ALBANY COUNTY BAR A Publication of …...Jacob Verchereau Brian McMahon Ryan Hunlock Bethany Cereo...

President’s Message

MAY 2020

A Publication of the Albany County Bar Association

ALBANY COUNTY BAR ASSOCIATION NEWSLETTER

BarNews

I hope this newsletter finds everyone safe and healthy.

By now, most of us have settled into the new normal of working remotely. Hopefully, the technological challenges we faced early on have been overcome, or suitable work arounds have been devised. If we are lucky, business is still coming in the door (metaphorically) or we are using the extra downtime to tackle those projects that tend to accumulate or to attend those virtual continuing legal education classes that we had difficulty fitting into our schedules before.

As a service to our members, we have waived all fees so that all of our CLE programs are now free. We have added many new weekly offerings and more are

in the works. If you have any requests for programming in a particular area, please let us know. In addition, if you want to present a program, we would love to hear from you.

We will continue to send regular email blasts to the membership regarding the latest news and guidance from Governor’s office and the court system. In addition, links to all the relevant information important to our profession will be continuously updated on our website.

It is too soon to predict when we will be able to resume in-person ACBA gatherings. While we anticipate that many offices may start to gradually reopen in the coming weeks, it is premature to start scheduling any bar association events, given the unpredictable nature of this pandemic. We miss you all and look forward to the day we can gather safely and share some collegial cheer. Until such time, we will continue to host virtual events and encourage everyone to attend.

In closing, I’ll leave you with a phrase I often call to mind when anxiety and uncertainty start to distract me from the present. It comes from an Irish song popularized by the Irish Rovers called “Come by the Hills” and goes like this, “the cares of tomorrow can wait until this day is done.” One day at a time folks, one day at a time. Stay safe and be well.

Michael P. McDermott, Esq. ACBA President 2020 O’Connell and Aronowitz • [email protected]

albanycountybar.org

W H AT ’ S I N S I D E

New Members ..............................2

Committees & Co-Chairs ................3

Diversity Internship Program

Update ........................................3

Spring Weather Hazards ................4

Matrimonial Law Update ...............6

The Practice Page .........................8

Of Counsel ...................................9

Immigration Law Update .............10

Creativity During COVID ..............11

It Was the Best of Times, It Was the

Worst of Times ............................12

Labor and Employment

Practice .....................................14

Law Day Run Thank You ..............15

Surrogate’s Court Proceedings

and Updates ..............................16

Bench & Bar in the News ............16

Membership Forms .....................17

MICHAEL P. MCDERMOTTACBA President 2020

M I S S I O N S TAT E M E N T

THE PURPOSE OF THE ALBANY COUNTY BAR ASSOCIATION is to promote professional collegiality among the bench and bar; facilitate

public service and access to justice for all; and offer programs, benefits and services to enhance the skills of its members.

President Michael P. McDermott

President-Elect Elizabeth J. Grogan

Vice President Mathew P. Barry

Treasurer Hon. Ryan T. Donovan

Secretary William T. Little, Jr.

Immediate Past President Daniel J. Hurteau

Board of Directors Kathleen A. Barclay

Lorraine R. Silverman Eileen M. Stiglmeier Caitlin J. Monjeau Benjamin S. Clark Amanda Kuryluk Benjamin Hill

Mishka A. Woodley Jon Crain

John F. Harwick Hon. Kimberly A. O’Connor Alicia Ouellette ex officio

Hon. Eugene Devine ex officio

Chair of Admissions Ryan E. Manley

Executive Director Marquita Jo Rhodes

ALBANY COUNTY BAR ASSOCIATION 2020 Officers

Welcome New Members! Jacqueline Aguilar

Jacob Verchereau

Brian McMahon

Ryan Hunlock

Bethany Cereo

Are you ready to join an organization steeped in rich legal history and tradition? For more than 120 years, the Albany County Bar Association has represented the interests of attorneys and judges practicing or living here in Albany County. Our mission is to promote collegiality among the bench and bar, facilitate public service and access to justice for all and to offer programs, benefits and services which enhance the skills of our members.

