quality education. Parents
Intentions Paving Company. For those will uproot their families to move into
with children diagnosed as autistic the areas where educational opportunities
personal becomes political and in order are better for their kids. Even more
to insure their rights parents must important for any parent, however, is
organize and fight for them, not only in that their children be healthy.
Now imagine that your son or daughthe political arena but on the front lines
ter has been diagnosed with autism or
in each and every school district.
In writing about educating special any one of the variants of the disease
that are subsumed under
needs kids and the law it is
Autism Spectrum Disorders
important to start off by say(ASD). Autism is a complex
ing this is less about the law
neurobiological disorder that
per se than it is about how the
typically lasts throughout a
law is interpreted and impleperson’s lifetime. It is the
mented at the school district
fastest growing developmenlevel. School administrators
tal disability in the world.
on Long Island, often wellThe CDC reports that 1 in 68
intentioned, have come a long
children are diagnosed with
way, but in trying to better
autism, 1 in 50 school aged
address the needs of autistic
children, making it more
students, they are still failing
common than pediatric canto implement best educational
Bradley L.
cer, diabetes and AIDS compractices – a failure that
Gerstman
bined. It occurs in all racial,
many parents of these chilethnic and social groups, and
dren remain unfortunately
is four times more likely to strike in
unaware of.1
Put simply, there is a gap between boys than girls. There is no medical
the written statutes and the reality of detection or cure for autism.2
what goes on in the classrooms on Long
Ever since 1990, when the
Island. This gap inevitably leads to the Individuals with Disabilities Education
shortchanging of children who need Act (IDEA) Act was enacted, our counintensive educational services – and it try has recognized its obligations to
is precisely at this juncture where we as these challenged children.3 Passing a
lawyer/advocates belong in order to federal law, or any law for that matter,
insure that the law is implemented as it
See AUTISM, Page 20
was intended to be.
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
Zero Tolerance Rules:
Constitutionally Bullet-Proof?
Virtually every school district has authorities are responsible.”4 Thus, sturules concerning students’ conduct that dents engaged in prohibited but “off
simply will not be tolerated. These so- campus” speech or conduct are not
called “zero tolerance” rules were origi- beyond the reach of these rules.
nally developed in the 1990’s to address
While out-of-school suspensions
the ever-growing drug and
remove dangerous students
gun problem in schools.1
from schools, suspensions
pursuant to zero tolerance
Often found in the district’s
rules have increasingly come
code of conduct, these rules
under fire for several reasons;
concern speech or conduct
for example, “good” students
that is violent, otherwise
are removed from school
endangers the safety or welsometimes for relatively trivfare of others (e.g., possessing
ial infractions resulting from
weapons, alcoholic beverages
mistakes in judgment typical
or illegal drugs) or is deemed
of school-age children.5
indecent (e.g., nudity and sexRegardless of whether this
ual activity).2
criticism ultimately results
Most school districts’ codes
of conduct state that students
Lynn M. Brown in a change of policy, zero tolerance rules are now routineengaging in these activities
may be disciplined, up to and including ly enforced and, as set forth below, are
long-term suspensions from school. In relatively impervious to constitutional
fact, for the majority of students, these attack.
Disciplinary actions taken on the
offenses typically result in out-of-school
suspensions, often for weeks or months, basis of zero tolerance rules have been
without regard to the severity of the challenged on a variety of constitutional
infraction, the particular facts giving grounds, including under the First,
rise to the offense, or mitigating circum- Fourth, Fifth and Fourteenth Amendments. While it is well established that
stances.3
Further, school districts can and do public school students do not shed their
apply their zero tolerance rules to constitutional rights “at the schoolhouse
speech or conduct that happens off gate,”6 the rights of public school stuschool grounds to the extent such dents “are not automatically coextensive
“adversely affect[s] the educative with the rights of adults in other setprocess or endanger[s] the health, safe- tings.”7 As a result, for the most part,
ty or morals for pupils within the educaSee ZERO TOLERANCE, Page 19
tional system for which the school
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•
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More than 40 referring law firms trust
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ATTORNEY ADVERTISING
n
7
8
n
November 2014
n
Nassau Lawyer
IN BRIEF
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.
Member Activities
The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing
news, events and recent accomplishments
of its members. Due to space limitations,
submissions may be edited for length and
content.
Russell G. Tisman; Gregory S. Lisi;
Brian R. Sahn; Peter R. Mineo;
Steven G. Gaebler and Joseph P.
Asselta.
The Touro College Jacob D.
Fuchsberg Law Center recently named
Evan Krinick, managing partner of
Rivkin
Radler
LLP;
Jennifer
Garfunkel Wild, P.C. attorneys McLaughlin, partner at Cullen and
selected for inclusion in the 2014 New Dykman; and Mark Mulholland, manYork Super Lawyers – Metro Edition aging partner and senior member of the
include Chairman and Founding Litigation Department of Ruskin
Partner/Director Robert Andrew Wild, Moscou Faltischek, P.C., to the Law
Roy W. Breitenbach, Peter
Center’s Board of Governors.
M. Hoffman, Michael J.
Andrew Kimler, a partKeane, Doris L. Martin,
ner in the Litigation Practice
Leonard M. Rosenberg,
Group of Vishnick McGovern
Burton S. Weston, Hayden S.
Milizio LLP, was named a
Wool, Andrew L. Zwerling,
New York Metro Area Super
Kevin G. Donoghue, Eve G.
Lawyer. Mr. Kimler, who
Marianne
Koopersmith,
concentrates his practice in
Monroy, Christina Van Vort
commercial, corporate and
and Justin M. Vogel.
employment law, has coJohn C. Armentano of
authored two volumes of
Farrell Fritz, P.C. was recent“Criminal Defense Technily appointed to Touro Law
ques.” Avrohom Gefen, an
Center’s Institute on Land Hon. Stephen L. associate in the firm’s
Ukeiley
Use
and
Sustainable
Litigation Practice group,
Development Law’s advisory
was named a New York
board. Mr. Armentano earned his Juris Metro Area Rising Star by Super
Doctor at Touro Law Center and is a Lawyers. Mr. Gefen earned his Juris
contributor to the firm’s Long Island Doctor from Fordham University
Land Use & Zoning blog. James M. School of Law.
Wicks, a partner at the firm, was
Jennifer B. Cona, managing partnamed a Top 100 New York - Metro ner of Genser Dubow Genser & Cona,
Super Lawyer for the second consecu- was named a 2014 New York Metro
tive year.
Super Lawyer. Ms. Cona concentrates
The following Forchelli, Curto, her practice in Elder Law. She serves
Deegan, Schwartz, Mineo & Terrana, on the Executive Committee of the
LLP partners were selected as New Board of Trustees and the Legal
York Super Lawyers: Jeffrey D. Advisory Board of the Long Island
Forchelli, founder and managing part- Alzheimer’s Foundation. Ms. Cona was
ner; Robert H. Groman; James C. recently awarded the “Leadership in
Ricca; Jeffrey G. Stark, who previous- Law” award and named one of the “Top
ly served as a Justice of the New York 50 Most Influential Women in
Supreme Court (Nassau County);
See IN BRIEF, Page 22
COMMITTEE REPORTS
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
Matrimonial Law
Meeting Date 10/8/14
Chair: John DiMascio, Jr.
Angelakis, Esq., associate at Schwartz
& Ciesinski, LLP, who discussed the
recent Second Department case,
Lundon v. Lundon, 2014 NY Slip Op
06301 (2d Dept. 2014), allowing for the
utilization of a qualified domestic relations order to satisfy arrears.
An upcoming committee meeting is
scheduled to be held November 12, 2014.
The committee welcomed guest
speaker Honorable Jeffrey S. Sunshine,
Supervising Judge for Matrimonial
Matters of the Supreme Court, Kings
County, and Chair of the Statewide
Matrimonial Practice Advisory and Veterans and Military Law
Rules Committee, who discussed matrimonial issues that the statewide com- Meeting Date 10/21/14
Chair: Edward F. Cunningham
mittee is currently addressing.
A panel discussion was held with
Judge Terry Murphy of the
judicial hearing officers, refVeterans Treatment Court
erees and principal law clerks
spoke at the meeting. The
from the Nassau County
first Veterans Treatment
Supreme Court Matrimonial
Court in New York began in
Center, who had completed
Buffalo and the Nassau part
questionnaires
titled
works from that model. Since
“Navigating the Matrimonial
November 2011, when the
Parts of the Supreme Court,
court was established in
Nassau County – Five Things
Nassau, 62 veterans have
Every Law Clerk Wants You
graduated from the program.
to Know” and provided copies
Currently, there are about
of the Part Rules for their
45 in the program with six
respective judges. The followscheduled to graduate on
ing members participated: Michael J. Langer November 19. Veterans in
Judicial Hearing Officer
the program are assigned a
Geoffrey O’Connell; Marie
mentor who is a volunteer and has
McCormack, Esq., Court Attorney completed a training program. The
Referee; Thomas Speziale, Esq., Court mentor assists the veteran in getting
Attorney Referee; Scott Mandel, Esq.; the treatments and sessions required
Martha Haesloop, Esq.; Linda Mejias, by the program.
Esq.; Steven Maffei, Esq. and Katina
Our next meeting is November 18 at
Cokinos, Esq.
12:30. Happy Veterans Day to all!
The feature, “A New Case from a
New Face,” was presented by Irene
See COMMITTEE REPORTS, Page 22
Nassau Lawyer
Education Law
November 2014
n
Our Business Valuation Team
Covers All Bases
Judicial Review of
Education Law § 3020–a
Pre-Hearing Conferences
A tenured teacher brought up on templated by Mobil Oil.5
charges pursuant to New York
Thus, despite a bad ruling by a hearEducation Law § 3020–a may only be ing officer at a prehearing conference, in
disciplined or removed from his or her most cases there is no interim judicial
position if there exists “just cause” for recourse and the 3020–a hearing must
the charges. The teacher has the right go forward. A teacher forced to defend
to a hearing on the charges (a “Section charges improperly brought, or forced to
3020–a hearing”). Before the Section defend charges without important dis3020–a hearing, the hearing officer covery, will have no recourse if there is
must conduct a pre-hearing conference ultimately a final award in his or her
at which various issues will be favor. However, where there is an
addressed, including any motions (such adverse final award, a pre-hearing conas motions to dismiss)1 and discovery.
ference determination may be appealed
The hearing officer’s decisions on after the conclusion of the Section
these issues may impact the teacher for 3020–a process.
In denying review of an interlocutory
the remainder of the Section 3020–a
order in Mobil Oil, the court
hearing, most significantly if
did not state that an intera motion to dismiss the
locutory order may never be
charges is denied, or if crucial
appealed; merely that an
discovery is not allowed. Are
interlocutory order presents
the decisions of a hearing offino authority for a court to
cer on issues raised during a
intervene “at this stage of the
pre-hearing conference in a
progression of the arbitration
Section 3020–a hearing subproceeding.”6 Similarly, in
ject to judicial review? The
short answer is yes, but genJordan-Elbridge Cent. Sch.
erally only after the concluDist., the court denied intersion of the hearing.
locutory review of the hearIt is axiomatic that only
ing officer’s decision regardfinal awards are subject to Debra L. Wabnik ing discovery production in a
review under CPLR Article
Section 3020–a hearing but
75. A final award is considered the arbi- stated, “petitioners are correct that they
trator’s decision and final determination may ultimately be entitled to a review of
on all matters submitted.2 Interlocutory the arbitrator’s final award ... However,
or interim orders or awards which are the petitioners are not entitled to such
not final awards may not be appealed relief prior to a final determination and
during the course of an ongoing arbitra- award.”7
tion proceeding.