Please visit us online albanycountybar.org to join today or find membership forms on page 23 of this newsletter.

2 BarNews April 2020 • Albany County Bar Association

albanycountybar.org 3

APPELLATE MOOT COURT PROGRAMCo-chair Justin Brusgul, Esq. • [email protected] Co-chair George J. Hoffman Jr., Esq. • [email protected]

ATTORNEY GRIEVANCE COMMITTEEChair Anthony Luisi, Esq. • [email protected]

ATTORNEYS IN PUBLIC SERVICE COMMITTEECo-chair Aaron Lawson, Esq. • [email protected] Co-chair Patrick Jordan, Esq. • [email protected]

CONTINUING LEGAL EDUCATION (CLE) COMMITTEECo-chair Benjamin Clark, Esq. • [email protected] Co-chair Jon Crain, Esq. • [email protected]

COA DINNER COMMITTEECo-chair E. Hyde Clarke, Esq. • [email protected] Co-chair James Peluso, Esq. • [email protected]

DIVERSITY INTERNSHIP COMMITTEECo-chair Mishka Woodley, Esq. • [email protected] Co-chair Daniel Hurteau, Esq. • [email protected]

GOLF LEAGUEChair Campbell Wallace, Esq. • [email protected]

JUDICIAL QUALIFICATIONS COMMITTEEChair Kathleen A. Barclay, Esq. • [email protected]

MEMORIAL SERVICE COMMITTEEChair BJ Costello, Esq. • [email protected]

MOCK TRIAL COMMITTEEChair Ryan Manley, Esq. • [email protected]

NEWSLETTER COMMITTEEChair John Harwick, Esq. • [email protected]

PRO BONO ADVISORY COMMITTEEChair Lorraine Silverman, Esq. • [email protected]

SMALL AND SOLO FIRM COMMITTEEChair Sarah Gold, Esq. • [email protected]

YOUNG LAWYERS COMMITTEECo-chair Mackenzie Kesterke, Esq. • [email protected] Co-chair Elizabeth Yoquinto, Esq. • [email protected]

COMMITTEES & CO-CHAIRS

DIVERSITY INTERNSHIP PROGRAM UPDATE

Want the most from your membership? Committee work is a great way to get and stay connected, as well as gain exposure within the legal field and beyond. Let us know your interest in a particular committee or feel free to contact the co-chairs directly to start a conversation. Please visit us online albanycountybar.org to read more about all the different Committees, many by Presidential appointment.

As the 2019-2020 academic year draws to a close, I am excited to announce the expansion

of the ACBA Diversity Internship Program as we prepare for a “new normal” within the legal profession and our local community. The appointees referenced below are a team of attorneys committed to building upon our diversity program efforts over the last two decades and eager to support our students and law firms as they navigate the upcoming year and beyond. We thank each and every one of you who have participated in, contributed to and supported the ACBA

Diversity Internship Program to date. And we encourage you to contact us if you are interested in learning more about the ACBA Diversity Internship Program. We are very excited about the journey ahead and look forward to sharing the student profiles of our 2019-2020 Cohort in our next newsletter publication. Together we can create the change we want to see in the world.

COMMITTEE MEMBERS

Mishka Woodley, Diversity Internship Program Co-chair, Farrell Fritz, P.C.

Daniel Hurteau, Diversity Internship Program Co-chair, Nixon Peabody

Hon. Randolph Treece, Program Advisor, Retired Magistrate Judge to the U.S. District Court for the Northern District of NY, E. Stewart Jones Hacker Murphy LLP

Ryan Manley, Program Vice Chair, Harris, Conway & Donovan, PLLC

Serena White-Lake, Committee Member, NYS Office of Children and Family Services, Albany Law School

Sonia Bennett, Committee Member, Jackson Lewis P.C.

Adriel Colon, Committee Member, New York State Bar Association

“…Try to live your life in a way where you will not regret years of useless virtue and inertia and timidity. Pick up the battle. Take it up. It’s yours. This is your life. Make the world better just where you are.” MAYA ANGELOU

Mishka Woodley, Esq. • Farrell Fritz P.C. • [email protected]

4 BarNews May 2020 • Albany County Bar Association

Spring Weather Hazards

WHILE THEY MAY SEEM LIKE OPPOSITE ENDS OF THE ‘WEATHER’ SPECTRUM, BOTH FIRES AND

FLOODS CAN OCCUR DURING THE SPRING HERE IN THE NORTHEAST UNITED STATES.

FloodingHeavy rains during late winter and early spring have brought extensive flooding to parts of the southeast United States. In mid-February, heavy rains resulted in flooding which required school closures in the Birmingham, Alabama region. Areas from Houston to Atlanta received upwards of 15 to 20 inches of rainfall in February, exceeding 8 inches above normal in some places. Tuscaloosa, Alabama received 15.49 inches of rainfall in February, beating the old record of 14.79 inches, set back in 1961.

As of mid-March, over 90 river gauges in the U.S. were still above flood stage, many of those located in the Southeast. The National Weather Service long-range flood risk through May is high across the Southeast and northward into the Midwest, where snow melt often results in mainstem river flooding during the spring. Here

in the Northeast, snow melt likewise can result in flooding along mainstem rivers as the water works its way through our river and stream networks. Additionally, warm spells can result in rapid breakup of ice on rivers and cause ice jam flooding. In particular, the Mohawk River near Schenectady, New York can flood due to ice jams between February and April. In February 2018, a historic 17-mile long ice jam caused flooding worries from Schenectady westward along the Mohawk River.

The key to minimizing flooding, both as a result of snow melt and ice jams, is to have a slow, easy warmup in the spring, thus spreading out the snow melt and ice breakup over time. Extreme or early season warmth plus heavy rainfall can cause rapid melting of the snow pack which builds up in the mountains during the winter, and flooding ensues. Flooding can occur over a period of several days as the water moves through the river network. As of early March, snow pack remained present across much of northern and central New York. During late February and early March, a lake-effect snow storm brought double digit snowfall totals to parts of the Tug Hill Plateau and Adirondacks.

Points to the south and east, from New York’s Capital region to Long Island, had little to no snow pack present. However, unseasonably warm conditions during the second week in March have led to the rapid disappearance of the winter snow pack in many areas of New York State except the Adirondacks and Tug Hill Plateau (Fig. 2).

Flooding can occur at any time of year and in any part of the country. If you have outdoor plans, be sure to pay attention to the latest National Weather Service forecasts, watches and warnings. It is important to remember never to drive through flooded roadways. Road conditions may be compromised underneath floodwaters. Only six inches of water is enough to reach the bottom of many passenger cars and cause stalling, while a foot of running water is enough to carry away many vehicles.

FiresWhile most of us think of wildfires as something that impacts the western United States, there actually is a ‘fire danger’ season here in the Northeast. Weather conditions favoring enhanced fire danger are warm, dry and windy

Alicia Wasula • [email protected] • ACBA Business Member • Shade Tree Meteorology

FIRE AND RAIN:

Figure 1: Ice jam on the Mohawk River near Rexford, January 2018. Courtesy: Times Union

Figure 2: Snow depth as of March 10, 2020. Courtesy: NOAA/NOHRSC.


weather. In the Northeast, fire danger seasonally peaks during the spring, when ample dry brush is present and the leaves have not yet emerged on trees. The New York State Department of Environmental Conservation (NYSDEC) notes that forest fires, brush fires, grass fires, and others are all classified as ‘wildfires’, which by definition burn uncontrolled through vegetation (http://www.dec.ny.gov/lands/42378.html).

The NYSDEC also notes that 95% of wildfires in New York State between 1993 and 2017 were caused by humans, while lightning strikes account for the remaining 5%.

In 2010, a statewide burn ban was instituted between March 16 and May 14. During this time frame, residential burning is prohibited. This ban has helped to reduce the average number of spring fires by 42.6% (https://www.dec.ny.gov/press/116637.html). The NYSDEC issues periodic fire danger maps which can be found here: http://www.dec.ny.gov/lands/68329.html.