Indeed, in at least two cases issues
In Mobil Oil Indonesia v. Asamera raised during a pre-hearing conference
Oil, the petitioners sought review of the were later addressed in the context of a
arbitrators’ decision regarding which of review of the final award. In Matter of
two sets of arbitration rules applied to Morrell v. New York City Department of
the proceeding. The Court of Appeals Education, a teacher challenged the
held that it was without authority to final award of the arbitrator on several
review the decision because a final grounds, including that the hearing offiaward had to be made before a court cer erred when he denied the teacher’s
may intervene. The arbitrators’ decision discovery request during the pre-hearregarding which set of rules applied was ing conference.8 And in Cruz v. New
an interlocutory order, “involving only a York City Department of Education, a
limited procedural question ... [which] teacher sought to vacate the arbitration
in no way constitutes a final determina- award in an Article 75 proceeding, argution on the matters submitted…”3
ing in part that the hearing officer
This concept of finality has been improperly denied her request for an
applied in the context of Section 3020–a adjournment during her pre-conference
hearings. For example, the Fourth hearing.9 Although no abuse of discreDepartment has held that the court had tion by the hearing officer was found in
no authority to intervene when the either case, the hearing officer’s rulings
Department of Education appealed a made at the pre-hearing conference
hearing officer’s interim award granting were reviewed by the court.
a teacher’s motion for summary judgIt should be noted that courts provide
ment on 11 of 16 charges preferred in a great deference to the decisions of hearSection 3020–a proceeding. The court ing officers, and findings of facts in pardenied the Department of Education’s ticular. Combined with the high stanpetition to vacate the hearing officer’s dard that must be met to vacate or moddecision on the grounds that it was an ify an award in an Article 75 proceedinterim award and “not ‘a final and def- ing,10 this creates a fairly difficult case
inite award’ resolving the matter sub- for overturning the decision of a hearing
officer made during a pre-conference.
mitted for arbitration.”4
In a subsequent case, the Appellate
For the tenured teacher, this means
Division, Second Department permitted proper steps must be taken to insure
review of a hearing officer’s decision that objections to a hearing officer’s
granting a teacher’s motion to dismiss decisions throughout the Section
one of three charges preferred against 3020–a hearing, including the pre-hearhim as time barred. The court again ing conference, are preserved for review.
examined the finality issue, although it The pre-hearing conference in a Section
differed with the Fourth Department 3020–a hearing is recorded and then
and characterized the award as “final as transcribed. Hearing officers will, howto that charge,” rather than the type of ever, hold telephone conferences with
“very limited procedural question” conSee HEARING, Page 20
n
There are a number of reasons to know the value of a business, estate or someone’s assets.
Whether it’s for litigation, to negotiate a sale or merger, secure credit, settle a dispute,
determine tax liability, or a host of other reasons — our valuator’s mission is always the
same...to use professionally accepted methods to arrive at a well-reasoned and defensible
estimate of value. So if your accountant doesn’t know fair value from fair market value,
give us a call. Isn’t it time you made Israeloff, Trattner & Co., part of your team?
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212.239.33OO 516.24O.33OO
Visit us on the web at www.israeloff.com
CALL FOR NOMINATIONS
The Nominating Committee welcomes applications
for nominations to the following
Nassau County Bar Association
offices for the 2015-2016 year:
q President-Elect
q Vice-President
q Treasurer
q Secretary
Applications are welcome for nominations to serve on the
Nassau County Bar Association Board of Directors. There
are eight available seats, each for a three year term.
The Nominating Committee invites applications for nominations to the
following offices of the Nassau Academy of Law for the year 2015-2016:
Dean
Associate Dean
Assistant Dean (3)
Treasurer
Secretary
Counsel
NCBA members interested in applying for any of the above
nominations, or in submitting suggestions for such nominations,
are invited to submit such information to:
Peter J. Mancuso, Chair, Nominating Committee, NCBA,
15th & West Streets, Mineola, NY 11501 or
email: [email protected].
Deadline for all nominations:
January 31, 2015
9
10
November 2014
n
n
Nassau Lawyer
PRO BONO ATTORNEY OF THE MONTH
Meaghan Korson
By GAIL BRODER KATZ
The Safe Center LI (formerly Nassau County
Coalition Against Domestic Violence) is proud to
introduce you to Meaghan Korson, the Nassau
Lawyer Pro Bono Attorney of the Month. Ms.
Korson is a cum laude graduate of New York
University and received her juris doctor from
Nova Southeastern University Shephard Broad
Law Center in 2007. She has spent most of her
professional career working in the Private
Investment Funds Group at Ropes & Gray LLP,
assisting clients with establishing and operating
various private investment funds, including private equity, secondary and funds of funds. While
she thoroughly enjoys her corporate work,
Meaghan decided to take approximately six
months to devote herself to pro bono work.
Meaghan sought to learn something new, an
area of law with a more personal aspect to it
and give back to her community at the same
time. As a law student. she completed a mediation fellowship working with children and families as part of the juvenile diversion program
for juveniles arrested for misdemeanors, which
piqued her interest in learning more about
Family Law. Fortunately for our clients, she
decided to perform her volunteer work at The
Safe Center LI (TSCLI).
She attended TSCLI trainings, studied the
manual prepared for our pro bono attorneys,
worked with our in-house attorneys and then
handled her own caseload. She had direct client
interaction – from the initial consultation, the
drafting of the necessary documents and representation in both the Nassau Family and
Supreme Courts. She served as pro bono counsel
on a variety of family law matters, including
Orders of Protection, custody and visitation, support, and matrimonials. While primarily dealing
with Family Law issues, she learned just how pervasive domestic abuse is throughout all areas of
law and all segments of the community.
When asked to describe her pro bono experience, she stated “I cannot say enough wonderful
things about The Safe Center LI. My time there
allowed me to give back to the community, but at
the same time develop my knowledge and skills in
a new and different area of the law. The attorneys
and staff at the office were always ready and willing to help me and offer mentorship. In the end, I
think that my pro bono work for The Safe Center
LI made me a better person – and therefore a better attorney. “
F R
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Along with her volunteer work at TSCLI,
Meaghan immersed herself in the Nassau legal
community. She joined the Nassau County Bar
Association and the Women’s Bar Association and
enjoyed participating in the events of both organizations. Meaghan plans to maintain her ties with
The Safe Center and the bar associations.
Meaghan’s ‘six months’ turned into a full year
with TSCLI providing over 1,250 hours of volunteer work to the neediest of clients. Her presence
helped to ease the heavy case load of TSCLI attorneys and, therefore, enable it to serve even more
clients. On her return to Ropes & Gray in August
of 2014, she brings her new skills to her ‘old’ practice and is equipped to recognize the signs of
domestic abuse and what to do about it. We are
grateful for all her hard work and commend her
commitment to pro bono work – Ms. Korson is
truly deserving of this recognition as the Nassau
Lawyer Pro Bono Attorney of the Month.
Gail Broder Katz, Esq. is the Pro Bono Project Coordinator
for The Safe Center LI (formerly Nassau County Coalition
Against Domestic Violence.) She can be contacted at
GBroderKatz@ tscli.org or 516-465-4700 for information
about the Project and how you can help,
We Make
Bonding Simple
Experience,
Competence,
Results.
Call us at
1-877-266-3798
or visit us at www.jaspersurety.com
Nassau Lawyer
n
November 2014
n
Does the Increased Estate Tax Exemption and
Portability Mean the Death of Estate Planning?
Now that the federal estate tax with the maximum estate tax exempexemption equivalent is $5,340,000 tion amount available on the date of
($10,680,000 for married taxpayers) death of the first spouse, to protect
and portability has been made a perma- against the loss of that exemption.
nent part of the Internal Revenue Code, Today, many planners have changed
many commentators have declared the their wills to take advantage of portadeath of estate planning. As Mark bility and avoid the use of the credit
shelter trust. While portabilTwain once stated, “The
ity provides simplicity (somereport of my death has been
thing that is desirable to
greatly exaggerated!” That
many clients) it is not a
statement also applies to
panacea.
estate planning.
While our father’s estate
There are tax and non-tax
planning may not be what is
elements to estate planning.
necessary today, there are a
With the increased exemption
number of factors that must
amount and portability there
be considered in making the
are still tax considerations
credit shelter trust/portabilithat come into play, even in
ty decision. Today the value
estates that are below the fedof a married couple’s estate,
eral exemption amount.
Robert Katz
their respective ages, their
Obviously, the non-tax issues
respective health and the
are still relevant regardless of
New York State estate tax must be facthe exemptions that apply.
tored in to the decision.
Tax Considerations
Estates under $5,340,000: These
The American Taxpayer Relief Act of are the estates for which portability was
2012 (ATRA) made portability perma- designed. However, if the clients are
nent and increased the estate and gift young and in good health, the planner
tax exemption amount. For gifts made must give consideration to their potenand decedents dying in 2014 the exemp- tial asset accumulation. Portability is
tion amount is $5,340,000. It will be still the appropriate approach as long as
inflation adjusted annually. This means the clients are closely monitored as they
that a married couple can avoid the fed- accumulate their assets.
eral gift and estate tax if their combined
One problem that these estates may
wealth does not exceed $10,680,000.
face relates to the New York State
Traditionally, wills have provided a Estate Tax. The New York State
credit shelter trust that was funded exemption is lower than the Federal
11
exemption. Therefore, as long as the $3,000,000) consisting of real estate
clients have assets in excess of the New owned as tenants in common. On the
York State exemption amount a New husband’s death the credit shelter trust
York State credit shelter trust should will be funded with his half of the real
be established. New York State does not estate value at $4,000,000. The credit
recognize portability and the failure to shelter trust will get a step up in basis
create a credit shelter trust for the New from $1,500,000 (one-half of the cost
basis) to the $4,000,000 fair
York State exemption will
market value of the property
create a larger estate tax on
on the date of his death.
the death of the second
Assume that when the wife
spouse. (See the discussion,
dies the value of the property
below, for a summary of the
in the credit shelter trust is
changes made to the New
$5,200,000. The children will
York State Estate and Gift
inherit that property with a
tax made by the 2014-2015
built-in income tax gain of
Budget Bill)
$1,200,000.
Estates
between
If portability was used,
$5,340,000 and $10,680,000:
instead of the credit shelter
For these estates portability
trust, on the husband’s death
remains a viable option. That
Neil D. Katz
the wife will receive his propbeing stated, the planner
erty with an income tax
should place more focus on
the age of the clients and the potential stepped-up basis of $4,000,000. Upon
asset growth. For clients whose wealth her death, if she still owns that properis closer to the $10,000,000 threshold, ty, there will be a second step-up in
the utilization of a credit shelter trust basis to the value on her date of death
will remove all of the growth in the ($5,200,000). Therefore, the children
value of the assets placed in that trust, will inherit this property with no builtfrom the estate of the second spouse to in income tax gain. In addition, as a
die. However, with capital gains rates result of portability she will have a fedincreasing and the potential of no feder- eral exemption amount of $10,680,000
al estate tax for couples in this bracket, (without taking into account inflationan important factor to be considered is ary adjustments).
The decision as to whether credit
“step-up” in tax basis for income tax
shelter planning or portability is preferpurposes.
Example: Husband and wife have an
See ESTATE PLANNING, Page 22
estate of $8,000,000 (Cost basis
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November 2014
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Nassau Lawyer
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Nassau Lawyer
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NASSA
ASSAU
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PHIL
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_____________________
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_______________________
_____________________
Tuesday,
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G
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Robert
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Malito,
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G
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Bra
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Bradley
Gerstman,
G
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hwartz & Malito
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Gerstman
Schwartz
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INTRODUCTIONS
NTRODUCT ONS
Steven JJ. Eisman,
Eisman Esq
Steven
Esq.
Abrams Fensterman
Fensterman Fensterman
Fensterman eett aal
Abrams
Lake Su
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2 Credits
Credits Ethics
Ethics
________________________________
________________________________
Tuesday,
Tuesday, December 2
5:30-7:30 p.m.
p.m.
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SPEAKERS
PEAKERS AND PANEL MEMB
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Kevin Kearon,
Kearon, Esq
Esq..