On March 10, hiking was temporarily banned at Hudson Highlands State Park Preserve, located north of West Point on the east side of the Hudson River, as multiple brush fires were burning in a 300-acre region of the park. The fire resulted in damage to some vehicles and resulted in delays on the Metro-North train schedule, but no injuries or fatalities were reported.

In short, spring in the Northeast can bring many weather hazards; we have discussed two of them here. Be sure to have a reliable source for weather information, especially if you have plans to be outside in the warmer weather. National Weather Service forecasts, watches and warnings are available via a large number of free weather apps, television, the internet, and of course via NOAA Weather Radio.

SPRING WEATHER HAZARDS (continued from p.4)

Figure 3: NYS wildfires, 2003-2017. Courtesy: NYSDEC

Figure 4: Brush fires burn at Hudson Highlands State Park Preserve, March 10, 2020. Courtesy: Times Union.

Advertising Policy For BarNewsAdvertising & articles appearing in the ACBA Newsletter does not presume endorsement of products, services & views of the Albany County Bar Association.

2020 RATES AND DEADLINES: Albany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words).

The rates for all photo ready ads are: full page (8.5" x 11") = $550; half page (7.5" x 5") = $375; Quarter page (3.5" x 5") = $300; Business card size (3.5" x 2 .5") = $200.

CLASSIFIED ADVERTISING POLICY: All ads must be prepaid and in writing. We also hold the right to edit all ads. For display advertising rates and information, please call (518) 445-7691. All ads must contain wording “Paid Advertising” at the top. It shall be the policy of the Albany County Bar Association that no advertisement should indicate any preference, limitation, specification, or discrimination based on color, handicap, religion, sex, national origin, or age.

CHANGE OF SCENE AND BENCH & BAR IN THE NEWS: Provided at no cost to our members and inclusion is limited to ACBA Members. All notices must be submitted in writing. E-mail is preferable.

DEADLINE: The second Friday of the prior month. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 545, Albany, NY 12207. We also take credit cards, call (518) 445-7691.


MATRIMONIAL LAW UPDATE

NEW ELECTRONIC FILING SYSTEM

Commencing on May 4, 2020, the Unified Court System made available a system of secured document transmissions by court users to judges and clerks of the

court. The system is named the Electronic Document Delivery System (“EDDS”). The EDDS is a document delivery portal that will allow remote and immediate delivery of digitalized documents throughout the Unified Court System. The EDDS may be used for the filing of documents in pending cases in any courts, and will also permit the filing of documents in “non-essential matters”. Non-essential matters are legal proceedings other than those deemed “essential” during the COVID-19 health emergency. The EDDS may be used in Family Court and Supreme Court for family law practitioners.

The EDDS was created for the expansion of “virtual” court operations and is intended to reduce the need for the delivery or filing of paper copies of documents with the courts and the clerks offices during the COVID-19 health emergency. This new system provides for users to electronically deliver documents to the courts and to file documents electronically in many courts that do not usually permit electronic filings. The EDDS may not be used in matters in which the New York State Courts Electronic Filing System (NYSCEF) may be used for filing matters where NYSCEF is available.

The EDDS was also established to reduce the filing of papers in person or through the mail which can be difficult, inefficient, or even currently impossible. It is important to note that the EDDS is not designed to supplant those procedures, and should not be used for filing “emergency applications”. If a filing is made through the EDDS, and if a filing fee is required, the payment of the fee through an on-line credit card is available, or, in some cases, a telephonic credit card transaction.

EDDS filings do not constitute service on

other parties. For service to be effectuated, the sender must serve the other parties by other means, e.g., electronic service by way of e-mail and/or facsimile.

Information, details, and directions for the EDDS are provided on the nycourts.gov. website. The website notes that considering current operation restrictions, it may take one or more days for a filing request to be reviewed and approved. The rollout of this newly created program will likely not be without issues.