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LP
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College
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MODERATOR
ODERATOR
Griffin, Esq.
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7
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13
BRIDGE-THE-G
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AGISTRATES
ISTRATES
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Hon. Diane M
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Elizabeth A. Bl
oom
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illiams
Hon.
Miller
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iller
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ovember 113
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14
n
November 2014
n
Nassau Lawyer
BOOK REVIEW
By JOSEPH W. RYAN, JR.
Licensed to Lie
By: Sidney Powell
Brown Brooks Publishing Group, 2014
Hardcover, 456 Pages
List Price: $35.00
ISBN-13: 9781612541495
Photo by Hector Herrera
Licensed to Lie, by Texas attorney
Sidney Powell packs a loaded gun aimed at
federal prosecutors who treasure winning
high profile cases over their ethical and
legal obligation to turn over evidence
favorable to defendants-- evidence that
might jeopardize their victories that catapulted their careers into the highest levels
of the White House and Department of
Justice. This book should be a required onthe-job reading for prosecutors, as well as
judges, lawyers and those concerned with
the integrity of the criminal justice system.
Billed as “Exposing Corruption in the
Department of Justice,” Powell – a highly
regarded and seasoned appellate practitioner in the Fifth Circuit – rests her case
on the prosecution of the U.S. Senator Ted
Stevens, a World War II hero and legend in
Alaska whose jury verdict of “guilty” was
vacated “with prejudice” because of the
prosecution’s failure to turn over to
Stevens defense team evidence of his innocence. Building on the Stevens case, Powell
exposes the misdeeds of the Enron Task
Force prosecutors for their “annihilation”
of the prestigious accounting firm Arthur
Andersen LLP and the wrongful prosecution of officers of the investment firm
Merrill Lynch. Andersen was the accounting firm for Enron, and Merrill Lynch, a $7
million investor in one of Enron’s “energy
trading” ventures.
The Enron Task Force was born out of
Enron’s declaration of bankruptcy in
December 2001, which caused havoc
throughout the stock market and inflicted
tremendous financial pain upon investors
and the economy. Enron, the seventh
largest company in the United States with
a $400 billion dollar annual revenue based
in Houston, Texas, was suspected of “cooking its books” in order to mislead the
investing public as to its precarious health.
President George Bush vowed “to ferret
out and prosecute ‘those white-collar
crooks.’” To fulfill the President’s directive,
the Department of Justice, according to
Powell, assembled a team of the most
aggressive prosecutors it could find. One
member of the team later rose to counsel in
the President Obama White House, and
another, to Deputy Director and Counsel
to the FBI.
Powell opens the book with a chilling
account of how a federal prosecutor in the
Sen. Stevens case committed suicide at 37
years of age. He went to the basement of
his home, slashed his left wrist with a
razor blade, and watched the blood run
down his hands and – when he realized it
would take more – hung himself with a
heavy-duty power cord. This occurred
while he was a target of an investigation
ordered by United States District Judge
Emmet G. Sullivan (District of Columbia)
to determine whether he and others of the
prosecution team should be charged with
contempt for violating the Judge’s prior
orders to produce Brady material that
favorable to Senator Stevens defense.
Throughout the book Powell extols Judge
Sullivan for his courage and proactive
steps to prevent, as well as sanction, pros-
ecutorial misconduct.
“Corruption,” Powell claims, is the willful non-disclosure of evidence and information favorable to the defendants by ambitious federal prosecutors who bear the
highest academic credentials and, seizing
on their “victories,” ascended to the highest positions in our government. Described
as a “legal thriller,” Powell offers a rare
insight to the pain impacted on the personal lives of the defendants and their
families – including one defendant who
was forced to serve jail time in a maximum
security prison after the prosecution persuaded the Court of Appeals to deny a stay
of surrender before the Fifth Circuit would
later acquit the defendant for insufficient
evidence.
Powell’s theme seems to be fully supported by court decisions. The Supreme
Court threw out the Arthur Andersen conviction because, according to Powell, the
same federal prosecutor at the Enron Task
Force had induced the Andersen trial
judge to offer a jury instruction that eliminated the essential element of “criminal
intent.” Powell shows the adverse impact
of the prosecutors’ misdeeds: Arthur
Anderson “was destroyed the minute it
was indicted” and inflicted an “unnecessary toll” upon 85,000 Anderson families.
The Ninth Circuit ordered new trials in the
prosecution of two Alaska state legislators
because the same prosecution team in the
Senator Stevens’ case suppressed favorable evidence concerning the credibility of
See LICENSED TO LIE, Page 17
Nassau Lawyer
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November 2014
n
Taking the Fifth in a Civil Deposition
Our office represented a petitioner in a discovery
proceeding (i.e., replevin) in Surrogate’s Court. During
the deposition of a witness believed to be in wrongful
possession of estate assets, the following Q & A
exchange occurred:1
Q: In your capacity as a manager, after Mr.***died,
do you know where the proceeds from sales by
the store were deposited?
A: Yes.
Q: Did they continue to be deposited in the ***
Savings Bank account of ***?
A: They were from the time of his death until
December, end of December 2008.
Q: Did a change come about at the end of December
of 2008?
A: On advice of my counsel, I decline.
Q: You decline to answer?
A: To answer the question.
Q: Would you or your counsel state what the basis
is for the refusal to answer?
A: (Response provided by counsel for ***) My client
is exercising his Fifth Amendment privilege
against self-incrimination.
Due to the critical nature of the line of questioning,
the deposition was suspended pending a ruling.
In a subsequent motion, we asked the court: (1) to
direct the resumption of the examination; (2) to direct
the witness to answer the question posed; and (3) for
the alternative relief of an in camera hearing before
the court to determine whether the privilege against
testifying was properly asserted.
The underpinning of the motion was 22 NYCRR §
221.2, governing witness refusals to answer:
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in
an order of a court, or (iii) when the question is
TITLE IX ...
Continued From Page 3
minimize the burden on the complainant.16 For
example, the complainant generally should not be
compelled to move out of her dorm in order to avoid
contact with the accused.
These competing principles raise a question:
how is an institution supposed to balance its obligations under Title IX to timely respond to a claim
of sexual misconduct and provide well-established
protections for the complainant, while at the same
time, afford proper due process rights to the
accused student?
The stakes are high all around as both the courts
and the Department of Education struggle to find
an answer to this question. In the meantime, and at
an increasing rate, students who have been accused
of sexual misconduct are suing their institutions
under Title IX, while complainants use the same
statute to sue their institutions for allegedly failing
to properly investigate claims of sexual assault.
Accused students have already filed claims
against Vassar College, the University of Michigan,
the University of Massachusetts Amherst, Duke
15
plainly improper and would, if answered, cause sigthe assertion of his Fifth Amendment privilege in
nificant prejudice to any person. An attorney shall
response to questions posed to him during his deposinot direct a deponent not to answer except as protion, by opposing counsel.
vided by CPLR Rule 3115 or this subdivision. Any
A witness in a civil proceeding was not entitled to
refusal to answer or direction not to answer shall be
have questions submitted to him in advance in order
accompanied by a succinct and clear statement of
that he might decide which questions to answer and
the basis therefor. If the deponent does not answer
which questions he would decline to answer on the
a question, the examining party shall have the right
basis of his right against self-incrimination.8
to complete the remainder of the deposition.
In an interesting twist on the prevailing doctrine in
The witness invoked the privilege
another case, an examining party at a depoagainst self-incrimination in his refusal to
sition sought to compel the witness’ testimoanswer. The attorneys in the room knew
ny by seeking a protective order from the
that a refusal was usually based on the
trial court purporting to limit access by the
privilege against testifying as to confidenprosecutor’s office to the compelled testimotial communications, such as attorneyny. The court held that the testimony could
client privilege. It was a rare event when a
not be compelled on that basis, since it
witness “pled the Fifth” in a routine civil
would constitute an improper contravention
action. The U.S. Constitution does not ordiof one’s Fifth Amendment rights. The pronarily appear in court in proceedings to
tections of a civil protective order, said the
recover money only.
court, “are not co-extensive with those of the
I say ordinarily, because sometimes it
Fifth Amendment.9
does. Actually, New York State has its own
Finally, the U.S. Supreme Court weighed
counterpart to the Fifth Amendment priviin on the issue in Pillsbury Company v.
Donald J.
lege against self-incrimination, containing
Conboy, in holding that a deponent’s civil
Farinacci
identical language. Its scope is not particudeposition testimony, repeating verbatim or
larly narrow – for the privilege will apply even when closely tracking his prior immunized testimony is not,
prosecution is merely possible, though not definite.2 without duly authorized assurance of immunity at the
Under CPLR 4501, however, a competent witness is time, “immunized testimony” within the meaning of
not excused solely on the grounds that the answer its use in the immunity statute and, therefore, may
may tend to establish that he owes a debt or could be not be compelled over a valid assertion of deponent’s
subject to a civil lawsuit. Nevertheless, he is not Fifth Amendment privilege.10
required to give an answer tending to be self-accusaIn our office’s case, the deposition was ordered
tory of a crime.3
resumed and the witness directed to answer the quesMoreover, the answer, to be privileged, must tend tions previously posed. The decision to “take the Fifth”
to prove that the witness is guilty of a crime of which in a civil suit should be weighed very carefully. If the
witness is not yet a respondent, taking the Fifth may
he might be convicted.4
While the mere possibility of a conviction is enough send a clear signal that he should be.
to sustain the privilege, this is subject to a rule of rea- Donald J. Farinacci is the Estates and Trusts Partner at the
son. If the possibility is so remote as to be out of the Mineola law firm of Bee Ready Fishbein Hatter & Donovan,
ordinary in a court of law, it provides an insufficient LLP, 170 Old Country Road, Suite 200, Mineola, New York
basis for raising the privilege.5
11501 (516) 746-5599. He is also a former chair of the Nassau
A witness is not permitted to refuse to answer per- County Bar Association Surrogate’s Court Committee, and a
tinent questions on his mere assertion that the fellow of the American College of Trust and Estate Counsel.
answer might tend to incriminate him, as it is always 1. Names of entities and individuals have been omitted.
for the court to determine whether there is substance 2 See NY Const., Articles 1 & 6; CPLR 4501; People v. Reiss, 255 A.D.
509 (1st Dept. 1938).
to such claim by a witness.6 Each assertion of the priv- 3 Id.; In re Rouss, 221 N.Y. 667 (1917); Busshart v. Park, 112
ilege against self-incrimination rests on its own cirA.D.2d 787 ( 4th Dept., 1985); Rolnick v. Rolnick 46 Misc.2d 1012
(Sup. Ct., Kings Co. 1965).
cumstances. Blanket assertions of the privilege are
4. Doyle v. Hofstader, 257 N.Y. 244 (1931).
not permitted.7
5. Brill v. Dodd, 36 N.Y.S.2d 975 (Sup. Ct., Kings Co. 1942).
In our particular case, the court granted the motion 6. In re Cappeau, 198 A.D. 357 (1st Dept. 1921).
to question the witness, in camera, to determine the 7. Agnello v. Corbisiero, 177 A.D.2d 445 (1st Dept., 1919).
validity of his Fifth Amendment assertion. 8. National Life Insurance Co. v. Hartford Accident & Indemnity
Co., 615 F.2d 595 (3rd Cir.1980).
Whereupon, after hearing the proposed testimony of 9. Andover Data Services v. Statistical Tabulating Corporation, 876
the witness, the court ruled that the possibility of the
F.2d 1080 (2nd Cir.1989).
witness being prosecuted was too remote to support 10. Pillsbury Company v. Conboy, 459 U.S. 248 (1983).
University and a host of other campuses.17 Many of
these complaints allege that the accused students
were not afforded fair hearings and that their institutions grossly violated their respective due process
rights.18 A number of these complaints also state
that the “presumed guilty” mindset that many colleges and universities maintain has resulted in serious miscarriages of justice for accused students.19
When properly implemented, Title IX shields
students and guides institutions on how to maintain a safe campus environment. At the same time,
Title IX can be, and currently is, being used as a
sword (by both victims and accused students) in an
effort to punish institutions for improperly
responding to claims of sexual misconduct.
Especially during this new era of Title IX enforcement and attention by the federal government,
institutions must keep a close eye on the course of
this federal law, as the ever-changing climate has
the ability to have practical as well as legal implications for all colleges and universities.
James G. Ryan is the Partner-In-Charge of the
Commercial Litigation and Education Litigation
Department at Cullen and Dykman LLP. Cynthia A. Augello
and Hayley B. Dryer are both Associates at Cullen and
Dykman LLP and current members of the NCBA
Education Law Committee.
1. 20 U.S.C. §1681 et seq.
2. https://aclu-wa.org/sites/default/files/attachments/WA-specific%20Sexual%20Assault%20KYR.pdf (citing Davis v. Monroe
County Bd. of Educ., 526 U.S. 633 (1999)).
3. www.whitehouse.gov/sites/default/files/dear_colleague_
sexual_violence.pdf
4. www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html
5. Id.
6. See Cannon v. University of Chicago, 441 U.S. 677 (1979)
(holding that an individual has a private right of action
under Title IX).
7. www.whitehouse.gov/sites/default/files/docs/report_0.pdf
8. www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
9. www.insidehighered.com/sites/default/server_files/files/
Bill%20text(1).pdf
10. www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-assault_n_5990286.html
11. www.nytimes.com/2014/07/13/us/how-one-college-handled-asexual-assault-complaint.html
12. See, e.g., http://washington.cbslocal.com/2013/12/17/reportmale-students-use-title-ix-discrimination-laws-to-fight-campus-sexual-assault-claims/
13. www2.ed.gov/about/offices/list/ocr/letters/colleague201104.pdf
14. www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf
15. www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
16. Id.
17. www.latimes.com/local/la-me-sexual-assault-legal-20140608story.html#page=1
18. Id.
19. Id.
16
n
November 2014
n
Nassau Lawyer
NCBA Committee Meeting Calendar • Nov. 15 - Dec. 15, 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.
Monday November 17
Attorney/Accountants
12:30 p.m.
Neil D. Katz
Young Lawyers
6:30 p.m.
Andrea Brodie
Thursday November 20
Women In The Law
12:30 p.m.
Barbara Gervase/Amy Hsu
Civil Rights
12:30 p.m.
Jason Starr
Tuesday November 18
Education Law
12:30 p.m.
Douglas Libby
Veterans & Military Law
12:30 p.m.
Edward Cunningham
Defendant’s Round Table
12:30 p.m.
William Croutier, Jr.
Municipal Law
12:30 p.m.
Liora Ben-Sorek/Lisa Cairo
Tuesday November 25
Elder Law Social Services & Health
Advocacy
6:00 p.m.
Moriah Adamo/Paul Hyl
Wednesday November 19
District Court
12:30 p.m.
Mitchell Hirsch
Commercial Litigation
12:30 p.m.
Kevin Schlosser
Wednesday November 26
Appellate Practice
12:30 p.m.
Richard Langone
Continued From Page 5
OML. The Committee for Open
Government has stated in an advisory
opinion that, “When an exemption
applies, the [OML] does not, and the
requirements that would operate with
respect to executive sessions are not in
effect.”10
In addition to the reasons set forth in
the OML, additional authority is given
to school district audit committees to
conduct
an
executive
session.
Specifically, Education Law § 2116–c
authorizes such an executive session to
allow the audit committee to “meet with
the external auditor prior to the commencement of the audit;” to “review and
discuss with the external auditor any
risk assessment of the district's fiscal
operations;” and to “receive and review
the draft annual report and accompanying draft management letter and, working directly with the external auditor,
assist the trustees or board of education
in interpreting such documents.”
Once a determination is made that a
particular matter may be properly
addressed in executive session, the public body must then follow a specific procedure prior to commencing an executive session. First, a motion must be
made during a public meeting, and
adopted by a majority vote of the total
board membership, to enter into executive session.11 That motion must identify the subject or subjects to be considered during the proposed executive session.12 Unfortunately, although the
OML requires that such a motion be
made, it fails to provide any guidance as
to how the specific motion should read.
Hospital & Health Law
8:30 a.m.
Geoffrey Kaiser/Kevin Mulry
Women In The Law
12:30 p.m.
Barbara Gervase/Amy Hsu
Community Relations & Public
Education
12:45 p.m.
Adam D’Antonio
Alternative Dispute Resolution
12:30 p.m.
Elizabeth Donlon
Association Membership
12:45 p.m.
Marc Gann/Geoffrey Prime
Young Lawyers
6:30 p.m.
Andrea Brodie
Matrimonial Law
5:30 p.m.
John P. DiMascio, Jr.
Monday December 8
Adoption Law
12:30 p.m.
Frederic Wool
However, it has been recently illustrated that simply reciting the language
of the statute is insufficient. In Zehner
v. Board of Education of the JordanElbridge Central School District,13 the
court found that a board of education
violated the OML by entering into executive session based upon a motion that
amounted to only “merely reciting
statutory categories for going into executive session without setting forth more
precise reasons for doing so.”
Furthermore, although the motion to
convene an executive session may seem
like a formality, it should not be viewed
as a foregone conclusion. The OML
requires that the motion and vote take
place at the open meeting during which
the executive session is to take place.
Accordingly, the executive session cannot be scheduled in advance.14
However, it is permissible to place a
notation on the meeting agenda that
there will be a “proposed executive session, subject to board approval,” or that
the public body “anticipates that the
board will act upon a resolution to convene an executive session.”15 Although
“technically” a public body cannot
schedule an executive session in
advance of a meeting, a board may provide notice of an “intent to enter into an
executive session as an appropriate way
of alerting the public that an executive
session is likely to be held (rather than
scheduled), and implicitly, that there
may be no overriding reason for arriving at the very beginning of a meeting.”16 Also, because the OML specifically defines an executive session as
“that portion of a meeting not open to
the general public” an executive session
may not be held prior to the beginning
of a public meeting.17
Once an executive session has been
Plaintiff’s Round Table
6:00 p.m.
Terrence Tarver
Tuesday December 9
Technology & Practice Management
8:00 a.m.
John P. Whiteman, III
Corporation, Banking, & Securities Law
8:30 a.m.
Michael Weiner
Environmental Law
12:30 p.m.
Kenneth Robinson
Labor & Employment
12:30 p.m.
Jeffrey Schlossberg
Real Property Law
12:30 p.m.
Kevin McDonough/Mary Mongioi
MEETINGS ...
Wednesday December 10
Friday November 21
Senior Attorneys
12:30 p.m.
Charles E. Lapp, III
Plaintiff’s Round Table
6:00 p.m.
Terrence Tarver
Thursday December 4
Thursday December 11
General/Solo/Small Firm Practice
12:30 p.m.
Gary Port
Publications
12:45 p.m.
Christopher DelliCarpini
* Committee Chairs and Co-Chairs denoted in Italic.
properly called, the type of business a
public body may actually conduct is limited. Although the Committee for Open
Government has previously expressed
its opinion that most public bodies may
take action during an executive session,
this does not apply to school boards.18
In fact, the general rule is that a school
board may not take action in an executive session.19 This limitation has one
notable exception. School boards are
permitted to discuss disciplinary
charges against a tenured teacher, and
vote on whether probable cause exists
to commence disciplinary charges
against that employee.20
The OML, and in particular those
aspects of the law that pertain to executive sessions are easily overlooked by
public bodies. However, the failure to
adhere to these provisions can result in
needless litigation, expense, and public
embarrassment. Accordingly, pubic
bodies should familiarize themselves
with the provisions of the OML and consult with their attorneys to ensure that
OML violations are avoided.
Laura Ferrugiari is a partner, and Joseph
Lilly is an associate at the law firm of Frazer
& Feldman, specializing in the field of
Education Law.
1. Pub. Off. L. § 100.
2. Pub. Off. L. § 103(a).
3. Id.
4. Pub. Off. L. § 107(3).
5. Pub. Off. L. § 107(1).
6. Id.
7. Pub. Off. L. § 107(2).
8. A complete list of those matters for which an
executive session may be called can be found at
Pub. Off. L. § 105(a)-(h).
9. Pub. Off. L. § 108.
10. OML–AO–5265.
11. Pub. Off. L. § 105(1).
12. Id.
13. Zehner v. Board of Education of the JordanElbridge Central School District, 91 A.D.3d
1349 (4th Dept. 2012).
14. OML-AO-4889.
15. OML-AO-2426.
16. OML-AO-4889.
17. Id.
18. OML-AO-2209.
19. Matter of Crapster, 22 Ed. Dept. Rep. 29.
20. Education Law § 3020(a). Sanna v.
Lindenhurst Bd. of Educ., 85 A.D.2d 157 (2d
Dept. 1982); aff’d 58 N.Y.2d 626 (1987).
NCBA New Members
We welcome the following
new members
Attorneys
Gillian Ballantine-Alman
Wendy Kim Chaite
James M. Tsimis
Ronald S. Zimmer
Students
Jeffrey Anand
Constance J. Christie
Kristen D’angelo
Joseph J. Karlya III
Joanna Lima
Jorge L. Macias
Sean J. McGowan
Patricia Y. Medina
Chibogu Nneka Nzekwu
Evan Rabinowitz
Richard Wolf
In Memoriam
Hon. John B. Pessala
Nassau Lawyer
BULLYING ...
Can a school district’s failure to address bullying
amount to a denial of FAPE?
The question then becomes, what is a school
required to do to stop bullying of students with disabilities? School districts and schools are obligated under
the Individuals with Disabilities Education
Improvement Act (IDEIA) to provide a FAPE to all children with disabilities that emphasizes special education and related services designed to meet their unique
needs and prepare them for further education, employment and independent living.10
The “IDEIA provides procedural and substantive
safeguards for special education students with respect
to the education programs tailored to them.”11 To meet
the IDEIA requirements, school districts in New York
must provide “a program with special education and
related services tailored to meet the unique needs of a
particular child, and be reasonably calculated to enable
the child to receive educational benefits.”12
The Individualized Education Plan (IEP) is the tool
by which a school administers those services and
Committees on Special Education (CSE) develop those
IEPs. The court in Walczak v. Florida Union Free
School District states that the CSE is “required to consider four factors in developing a student’s IEP: (1)
Academic achievement, (2) Social development, (3)
Physical development, and (4) Managerial or
Behavioral needs.”13
This being said, the ultimate question is whether
bullying can be a basis for a denial of FAPE claim in
New York. The USDOE has required schools to be
responsible for addressing bullying incidents for the
past several years whether they knew, or should have
known, about these incidents. The court in T.K. states
the rule to be followed by school districts when responding to bullying incidents: (1) schools must take prompt
and appropriate action (2) investigating whether the
reported harassment occurred, and (3) if the harassment is found to have occurred the school must take
“appropriate steps to prevent it in the future.”14
Therefore, the court in T.K. did not impose a new standard on schools. They merely repeated the standard
required by the USDOE.15
In order to find a denial of FAPE the bullying of the
student with disabilities must have limited or denied
the student’s ability to participate in or benefit from the
school district’s educational plan. The court in T.K.
states that it is “not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of
the student for an appropriate education. The bullying
November 2014
n
17
engages in bullying behavior. It states that the “IEP
Team should review the student’s IEP to determine if
additional supports and services are needed to address
the inappropriate behavior,” and, “consider examining
the environment to determine if changes to the environment are warranted.” This would include instituting or amending a behavior intervention plan and providing additional counseling or other services.21
Continued From Page 3
Eastern District of New York, T.K. v. New York City
Department of Education gives an extensive explanation of bullying and its effects on students with disabilities.4 In this case the Court states that overall
studies have shown that students with disabilities are
“less popular, have fewer friends and struggle more
with loneliness” than their typically developing peers,
leaving them more vulnerable to bullying and harassment and less likely to form healthy peer relationships.5 Students with learning disabilities and students with Asperger’s Syndrome often lack social
awareness, and have a difficult time processing and
interpreting social cues, leaving them more vulnerable to bullying and harassment as a result.6
Massachusetts has adopted the strongest statute
among the States that requires that a student’s
Individualized Education Plan (IEP) address the skills
needed to avoid bullying whenever an evaluation indicates that a child has a disability that will leave them
vulnerable to bullying.7
Since studies have shown that students who are victims of bullying in school have no other escape than to
avoid going to school, it is the school’s responsibility to
immediately respond to incidents they know of, or
should know of, to prevent the victim from regressing
academically which can result in a denial of a free and
appropriate public education (FAPE) and liability for
the school district.