MOTION TO VACATE A JUDGMENT OF DIVORCE

In Vecchio v. Vecchio, 2020 Westlaw 526541 (3d Dept. April 9, 2020), the parties entered into a stipulation placed upon the record in open court in which they resolved all issues of equitable distribution, maintenance, child custody and support, and agreed to a divorce on the grounds stated in the complaint. Both parties were represented by counsel, and the Acting Supreme Court Justice inquired of the parties in a thorough colloquy during which the plaintiff-wife stated on the record that she had discussed the terms of the stipulation with her attorney beforehand, understood them, and was agreeing to the stipulation voluntarily. The plaintiff-wife further stated on the record that she had not been forced, threatened or coerced into agreeing to the stipulation; confirmed that she was satisfied with the performance of her attorney; and denied that she was under the influence of any drugs or alcohol that would impair her ability to enter into the stipulation. The plaintiff-wife thereafter executed the requisite Adoption of Oral Stipulation and Opting-Out Affidavit in which she made similar representations.

The stipulation of settlement was incorporated but not merged into a 2011 Judgment of Divorce. Seven years later, the plaintiff-wife moved to vacate the stipulation and the divorce judgment, which resulted from it. After denial by the Supreme Court to vacate the Judgment of Divorce, the wife appealed. The Appellate Division affirmed, holding the well-settled law that stipulations of settlement entered into in open court, particularly those set forth by counsel and accepted by the parties on the record, are favored by the courts and will not lightly be set aside.

The Court further noted that stipulations of settlement are “construed as independent contracts and will only be vacated in the presence of ‘cause sufficient to invalidate a contract such as fraud, collusion, mistake or accident’, a showing of unconscionability or a conflict of public policy” Matter of Badruddin, 152 AD3d 1010, 1014 [2017].

APPEAL OF A DOMESTIC RELATIONS ORDER

In Holderman v. Holderman, 2020 Westlaw 527620 (3d Dept. April 9, 2020) the plaintiff-wife appealed a Domestic Relations Order (DRO) issued in August of 2018, concerning the division of her NYS Teachers’ Retirement System (defined benefit pension) as part of the equitable distribution of assets in the parties’ divorce action. The Appellate Court held that there was no indication in the record that the wife raised any objections to the DRO prior to its entry, and held as a threshold matter that a DRO may not be appealed as of right (see Zebrowski v. Zebrowski, 28 AD3d 883, 884 [2006]; Lavin v. Lavin, 263 AD2d at 932-933, and see generally CPLR 5701[a]). Considering the sparse record on appeal, the Appellate Court declined to treat the wife’s Notice of Appeal as an application for leave to appeal (see Gormley v. Gormley, 238 AD2d 545, 546 [1997], compare Sprole v. Sprole, 155 AD3d, 1345, 1346 [2017]); Lavin v. Lavin, 263 AD2d at 932-933).

ROLE OF ATTORNEY FOR THE CHILD(REN)

In Matter of Jennifer VV v. Lawrence WW, 2020 Westlaw 527508 (3d Dept. April 2, 2020) there was an appeal from a Decision and Order of the Saratoga County Family Court on the issue of a custody modification application filed, in part, after the mother had remarried and moved to a new residence in a different school district from where the children had been attending. The significant majority of the Appellate Division’s Memorandum and Order reviewed the role of he assigned Attorney for the Children (“AFC”).

In connection with the appeal, the AFC initially submitted a letter to the Appellate Division indicating that he did not intend to file a brief in the appeal because the children, who were approximately 10 and

Gerald P. Leary, Esq., • Balzer & Leary P.C.


6 years old, were “too young to formulate an independent opinion and provide a foundation for their respective opinions” in expressing his views on the children’s best interests.” The Appellate Division rejected the letter from the AFC, and directed the AFC to submit a brief in compliance with the Appellate Division’s practice rules. The AFC complied and filed the brief in which he reiterated his position set forth in his initial letter submitted to the Appellate Division, which brief did not provide any indication of the children’s preferences. The Appellate Division noted that the Rules of the Chief Judge require that an AFC in a custody or visitation proceeding “must zealously advocate the child’s position” (22 NYCRR 7.2[d] see 22 NYCRR 7.2[c], and further provide that, “i[f] the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes what the child wants is not in the child’s best interests”. (22NYCRR7.2 [d][2]; see Matter of Cunningham v. Talbot, 152 AD3d 886-887 [2017]. The Appellate Court noted that the Rules establish only two circumstances in which an AFC may adopt a position which does not reflect the child’s wishes - specifically, when he or she “is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in substantial risk of imminent, serious harm to the child”. (22 NYCRR 7.2[d][3]; see Matter of Mark T. v. Joyanna U., 64 AD3 at 1094). The Appellate Court found the AFC wholly failed to fulfill the obligations imposed by these provisions upon this appeal.