The court in T.K. points out that “being the victim of
bullying is related to sliding grades, absenteeism, poor
academic achievement, being lonely, exhibiting withdrawal behaviors, difficulty acting assertively or being
aggressive.”8 The court further points out that students
who struggle academically are more likely to be “victims or bully-victims, which is defined as a student who
is both a victim and a bully at different times.”9
n
What steps should a school district take
to properly address incidents of bullying?
need not be a reaction to or related to a particular disability.”16
The court provides a test to determine whether a
denial of FAPE has occurred; the parents must provide
evidence that: (1) the student was a disabled student
who was the victim of harassment from peers; (2) the
parents must show evidence that the school was given
notice of the harassment; (3) the school district failed to
take reasonable steps to address the harassment; and
(4) the student was denied some educational benefit as
a result.17 The court further states that, as per the
USDOE Reminder Letter in 2000, a student is not
required to prove that he or she was denied all of her
educational benefit but merely that he or she may suffer adversely as a result of the bullying.18 The court goes
on to say that “a child may achieve substantial educational gains despite the harassment and yet still may
have been seriously hindered … whether the bullying
rose to this level is a question for the fact finder.”19
The court addressed an example of bullying that
would amount to a denial of FAPE which was presented by the USDOE in its Bullying and Harassment letter from 2010: “A hypothetical student with a disability is verbally teased by other students and on one occasion is tackled, hit with a binder, and has his personal
affects thrown in the garbage. The student approaches
teachers and guidance counselors who suggest counseling, but they do nothing to punish the bullies. The bullying then continues and the student, who was once
doing well, begins showing the signs of victimization at
the hands of other children. The school in this hypothetical responded in part to the bullying, in offering
the student counseling to deal with what he was going
through. But it did not respond adequately. It did not
fully investigate the bullying or punish those who were
perpetrating the harassment. In this example, the
school deprived the student of his educational benefit.”20
In the 2013 Dear Colleague Letter, USDOE addresses the situation where the student with a disability
LICENSED TO LIE ...
Continued From Page 14
its key prosecution witness in both trials.
The Fifth Circuit threw out all but two counts
based upon Powell’s appellate advocacy for a Merrill
Lynch defendant where she argued there was blatant
suppression of favorable evidence of innocence. Four
years after the trial, the successor prosecutors produced a disk containing the former prosecutors’ notes
of interview of witnesses favorable to the defense that
Powell describes as “plainly suppressed.” The suppressed notes are reproduced in the book, including
the prosecutor’s yellow highlighted witness statements which supported the defense claim at trial that
Merrill made a good faith investment in the Enron
energy venture and did not assist Enron in “cooking
its books.”
Powell was eventually successful in ending her
client’s nightmare by a sentence of “time served” – jail
time her client served before the Fifth Circuit’s decision ordered a new trial on the counts not dismissed.
A Dear Colleague Letter from the Office of Civil
Rights in 2010 lists the appropriate steps for school districts to follow.22 The list includes, but is not limited to,
providing counseling for the victim and/or the bully,
separating the bullying and the victim, taking disciplinary action against the bully, providing sensitivity
training to both the bully and the larger school community and issuing new policies against bullying.
Subsequent to the decision in T.K., New York enacted the Dignity for All Students Act, (DASA), which
amends Education Law § 801–a and incorporates many
of the elements set forth in the T.K. decision.
Committees on Special Education must address the
impact of bullying on the special education student in
the IEP in order to ensure that the student is receiving
a free and appropriate public education. Thus, New
York schools and school districts have an affirmative
duty to ensure that students with disabilities as well as
general education students are protected from bullying.
Saundra M. Gumerove, a Special Needs Attorney with Saundra
M. Gumerove, Esq., P.C., represents and works with individuals with disabilities and their families on a wide range of
issues. She is Vice Chair of the NCBA Elder Law, Social
Services and Health Advocacy Committee, and a member of
the NCBA Education Law Committee
Patricia Craig is a Special Needs and Special Education associate at Saundra M. Gumerove, Esq. P.C. in Jericho and is a
member of the NCBA Education Law Committee.
1. (USDOE 2000).
2. OSERS/OSEP Dear Colleague Letter, 61 IDELR 263 (2013).
3. stopbullying.gov
4. T.K. v. New York City Dept. of Educ., 779 F. Supp. 2d 289
(E.D.N.Y 2011).
5. T.K. at 303.
6. Id. at 303-305.
7. Id. at 303-304.
8. T.K. at 304 quoting Gayle L. Macklem, Bullying and Teasing:
Social Power in Children’s Group 42-47 (2003) at 68.
9. T.K. at 305 quoting Gwen M. Glew, et. al. Bullying, Psychological
Adjustment, and Academic Performance in Elementary School,
159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005)
at 1030.
10. 20 USC 1400(d) §300.1(a).
11. T.K. at 309.
12. Id. quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d
119,122 (2d Cir. 1998).
13. Walczak at 123.
14. T.K. at 317.
15. Id. at 316.
16. Id. at 317.
17. Id. at 317-318.
18. Id. at 318, quoting US Dept. of Educ., Reminder of Responsibility
under Section 504 of the Rehabilitation Act of 1973 and Title II of
the Americans with Disabilities Act, July 25, 2000.
19. Id. at 318.
20. T.K. at 317 (quoting USDOE Bullying and Harassment Letter,
October 2010).
21. OSERS/OSEP Dear Colleague Letter, 61 IDELR 263 (2013).
22. OCR Dear Colleague Letter, 55 IDELR 174 (Oct. 2010).
Few escape Powell’s fury, including numerous federal judges (other than Judge Sullivan), the DOJ
Office of Professional Responsibility and the various
bar associations who “have abdicated all responsibility regarding violations by these high-profile lawyers
and prosecutors in general.” Powell describes U.S.
District Judge Erwin Werlein, Jr. (Southern District
of Texas), who presided at the Merrill Lynch trial, in
the most unflattering terms imaginable.
One has to wonder, as Powell admits, “whether I
can continue practicing law …” given her avowed lost
trust and faith in the federal system. But there is a
higher calling, as Ninth Circuit Chief Judge Alex
Kozinski notes in the Foreword: “One way or another,
however, this book should serve as the beginning of a
serious conversation about whether our criminal justice system continues to live up to its vaunted reputation. As citizens of a free society, we all have an
important stake in making sure that it does.”
Joe Ryan, a former federal prosecutor and defense attorney, served as Chair of the Federal Courts Committee for
the Suffolk County Bar Association and the Nassau
County Bar Association where he also served as
President. (JoeRyanLaw.com).
18
n
November 2014
n
Nassau Lawyer
WE CARE
WE CARE
Thanksgiving Day Luncheon
for Seniors
Thursday, Nov. 27, 2014
11:00 a.m. - 1:00 p.m.
g g
Happy
at the Nassau County Bar Association
15th & West Streets, Mineola
To recommend Seniors who are alone for
this holiday or to volunteer to serve,
contact: Perri Boodram (516)747-4070
WE CARE Fund of the
Nassau County Bar Association
and Garden City Caterers
THE WE CARE FUND*
Presents
GINGERBREAD
UNIVERSITY
Saturday,
December 6, 2014
2 Sessions
Nassau County Bar Association
15th & West Streets, Mineola
Please join us in celebrating the annual Gingerbread
University Holiday Workshop, sponsored by the WE CARE
Fund of the Nassau County Bar Association.
Children of all Ages will delight in hours of fun and creativity,
designing and decorating their very own gingerbread houses.
Light refreshments will be served, and upon completion of the
University’s curriculum, a diploma and degree in
“Gingerbreadology” will be granted to each child.
We are often imitated, but never duplicated. Enrollment is
limited, so make sure to reserve your place now!
*WE CARE Fund is part of the Nassau Bar Foundation Inc., the charitable
arm of the Nassau County Bar Association.
We Acknowledge, with Thanks,
Contributions to the WE CARE Fund
In Honor Of
Donors
Dan Bagnuola
Kelli McGrath, daughter of Christopher T. McGrath, on passing
the NYS Bar Exam
Stephen W. Schlissel
Dr. Michael Moskowitz
Wedding of the daughter of Mr. & Mrs. Richard Feldman
Wedding of Patricia Condon and Marc Gottlieb
Vito Cannavo, passing the NYS Bar Exam
the son of John Gionis, on passing the NYS Bar Exam
the daughter of Mark Maguire, on passing the NYS Bar Exam
Matt McDonagh, son of Michael McDonagh, on passing the
NYS Bar Exam
Bethany Sobol, daughter of Mike & Elizabeth Sobol, on
passing the NYS bar Exam
Darryn Solotoff’s receipt of the Long Beach Chamber of
Commerce Professional of the Year Award
Rachelle Harris
Adrienne Flipse Hausch
Evelyn Kirschenfeld
Peter Panaro
Christopher T. McGrath
Christopher T. McGrath
Christopher T. McGrath
Christopher T. McGrath
Christopher T. McGrath
Hon. Denise Sher
Miriam Pismeny’s Birthday
Leah & Max Belfort
Miriam Pismeny’s Birthday
Hon. Andrea Phoenix
Hon. Denise Sher
Hon. Claire I. Weinberg
Wedding of Leah Palley Engel to Matthew Green, daughter of
Hon. Andrew Engel & Sheryl Palley-Engel
Richard G. Fromewick
Stephen Gassman
Caryle Katz
Hon. Andrea Phoenix
Hon. Denise Sher
Kathleen & Richard Wright
Frank Yannelli, upon the dedication of the Attorney’s Lounge of the
Nassau County Court from the Criminal Courts Bar Association
Gale D. Berg
Caryle Katz
Christopher T. McGrath
Grace Moran
Hon. Marie G. Santagata
Hon. Denise Sher
Hon. Hope Schwartz Zimmerman’s receipt of the Jewish Lawyers
Association – Neil Shayne Award
Richard G. Fromewick
Hon. Andrea Phoenix
Hon. Denise Sher
Hon. Elaine J. Stack & Sandy Goldsmith
Donor
For Speedy Recovery
Hon. Peter B. Skelos
Donor
Hon. Thomas Feinman
In Memory Of
Tel#_______________Email_______________
Steven & Kathleen Eisman
Steven J. Eisman & Samuel J. Ferrara
Hon. Fred J. Hirsh
Christopher T. McGrath
Hon. Andrea Phoenix
Hon. Marie G. Santagata
Hon. Peter B. Skelos
Hon. Claire I. Weinberg
TOTAL # OF CHILDREN ATTENDING________
In Memory of Catherine N. O’Donnell, mother of Hon. Colin O’Donnell
---------------------------------------------------------------
GINGERBREAD UNIVERSITY REGISTRATION
Name_________________________________
Address_______________________________
City, State, Zip__________________________
Session Attending:____ 9:30 a.m. - 11:30 a.m.