The Appellate Court held that it was the AFC’s obligation to “consult with and advise the child[ren] to the extent of and in a

manner consistent with [their]capacities”. (22 NYCRR 7.2[d][1]). Even when it is appropriate for an AFC to substitute his or her judgment for the child’s preferences, the AFC must nevertheless inform Family Court of the child’s wishes, if authorized by the child to do so. (see 22 NYCRR 7.2[d][3]). The Appellate Court also referenced that, although the AFC met with the children during the Family Court proceeding, it did not appear that the AFC met or spoke with the children again during the appeal. As a result of all of these determinations, the Appellate Court ruled hat the AFC will be relieved of his assignment, the Court’s decision (Appellate Court) will be withheld, and new counsel will be assigned to represent the children.

WILFUL VIOLATION OF ORDER OF SUPPORT

In Matter of AMANDA YY. v. RAMON ZZ, 2020 Westlaw 528171 (3d Dept. March 13, 2020), a July 2017 order of support provided that the father was obligated - upon written demand accompanied by relevant bills and receipts - to reimburse the mother for 51% of all child care and uninsured health care expenses incurred on behalf of their child, born on 2013. In March, 2018, the mother filed a Petition alleging that the father had wilfully violated the support order by failing to comply with reimbursement of the child’s daycare and uninsured healthcare costs. Following a Hearing, the Support Magistrate determined that the father had willfully violated the support order and awarded the mother counsel fees, while also directing judgment against the father for the support arrears. The father filed written Objections, and the Family Court Judge found that the father had violated the July 2017 support order, but that the violation was not wilful.

Accordingly, the Family Court denied the mother’s request for counsel fees, and entered a judgment against the father for the support arrears. The father appealed, arguing that he could not have violated the support order because the mother did not provide him with written demands for reimbursement in accordance with the support order. The Appellate Division affirmed the Family Court’s Decision on Objections, citing well-settled law that “a showing that a parent has failed to pay child support as ordered establishes a wilful violation on a prima facie basis, and ‘shifts the burden to the parent who owes the support to come forward with competent, credible evidence of his or her inability to pay’” (Matter of Shkaf v. Shkaf, 162 AD 3d 1152, 1153 [2018]). The Appellate Court found that contrary to the father’s assertion of no written demands were provided to him, the evidence showed the mother’s emails and attached documentation constituted written demands, triggering the father’s reimbursement obligations. The Appellate Division agreed with the Support Magistrate’s findings that “[To] construe [the mother’s emails] is anything but a demand [for reimbursement] defies logic and common sense”. The Appellate Court did not sua sponte address the Family Court’s denial of attorney’s fees to the mother as presumably there were no Objections filed by the mother in Family Court with regard to her denial for an award of attorney fees. FCA §438(b) provides that: “In any proceeding for failure to obey any lawful order compelling payment of support... the Court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner or person on behalf of the children.”

MATRIMONIAL LAW UPDATE (continued from p.6)


The Practice PageHon. Mark C. DillonJustice of the Appellate Division, Second DepartmentAdjunct Professor of New York Practice, Fordham Law School [email protected]

CPLR 312-A IS THE MOST RECENT ADDITION TO THE VARIOUS AVAILABLE METHODS FOR

SERVING PROCESS, but since time flies, it is already past its 21st anniversary.

Everyone in the legal community agrees that service of process is a technical endeavor. Even process servers who make their living performing these tasks, and who are well versed in the statutory details, are not infallible. In the 1980s, there were well-founded concerns that the technicalities of the traditional methods for serving process were onerous, not to mention there being instances of “sewer service” where the process described in affidavits of service did not actually occur. 1

Personal service, which sounds straight-forward, involves technicalities such as whether the description of the person served in the affidavit of service matches that of the defendant.2 Service by suitable age and discretion spawns litigation over whether the person receiving the summons was in fact of a suitable age and/or discretion. 3 The “nail and mail” method generates litigation over whether the process server exercised “due diligence” in first attempting service personally 4 or by suitable age and discretion. 5 Alternate methods of service that may be permitted upon application to the court, such as service by publication, 6 unrealistically assumes that target defendants

read the Legal Notices of newspapers. I’ve never done so. Have you?

Enter CPLR 312-a in 1989. The statute represented a well-intentioned effort to avoid the vicissitudes of serving process under the traditional methods, by instead using a new method that is simple, cheap, and verifiable. It has not been the panacea that was hoped, but is used by some attorneys to good effect. The idea behind CPLR 312-a is simple but afflicted by its own technicalities. The plaintiff ’s summons with notice, summons and complaint, or notice of petition and petition, is served upon the defendant by mail, properly addressed and posted. The mailing may be addressed to any location where the defendant is at, whether a residence, domicile, place of business, or other. The mailing is accompanied by two copies of a Statement of Service by Mail (the “Statement”), one of which is to be executed by the defendant and returned to the plaintiff ’s counsel, and the second copy kept by the defendant. CPLR 312-a provides a template of the language that is to be used in the Statement. Defendants are to execute the Statement within 30 days of its receipt. Service is deemed complete upon the defendant’s execution of the Statement, and the Statement has the same force and effect as an affidavit of service. 7 To facilitate matters, the plaintiff is required to include with service a properly-addressed, postage pre-paid return envelope. Service by this method is defective if two copies of a proper Statement are not provided, or if the service documents fail to include the required pre-addressed return envelope with its 55-cent stamp.

The problem with CPLR 312-a, beyond its simple technicalities, is that its success depends entirely upon the cooperation of the defendant.

If the defendant fails or refuses to execute and return the Statement, the plaintiff must use another method of service from scratch, and hopefully has enough time left under the 120-day timeframe of CPLR 306-b to do so without need of a time extension. 8 The only penalty for a defendant’s non-compliance is to reimburse the plaintiff for the reasonable expenses of service by another method. 9 That expense may be minor compared to the overall costs of the litigation, or when damages are sought in the tens or hundreds of thousands of dollars, or millions. Defendants have little incentive to comply.

As litigators, you will do as you wish for serving process. CPLR 312-a represents a good concept, but has not worked out over its two decades quite as well as originally hoped.

1 Shaw v Shaw, 97 AD2d 403, 404 (2nd Dept. 1983).

2 Ismailov v Cohen, 26 AD3d 412, 413 (2nd Dept. 2006).

3 Room Additions, Inc. v Howard, 124 Misc.2d 19 (Sup. Ct. Bronx Co. 1984).

4 N.Y. CPLR 308(1).

5 N.Y. CPLR 308(2); E.g., McSorley v Spear, 50 AD3d 652, 653-54.

6 N.Y. CPLR 316.

7 N.Y. CPLR 312-a(c).

8 Komanicky v Contractor, 146 AD3d 1042 (3rd Dept. 2017).

9 N.Y. CPLR 312-a(f).

Mark C. Dillon is a Justice of the Appellate Division, 2nd Department, an Adjunct Professor of New York Practice at Fordham Law School, and an author of CPLR Practice Commentaries in McKinney’s.

Service of Process by CPLR 312-a


Of Counsel Art Siegel, Esq.Bond, Schoeneck & King, [email protected]

“Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel in order to be tough.” FRANKLIN DELANO ROOSEVELT

“It’s a little embarrassing that after 45 years of research & study, the best advice I can give people is to be a little kinder to each other.” ALDOUS HUXLEY

“Kindness”, or as the legal profession likes to call it, “civility”, should be intuitively and universally practiced without condition or agenda. Nevertheless,

New York has “Standards of Civility”, contained at 22 NYCRR, Part 1200 App. A, which state the obvious as to how we should treat one another. Just last month, these Standards were amended to specifically include what had only been vaguely referenced: our behavior outside the courtroom, in transactional and other client settings. I endeavored without success to find recent cases where these standards were put into action and acknowledged by the court. Unfortunately, I could find only the opposite: judges admonishing attorneys for rude and uncivil behavior. So instead I decided to explore civility from two different angles: How our first President, George Washington, approached civility, and how a Professor of Management examined civility in the context of business productivity and job satisfaction.