____ 1:00 p.m. - 3:00 p.m.
REGISTRATION FEE:
$40.00 per child
$45.00 “Take Out” Kit
I cannot attend but enclose $_____
as a donation for the WE CARE Fund
1
1
1
TOTAL $_________
# Check Enclosed
# Charge Credit Card
__MC__VISA__ AMEX
Name on Card______________________________________
Card #____________________________________________
Billing Address______________________________________
Exp. Date____/_____Security Code__________
Please make checks payable to and mail registration form to:
WE CARE Fund
15 & West Streets, Mineola, NY 11501 Att: Gingerbread University
Steven J. Eisman
Adrienne Flipse Hausch
Hon. Fred J. Hirsh
Diana Mobley, sister of Karen Mancuso
Hon. Donald R. Blydenburgh
Diana Mobley, sister of Karen Mancuso
Ronald Morelli
Joseph Dulin, father of Tierre Jeanne Porter
John D. Leonardis
Ronald Morelli
Irene Ida Metrick, mother of Roberta Scoll
Hon. John G. Marks
Kenneth L. Marten
Hon. Andrea Phoenix
Hon. Denise Sher
In Memory of Hon. John B. Pessala, husband of Elizabeth Pessala
Hon. Kenneth S. Diamond
Hon. Angelo A. Delligati
Steven J. Eisman
Samuel J. Ferrara
Hon. Carnell T. Foskey
Richard G. Fromewick
Stephen Gassman
Marilyn K. Genoa
Adrienne Flipse Hausch
Caryle Katz
Elaine Leventhal
Hon. John G. Marks
Kenneth L. Marten
Christopher T. McGrath
Peter Panaro
Hon. Andrea Phoenix
Hon. Marie G. Santagata
Jerome A. Scharoff
Hon. Denise Sher
Hon. Michael & Barbara Solomon
Hon. Peter B. Skelos
Hon. Elaine J. Stack
Hon. Claire I. Weinberg
Kathleen Wright
Checks made payable to Nassau Bar Foundation-WE CARE
Contributions may be made by mail:
NCBA Attn: WE CARE
15th & West Streets
Mineola, NY 11501
ZERO TOLERANCE ...
Continued From Page 7
constitutional challenges to zero tolerance rules have
been unavailing.8
Zero tolerance rules have been found not to violate
the First Amendment. To the contrary, school administrators may prohibit speech that “materially or substantially interferes with the requirements of appropriate discipline in the operation of the school,” or that
would “substantially interfere with the work of the
school or impinge upon the right of other students.”9
Schools may also prohibit speech that is inconsistent
with their “basic educational mission,” even when the
same speech may not be prohibited outside the
school.10 To the extent a school is a non-public forum,
its limitations on student speech need only be “reasonable and viewpoint neutral.”11
Applying these standards, school districts were
found not to have violated students’ First Amendment
rights by suspending a sixth grader for thirty days on
the basis of a creative writing assignment “with its
graphic depictions of a child brutally murdering his
classmates,” or suspending an older student for
approximately two months on the basis of a raciallycharged comment.12
Zero tolerance rules have also survived Fourteenth
Amendment challenges. While long-term suspensions
for relatively minor infractions are often alleged to be
“excessive” and/or “arbitrary and capricious,” thereby
violating a student’s right to substantive due process,
the United States Supreme Court has held that “[o]nly
the most egregious official conduct can be said to be
‘arbitrary in the constitutional sense.’”13 Further, the
Supreme Court has “repeatedly emphasized the need
for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and
control conduct in the schools.”14 As a practical matter, this means that long term suspensions meted out
pursuant to zero tolerance rules – including suspensions of approximately 10 months based on possession
of marijuana and drug paraphernalia15 and more than
one year for inciting a riot16 – have been sustained as
within the school districts’ discretion.17
To the extent a student claims that he or she was
denied procedural due process based upon the recognized protected right to a public education,18 such
claims are likely to be successful only in cases where
the student establishes that he or she failed to receive
the requisite notice and opportunity to be heard as
established by federal law.19 Failure to provide the
requisite notice and opportunity to be heard as
required by New York State Education Law §3214 will
not support a federal procedural due process claim.20
Zero tolerance rules are often applied following a
search of a student’s person or of his locker, raising
Fourth Amendment implications. But, here, too, zero
tolerance rules have passed constitutional muster.
Although the Fourth Amendment applies to searches
conducted by public school officials,21 school officials
are afforded greater latitude with respect to such
searches on the ground that they have an interest in
“maintaining security and order” in their schools.22
Searches are justified where there “are reasonable
grounds for suspecting that the search will turn up evidence that the student has violated or is violating
either the law or the rules of the school.”23 In determining whether a search is reasonable, courts consider
whether the search was justified at the inception and if
the search “as actually conducted ‘was reasonably
related in scope to the circumstances which justified
the interference in the first place.’”24
Applying this test, suspensions based upon “minimally invasive” searches (like where a student is
asked to empty his pockets) were found constitutionally permissible where students acted “high,”25 smelled
of marijuana,26 and where a student was in the school
parking lot in violation of school rules, looked nervous,
and was wiping his nose and rubbing his eyes.27
Attacks on zero tolerance rules as violating students’
equal protection rights also have proved unsuccessful.
The courts have rejected such constitutional challenges either because they found that the student
failed to demonstrate he or she was treated differently
from other students, or, applying a “class of one”
analysis, failed to establish that the school district
intentionally treated the disciplined student differently from similarly situated students.28
In sum, as established by these cases, and regardless
of whether they are good policy, zero tolerance rules are
unlikely to be stricken on constitutional grounds. For
the most part, constitutional challenges to these rules,
whether they be under the First, Fourth, Fifth, or
Fourteenth Amendments, have been unsuccessful.
Lynn M. Brown is Of Counsel to Meyer, Suozzi, English &
Klein, P.C., part of the Litigation & Dispute Resolution
Department and a founding member of the firm’s Education
Law practice. She routinely appears before the Committees
on Special Education of numerous Long Island school districts, and in connection with impartial (due process) hearings, securing timely educational evaluations, services and
accommodations for learning-disabled children under federal and state law.
1. American Psychological Ass’n Zero Tolerance Task Force Report:
“Are Zero Tolerance Policies Effective in the Schools? An
Evidentiary Review and Recommendations” (Aug. 9, 2006) at 2, 19;
Blumenson, E. & Nilsen, E.S., “One Strike and You’re Out?
Constitutional Constraints on Zero Tolerance in Public Education,”
81 Wash. U.L.Q. 65 (Spring 2003) at 65-66.
2. For example, the Garden City School District Code of Conduct
(posted on its website) subjects students to discipline for: “possessing a weapon or other object which is not necessary for school activities and which could be used as a weapon;” “possessing, consuming, selling, distributing or exchanging alcoholic beverages or illegal substances, or being under the influence of either,” and “indecent exposure, that is, exposure to sight of the private parts of the
body in a lewd and indecent manner.” Garden City Public Schools
Code of Conduct, Section 5300.25 at D(3) and E.(12) and (15).
3. Blumenson, supra n.1, at 69.
4. Cohn v. New Paltz Cent. Sch. Dist., 363 F.Supp.2d 421, 436 (N.D.N.Y.
2005), citing Matter of Rodriguez, 8 Ed.Dept. Re. 214, 216-17..
5. American Psychological Ass’n Zero Tolerance Task Force Report,
supra n.1, at 19.
6. Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S.503, 506 (1969).
7. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986).
8. See J.E. ex rel. Edwards v. Center Moriches Union Free Sch. Dist.,
898 F.Supp.2d 516, 538 (E.D.N.Y 2012) (“[t]he threshold for establishing a constitutional tort in a school environment is high”).
9. Tinker v. Des Moines Indep. Comty. Sch. Dist., supra, 393 U.S. at
503; D.F. ex rel. Finkle v. Board of Educ. of Syosset Cent. Sch. Dist.,
386 F.Supp.2d 119, 125 (E.D.N.Y. 2005), citing, Smith v. Mount
Pleasant Pub. Sch., 285 F.Supp.2d 987, 993 (E.D. Mich. 2003).
10. Fraser, 478 U.S. at 685.
11. Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d
Cir. 2004).
12. DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 7780 (2d Cir. 2010).
13. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), quoting
Collins v. Harker Heights, 503 U.S.115, 129 (1992).
Nassau Lawyer
n
November 2014
n
19
14. Tinker, 393 U.S. at 507.
15. Binder v. Cold Spring Harbor Cent. Sch. Dist., No. CV 094181(SJF)(ARL), 2010 WL 3257708 at *7 (E.D.N.Y. Jul. 19,
2010)(Report & Recommendation).
16. J.E. ex rel. Edwards, 898 F.Supp.2d at 537-42.
17. See also DeFabio, 623 F.3d at 80-83 (School District’s decision to
expel student for the remainder of school year was not arbitrary
or irrational); D.F. ex rel. Finkle, 386 F.Supp.2d at 127 (sustaining
30 day suspension); Cohn, 363 F.Supp.2d at 434 (“Plaintiff’s conversing with fellow students about handguns and subsequently
obtaining possession of a handgun constituted a ‘material and
substantial disruption of the educational process’ worthy of [several month] suspension”). But see Biswas v. City of New York, 973
F.Supp.2d 504 (S.D.N.Y. 2013) (declining to dismiss substantive
due process claim against Board of Education defendants because
the court treated as true, for purposes of the motion, plaintiff’s
claim that the defendants knowingly suspended her on the basis
of fabricated evidence).
18. Goss v. Lopez, 419 U.S. 565, 576 (1975).
19. See DeFabio, 623 F.3d at 80 (holding that the procedures afforded
plaintiffs in connection with the student’s initial and long term
suspensions satisfied student’s due process rights); D.F. ex rel.
Finkle, 386 F.Supp.2d at 126-27 (student’s due process rights
were not violated; notice of charges were sufficiently specific, his
hearing was held on adequate notice; and he presented a defense
with counsel, even of the identity of the students who testified
against him).
20. Mac Ineirghe v. Bd. of Educ. of E. Islip Union Free Sch. Dist., No.
05 Civ. 4324(JFB)(AKT), 2007 WL 2445152 at *19 (E.D.N.Y. Aug.
22, 2007) (plaintiffs’ due process rights were not violated;
“[a]lthough plaintiffs were not afforded the process described
under N.Y. Educ. Law §3214, plaintiffs were afforded the process
due under the Constitution”).
21. Binder, 2010 WL 3257708 at *5. See Phaneuf v. Fraikin, 448 F.3d
591, 597 (2d Cir. 2006) (“as the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment
reasonableness),” quoting Cornfield by Lewis v. Consol. High Sch.
Dist., No. 230991 F.2d 1316, 1321 (7th Cir. 1993).
22. New Jersey v. T.L.O., 469 U.S. 325, 340. (1985).
23. Id. at 342.
24. Binder, 2010 WL 3257708 at *5 (quoting New Jersey v. T.L.O., 469
U.S. 325, 341 (1985) quoting Terry v. Ohio, 392 U.S. 1, 20 (1967)).
25. Faber v. Monticello Cent. Sch. Dist., No. 10-CV-01812 (ER), 2013
WL 2450057 (S.D.N.Y. June 6, 2013).
26. Binder, 2010 WL 3257708.
27. Mac Ineirghe, 2007 WL 2445152 at *10.
28. J.E. ex rel. Edwards, supra, 898 F.Supp.2d at 548-550; DeFabio v.
East Hampton Union Free Sch. Dist., 658 F.Supp.2d. 461, 494-97
(E.D.N.Y. 2009), aff’d, 623 F.3d 71 (2d Cir. 2010). But see Cohn,
363 F.Supp.2d at 439 (declining to dismiss equal protection claim
on motion pursuant to Fed.R.Civ.P. 12(c)).
20
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November 2014
AUTISM ...
n
Nassau Lawyer
Continued From Page 7
is only the first step. IDEA requires
every state to issue regulations that
guide the implementation of the federal
law within the state. At a minimum,
state regulations must provide all of the
protections contained in IDEA. Some
states may have additional requirements that go beyond the federal law.
Many states offer handbooks or guides
to help parents understand these statespecific policies and procedures.4
IDEA states that children with
autism and other disabilities are entitled to a free and appropriate education
(FAPE) in the least restrictive environment (LRE). Unfortunately, they do not
incorporate a clear definition of inclusion and this grey area leaves parents
at the mercy of school districts with
their own ideas about what are the
appropriate educational methods for
these special kids. At the district level,
what passes for “policy” is too often a
one-page memo that leaves educational
policy as an ad hoc process without any
clear cut methodology.
It is important that parents and
advocates understand that IDEA provides specific procedural safeguards to
help parents advocate for their child’s
educational well-being. It promotes parents’ involvement in the education of
their child and gives them the necessary tools to be key decision makers.
The federal law allows parents to
participate in all meetings concerning
their child, examine their child’s school
records, request an independent evaluation and agree or disagree with placement decisions. The first step towards
more successful policy implementation
is the existence of a strong cohort of
engaged parents to help motivate school
officials to follow the legal guidelines.
The irony is that the districts on
Long Island are trying to make things
better. Their approach, however, is too
often a one size fits all policy that is
attempting to herd special needs kids
back into the public schools from their
more expensive, but extremely effective, outsourcing at private schools
devoted exclusively to educating special
needs children.
The problem here for Long
Island is that there are 126
separate school districts, each
with their own method of how
to implement the protocols
suggested under IDEA.
The narrative that the districts
employ is very seductive. They talk
about “mainstreaming” and “integrated
classrooms” where “co-teachers” are utilized to make the special needs child feel
just like any other kid. This approach
can be effective when it is used for a
small number of students with comparable disabilities. When a larger number
of these kids with disparate skills and
abilities are herded together, however,
good outcomes are much harder to
obtain. Mainstreaming sounds good but
is not always the best approach if it isn’t
properly implemented.5
The problem here for Long Island is
that there are 126 separate school districts, each with their own method of
how to implement the protocols suggested under IDEA. Unlike New York
City, where the Department of
Education has developed a consistent
city wide approach, Long Island’s disparate treatment of children on the
autism spectrum makes it incumbent
on the parent and the practitioner to
become familiar with the specific
methodology used in a particular district.
Unfortunately, many parents lack
the requisite knowledge or the wherewithal to navigate this complicated
thicket, and to fight successfully on
behalf of their children who might not
be getting the right educational services. Our role as lawyers is to educate the
parents and advocate for their children
by bringing cases that, if successful, can
set legal precedents leading to policy
changes that will improve the education
of all special needs children in a district.
What
this
means
is
that
lawyer/advocates, along with the parents of children with ASD, must constantly fight for the educational rights
of these special kids, holding administrators’ feet to the fire so that schools
are following the law and providing
children with the education they
deserve to have.
This is precisely where the legal and
the political meet. On Long Island there
is the Long Island Advocacy Chair for
Autism Speaks, one of the nation’s
largest autism advocacy organizations.
When particular legal issues arise, it is
a huge help to practitioners to have an
organized advocacy group that can buttress individual legal claims. It goes
without saying that administrative officials will respond to political pressure
and grass roots advocacy efforts, and
HEARING ...
Continued From Page 9
the parties to arrange the pre-hearing
conference, or to address other issues
both before and after the pre-hearing
conference. These telephone conferences are not recorded and do not
become part of the printed record.
Where possible, the parties should
await the pre-hearing conference itself
to address issues, and should ask the
hearing officer to hold off on rendering
any decisions of substance until the prehearing conference. This also ensures
an accurate record of the request, the
determination, and the objections
thereto.11
YOU ARE NOT ALONE!
Unemployed and Underemployed
Help Available at the
Nassau County Bar Association
If you are currently unemployed or underemployed, there is help at
the NCBA. Join others confronting employment challenges at the
Unemployed/Underemployed Lawyers Group, sponsored by the Lawyer
Assistance Program Committee (LAP).
This special support group is open to all members. Any attorney
affected by today’s difficult economic times can attend these free meetings to obtain strategic support and solutions.
Meetings are informal and are held monthly at the Bar headquarters
in Mineola. There is no fee to participate and no reservations are
required. An optional buffet lunch is usually available.
Go to nassaubar.org home page, Calendars>Committee Meetings,
Events to see when the next meeting will be held. For more information,
contact LAP Director Peter Schweitzer [email protected] or
(516) 747-4070.
Debra L. Wabnik is a partner at Stagg,
Terenzi, Confusione & Wabnik, LLP, located
in Garden City. She heads the firm’s Labor &
Employment department, where she concentrates on Education Law matters, including representing teachers at Section 3020–a
hearings and appeals. Questions can be
directed to [email protected].
1. Motions must be submitted at least 5 days
prior to the pre-hearing conference.
2. See Michaels v. Mariforum Shipping, 642 F.2d
411, 413 (2d Cir. 1980) (“In order to be final,
an arbitration award must be intended by the
arbitrators to be their complete determination
lawyers practicing in this field would be
well-advised to develop strong ties to
the advocates who posses both a deep
reservoir of important information, as
well as necessary political will.
All children with special needs are a
unique kind of special interest. How we
treat these kids helps to define us as a
society. Our legislators have recognized
this, but lawyer/advocates need to
insure that vigilance is maintained at
the school level to insure that the promise of the law, and the righteous hopes
of parents, are actually realized.
Bradley L. Gerstman, Esq., founding partner
of Gerstman Schwartz & Malito, LLC and
Gotham Government Relations & Communications, LLC, has served as the Long
Island Advocacy Chair for Autism Speaks as
well as the Advocacy Chair on the 2007 Long
Island Walk Now for Autism Planning
Committee. In 2008 he was appointed by the
Nassau County Executive Tom Suozzi to
chair his Autism Coalition. Most recently, he
was elected by the Long Island Autism
Coalition Board to serve as Counsel to their
organization. He is a board member of the
Autism Legal Foundation and has done work
on behalf of Child Abuse Prevention
Services (CAPS).
1. Michelle Bermani, An Analysis of the Autism
Programs in the Long Island Public K–12
School Districts, available at
www.michelleibermani.com.
2. Centers for Disease Control, Autism Spectrum
Disorder (ASD) Data & Statistics,
www.cdc.gov/ncbddd/autism/data.html.
3. Pub.L. 104–476, 104 Stat. 1142. IDEA amended 20 USC § 1400 et seq.
4. NYSED, Individuals with Disabilities
Education Improvement Act 2004,
http://www.p12.nysed.gov/specialed/idea/;
Center for Parent Information and Resources,
Children (3 to 22),
www.parentcenterhub.org/repository/schoolage.
5. The Hechinger Report, Can special education
students keep up with the Common Core?,
available at hechingerreport.org.
of all claims submitted to them.”); accord
Kalyanaram v. American Ass’n of Univ.
Professors at the N.Y. Inst. of Tech., 742 F.3d
42 (2d Cir. 2014).
3. 43 N.Y.2d 276, 281 (1977).
4. Matter of Geneva City Sch. Dist. v. Anonymous,
77 A.D.3d 1365 (4th Dept. 2010). See also
Matter of Jordan-Elbridge Cent. Sch. Dist. v.
Anonymous, 37 Misc. 3d 1217(A) (Sup. Ct.,
Onondaga Co. 2012) (finding no authority for
judicial intervention in a hearing officer’s
interlocutory order which required petitioner
to produce certain emails, characterizing the
order as a “decision on a discovery issue which
involves only a limited procedural question
and in no way constitutes a final determination made at the conclusion of the arbitration
proceedings.”).
5. Matter of Board of Ed. of Hauppage Union
Free Sch. Dist. v. Hogan, 971 N.Y.S.2d 147,
149 (2d Dept. 2013).
6. 43 N.Y.2d 276, 281 (1977).
7. 37 Misc. 3d at 1217(A) at *2 (internal quotations and citations omitted).
8. 30 Misc. 3d 1212(A) (Sup. Ct., N.Y. Co. 2010)
(unreported).
9. 26 Misc. 3d 1208(A) (Sup. Ct., N.Y. Co. 2010)
(unreported).
10. Judicial review of arbitration awards is
authorized by CPLR 7510 and 7511.
However, under Education Law § 3020–a(5),
there is only a 10-day statute of limitations
for commencing an Article 75 special proceeding. Moreover, because a Section 3020–a
hearing is compulsory, judicial scrutiny is
somewhat stricter and a final award must
inter alia, comport with due process and be
supported by adequate evidence.
11. The parties have an opportunity to request
changes to the transcription of the recording.
ADVERTISE IN THE
Call 631-737-1700
G
[email protected]
Nassau Lawyer
n
November 2014
n
NCBA Sustaining Members
ASSOCIATION NEWS
2014 - 2015
NCBA Officers and members of the Nassau/Suffolk Law Services attended the 2014 Commitment to Justice
Fall Wine Tasting reception on Wednesday, October 8th at the Carltun in East Meadow. (l-r) Jeffrey Siegel,
Executive Director Nassau/Suffolk Law Services; John McEntee, NCBA President; Susan Biller,
Nassau/Suffolk Volunteer Lawyer Project; Richard D. Collins, NCBA Secretary; Thomas Maligno, Nassau/
Suffolk Law Services Advisory Council; and, Martha Krisel, NCBA First Vice-President.
Photo by Hector Herrera
The Catholic Lawyers Guild presented
the Denis Dillon Apparitor Fidelis
Award to the Hon. C. Raymond
Radigan at the Annual Red Mass. (l-r)
Hon. Thomas Adams, Administrative
Judge Nassau County; Hon. Timothy
Driscoll, Supreme Court Nassau
County; Hon. C. Raymond Radigan;
and, Hon. A. Gail Prudenti, Chief
Administrative Judge of New York
Photo by Hector Herrera
State.
Linda Kelly Mejias was honored
with the Community Service
Award by the Long Island
Hispanic
Bar
Association
(LIHBA) on October 24th. (l-r)
Roy Aranda, LIHBA President;
Linda Kelly Mejias; and, the Hon.
Helen Voutsinas, who introduced and presented the award.
Photo by Hector Herrera
Former and current General
Attorneys celebrated the 100th
Anniversary of the New York
State Insurance Fund and
Workers’ Compensation in New
York. (l-r) James O’Connor,
Raymond Green, William O’Brien
and Douglas J. Hayden.
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
Edmond D. Farrell
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
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
ATTORNEYS & JUDGES
Make a difference in someone’s life ....
Be a Mentor!
NCBA is looking for mentors for
Middle School students.
8 a.m. to 8:45 a.m. one day every other week
through May 2015
The Jewish Lawyers Association of Nassau
County (JLANC) Annual Dinner and Installation
of Officers was held on October 27th. (l-r) John
McEntee, NCBA President; Hon. Thomas
Adams, Administrative Judge of Nassau
County; Hon. Hope Schwartz Zimmerman,
Supervising Judge of the Matrimonial Center;
Alan Schwartz, JLANC Chairman of the Board;
Samuel Rieff, JLANC President; and, Hon. Peter
Skelos, Appellate Division 2nd Department.
Photo by Hector Herrera
Students in the following
communities need mentors
starting early January 2015
Hempstead • Uniondale • Jericho• Westbury
and especially East Meadow
(l-r) Hon. Peter Skelos installing the officers of the
Jewish Lawyers Association: Michael Mirotznik, Hon.
Denise L. Sher, Candace Ratner, Randi Milgrim and Hon.
Hope Schwartz Zimmerman. Photo by Hector Herrera
Contact Demi Tsiopelas at the Nassau Bar
(516)747-4070 x210
[email protected]
21
22
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November 2014
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Nassau Lawyer
ESTATE PLANNING ...
Continued From Page 11
able can be made on the death of the
first spouse to die with creative drafting. If the will creates a trust for the
benefit of the spouse that qualifies for
QTIP treatment (the income must be
distributed to the spouse annually and
during the spouse’s lifetime only the
spouse can receive principal distributions), this can be accomplished.
When the first spouse dies, if credit
shelter planning is determined to be
preferable the executor will not elect
QTIP status for the trust. The trust will
then effectively become a credit shelter
trust. On the other hand, if it is determined that portability is preferred the
executor will elect QTIP status. This will
cause the trust to be included in the
wife’s estate allowing for the husband’s
exemption to port over to the wife. It
should be noted that the executor could
make a partial QTIP election if appropriate under the facts and circumstances.
Estates
over
$10,680,000:
Portability may not have been designed
for the wealthy, but its use should certainly be considered. Unless these couples are high spenders or poor
investors, there will be some federal
estate tax to pay on the death of the
survivor. The planner must weigh the
estate tax saving (40% federal tax rate)
over a second step-up in basis (23.8%
federal capital gains rate). Lifetime gifting of highly appreciating assets is still
a viable estate planning technique for
taxpayers in this category.
One of the interesting features of
portability is the use of the deceased
spouse’s unused exclusion amount
(DSUE) first against gifts made by the
survivor. In estates of this size thought
should be given to using the DSUE as
soon as possible to protect against the
government’s potential change in the
law and/or the spouse’s remarriage that
could result in the loss of the DSUE
IN BRIEF ...
Continued From Page 8
Business” by Long Island Business
News.
Douglas M. Lieberman, a partner in
Markotsis & Lieberman, was named a
2014 Super Lawyer for Business
Litigation.
Eugene R. Barnosky of Lamb &
Barnosky was selected as one of the “50
Around 50” Award recipients by Long
Island Business News. He will serve as
moderator to a round table discussion of
“The Affordable Care Act – Lingering
Issues" at the 18th Annual PreConvention School Law Seminar.
Douglas E. Libby of the firm will present on the topic “Legal Challenges to
School Elections and Budget Votes” at
the 95th Annual Convention and
Education Expo. Richard Zuckerman
was again selected for inclusion in
The Best Lawyers in America® in the
practice areas of Education Law,
Employment Law – Management, Labor
Law – Management and Litigation –
Labor and Employment. He also presented on the topic “Public Sector
Update: Labor Law Developments After
Affecting Municipalities” at the 24th
Annual Labor & Employment Law
Conference. Sharon Berlin was named
a 2014 New York Super Lawyer in the
practice area of employment and labor
law. Jeffrey A. Zankel was also named
a New York Super Lawyer in the practice area of estate planning and probate.
from the first spouse.
Finally, from a federal estate and
gift tax perspective, portability does not
apply to the Generation Skipping
Transfer Tax. For many clients generational planning is a major factor. For
these clients planning for the maximum
use of the GST is still applicable.
New York State 2014-15
Budget Bill Changes
On April 1, 2014 Governor Cuomo
signed the 2014-2015 New York State
Budget Bill. The Bill makes major
changes to the New York estate and gift
tax rules. Prior to the enactment, the
New York State estate tax exemption
was $1,000,000 and there was no gift
tax. The new law provides an increase
in the estate tax exemption and an
inclusion in the decedent’s gross estate
of gifts made within three years of
death.
The Budget Bill increases the New
York State estate tax exemption as follows:
• For deaths on or after April 1, 2014
and before April 1, 2015 – $2,062,500
• For deaths on or after April 1, 2015
and before April 1, 2016 – $3,125,000
• For deaths on or after April 1, 2016
and before April 1, 2017 – $4,187,500
• For deaths on or after April 1, 2017
and before Jan. 1, 2019 – $5,250,000
• For deaths after December 31,
2018, the exemption amount will be
indexed for inflation consistent with the
federal estate tax exemption.
However, the new law contains a special provision; referred to as a “cliff.” If
the decedent’s taxable estate exceeds
105% of the estate tax exemption the
estate will “fall off the cliff” and the
increased New York State exemption will
be lost. Therefore, the estate will be subject to the $1,000,000 exemption in lieu of
the new increased exemption amount. If
a decedent died on or after April 1, 2014
and before April 1, 2015 with a taxable
estate of more than $2,165,625 the
increased estate tax exemption is lost.
John Maggio, a partner at Condon
& Forsyth LLP, was named a 2014 New
York Metro Super Lawyer in Aviation
& Aerospace.
Jeremy S. Rosof, of counsel to
Shaub, Ahmuty, Citrin & Spratt, LLP,
and a member of the firm's Issues and
Appeals Group, was included on the
Super Lawyers list as a New York metropolitan area Rising Star for the second consecutive year.
Stephen Gassman of Gassman
Baiamonte Betts, P.C. addressed the
Family Law Section of the American
Bar Association in Stowe, Vermont, on
“Cross Examination: A Primer for the
Family Lawyer”. Mr. Gassman was also
selected as a member of the Best
Lawyers in America.
Andrea Tsoukalas, Douglas W.
Atkins, Stephanie M. Alberts and
John M. Comiskey of Forchelli, Curto,
Deegan, Schwartz, Mineo & Terrana,
LLP were named 2014 New York Super
Lawyers Rising Stars. Ms. Tsoukalas,
who concentrates her practice in zoning, land use, environmental and
municipal law matters, is Treasurer of
the Nassau County Women’s Bar
Foundation. Mr. Atkins concentrates
his practice in tax certiorari, real estate
and condemnation. Ms. Alberts is an
associate in the firm’s Tax, Trusts and
Estates Department. Mr. Comiskey is
an associate and concentrates in commercial, construction, insurance and
employment related litigation.
Joel M. Greenberg, a partner at The
Greenberg, Dresevic, Iwrey, Kalmowitz,
Governor Cuomo’s original proposal
to increase the New York State exemption amount also included a provision to
reduce the top tax rate from 16% to 10%
over a period of years. The new law
retains the 16% top tax rate, for estates
of individuals dying before April 1,
2015. This rate applies to taxable
estates in excess of $10,100,000. The
New York State legislature may revisit
the reduced rate in future Budget Bill
discussions.
For gifts made by a resident of New
York State on or after April 1, 2014 and
before January 1, 2019, the law provides an add-back to the estate on death
of all taxable gifts made within three
years of the decedent’s death. It should
be noted that this is not a reinstatement of a New York State gift tax but
an addition to the gross estate of a New
York State decedent.
As the New York State Exemption
approaches the Federal Exemption the
use of a New York State credit shelter
trust will limit or eliminate the ability
to use portability for federal purposes
and the use of the technique, set forth
above, to obtain the double step-up in
basis. In addition, the New York State
exemption “cliff” creates planning and
will drafting problems for clients and
their estate planners.
Non-Tax Considerations
Even where tax planning may not be
necessary, estate planning is still an
important step for clients. The traditional considerations of asset distribution among beneficiaries and the naming of fiduciaries and guardians remain
as an essential aspect of planning. In
addition to these general issues, inherent in every plan, a well-constructed
design for an estate should consider:
1. The establishment of trust for the
surviving spouse to protect the assets
from a second spouse or family, to provide financial assistance in investing
the assets of the trust, or to create creditor protection.
Lebow & Pendleton Law Group, A
Division of The Health Law Partners,
P.C., was selected a 2014 Super Lawyer
for the fourth consecutive year. Mr.
Greenberg concentrates his practice in
corporate and transactional aspects of
health care law and is an Adjunct
Professor of Health Law at SUNY Old
Westbury. He earned his Juris Doctor
from American University.
Joel G. Wexler, managing partner of
Westbury-based Golden, Wexler &
Buatti, P.C., was named a 2014 Super
Lawyer for the second time.
Debra L. Rubin, senior partner at
Rubin & Rosenblum, PLLC, was recognized as a New York metropolitan area
Super Lawyer for the fourth consecutive year. Ms. Rubin concentrates her
practice in matrimonial and family law.
Paul S. Devine of Goldberg Segalla
was named a 2014 New York Metro edition Super Lawyer in the category of
Civil Litigation Defense.
Charlotte A. Biblow, Heather P.
Harrison and Robert M. Harper of
Farrell Fritz, P.C. received Long Island
Business News’ “Leadership in Law”
Award. Jaclene D’Agostino, an associate in the firm’s Estate Litigation practice group, joined North Shore Child &
Family Guidance Center’s business
advisory council.
Charlene Thompson was selected by
the Long Island Business News as a
“Leader in the Law” as a solo practitioner.
The In Brief section is compiled by the
Honorable Stephen L. Ukeiley, Suffolk
County District Court and Acting County
2. The establishment of trusts for
minor or adult children to, again, provide creditor protection, investment
assistance or to ensure the proper ultimate distribution of the assets.
3. The establishment of special needs
trusts for beneficiaries who are collecting federal or state benefits.
4. The use of charitable giving, and
the creation of a charitable legacy,
either outright or in trust.
5.
The potential for the need to
plan for second marriages.
6. The desire of the client to provide
for pets.
7. The necessity to create a special
distribution pattern relative to the ownership of business assets, especially in a
circumstance where one or more children are active in the business and
other children are not.
Conclusion
It is clear that while estate planning
has changed, it has not died. In fact,
any client that has a will drafted before
2010 (when portability was first enacted and before the enactment of the
2014-2015 New York State Budget Bill)
should be notified that their will needs
review.
With the dramatic changes to the
rules governing estate and gift taxes
over the past few years, many wills contain provisions that are no longer
required. Many plans that were previously based solely on the impact of the
transfer taxes must be reviewed relative
to income tax consequences that may
now have a greater impact. For those
without significant tax concerns, the
issues related to beneficiaries, fiduciaries and distribution patterns move to the
forefront of the decision making process.
Those whose practices focus on
estate planning need not fear. We are
all still very much needed. Just, perhaps … for a slightly different purpose.
Robert Katz is the Senior Partner and Neil D.
Katz is the Managing Partner of Katz,
Bernstein & Katz, LLP in Syosset.
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
COMMITTEE REPORTS ...
Continued From Page 8
Condemnation Law &
Tax Certiorari
Meeting Date 10/31/14
Chair: John V. Terrana
Outgoing Chairperson, Donald F.
Leistman, was presented with a plaque
and thanked for his two years of service. The Committee was brought up to
date regarding the status of the payment of refunds by Nassau County.
New procedures for processing
Stipulations of Settlement and Court
Orders were explained.
The next committee meeting is
scheduled for November 21 at 12:30.
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.
LAWYER
APPELLATE COUNSEL
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Benefit From a Reliable and Knowledgeable
Appellate Specialist
Former Member of Prominent Manhattan Firm
Available for Appeals, Motions and Trial Briefs
Experienced in Developing Litigation Strategies
Free Initial Consultation G Reasonable Rates
Law Office of Neil R. Finkston
8 Bond Street Suite 202, Great Neck, NY 11021
(516) 441-5230
www.FinkstonLaw.com
[email protected]
APPELLATE COUNSEL
ANGELA SIEGEL, ESQ.
J.D., LL.M. (In Taxation)
1205 Franklin Avenue, Ste. 330
Garden City, New York 11530
(516) 741-6100
www.angelasiegel.com
Probate, Estate Administration, Estate Planning
Admitted to Practice in NY & Florida
VICTOR LEVIN
former member of the 10th Judicial
Grievance Committee will represent lawyers
before the current committee and the
Appellate Division
30 years experience • Free consultation
APPELLATE COUNSEL
ANITA NISSAN YEHUDA, P.C.
INVESTMENT LOSSES
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Ph (516) 745-6000
Fax (516) 745-6003
Experienced Appellate Counsel & Dispositive Motion Specialist
BRIEF WRITER AVAILABLE
PHYSICIAN-ATTORNEY
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~ CHARLES HOLSTER ~
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LAWYER
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TO
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Ph. (516) 248-7700 Fax (516) 742-7675 [email protected] [email protected]
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$3,250 Fee for Writing Briefs and Printing
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75 Main Avenue
Sea Cliff, New York 11579
(516) 286-2980
[email protected]
www.dranowlaw.com
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Nassau Lawyer