GEORGE WASHINGTON’S “RULES OF CIVILITY & DECENT BEHAVIOR IN COMPANY AND CONVERSATION”

As a schoolboy, our first President copied out by hand the “110 Rules of Civility”, based upon

a 16th Century text used by Jesuit instructors to teach its young students. These rules guided President Washington’s thinking and behavior as he helped shape our Nation into a democracy of laws and ethical norms. Given our current state of affairs, quite a handful of these relatively ancient rules are well worth revisiting and freshly integrating into our governance, daily lives and legal professions. They cover the spectrum, and speak for themselves: 1) Every action done in company ought to be with some sign of respect to those that are present; 2) Shake not the head, feet, or legs; roll not the eyes; lift not one eyebrow higher than the other, wry not the mouth, and bedew no man’s face with your spittle by approaching too near him when you speak; 3)Turn not your back to others, especially in speaking; 4) Speak not injurious words neither in jest nor earnest; scoff at none although they give occasion; 5) Play not the peacock, looking everywhere about you, to see if you be well decked, if your shoes fit well, if your stockings sit neatly and clothes handsomely; 6) Use no reproachful language against any one; neither curse nor revile; 7) Be not tedious in discourse or in reading unless you find the company pleased therewith; 8) Think before you speak, pronounce not imperfectly, nor bring out your words too hastily, but orderly and distinctly; and the last but not least of the 110 Rules: Labor to keep alive in your breast that little spark of celestial fire called conscience.

INCIVILITY HURTS NOT ONLY FEELINGS BUT ALSO THE BOTTOM LINE

It turns out that it pays to be kind. Christine Porath, a Professor of Management at Georgetown University, has dedicated her professional life to showing that in the business world, kindness and basic civility is more profitable than the alternative. In a poll of 800 managers through 17 industries, Professor Porath found that where there was a lack of civility:

• 48% intentionally decreased their work effort.

• 47% intentionally decreased the time spent at work.

• 38% intentionally decreased the quality of their work.

• 80% lost work time worrying about the incident.

• 63% lost work time avoiding the offender.

• 66% said that their performance declined.

• 78% said that their commitment to the organization declined.

• 12% said that they left their job because of the uncivil treatment.

• 25% admitted to taking their frustration out on customers.

Another study found that in Fortune 1000 companies, managers on average spend the equivalent of seven otherwise productive weeks every year dealing with incivility issues. Creativity is also negatively impacted. Individuals treated rudely were 30% less creative and had 25% fewer and less original ideas. Of course, being kind is an end in and of itself, but these ancillary rewards should provide further incentive.

As we face the enormous challenges presented by the Coronavirus, there is very little that is under our direct control. However, no physical isolation or distancing can take away our power to be kind to one another. As Henry James put it: “Three things in human life are important: the first is to be kind; the second is to be kind; and the third is to be kind.”

Please stay safe and healthy. Questions, thoughts, email me at [email protected] or 518-533-3211.

News and Views From One General Counsel


IMMIGRATION LAW UPDATE

So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain

immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. Most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did he do it? Politics as usual.

First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.

The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or

children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).

But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020.1 U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended.2

Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”

In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.

I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics

professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.”3

When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.

I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.

The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.

1 U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.

2 Importantly, asylum seekers are not prohibited from coming to the United States.

3 Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.

David W. Meyers, Esq. • Meyers and Meyers, LLP • [email protected]

Immigration and COVID-19 (3.0)


WE ARE ALL struggling, whether it’s from living alone and craving companionship or all the household members being on edge and forgetting how to support each

other. Some of us are working from home, others unemployed. We all have the common theme of daily drudgery- not even remembering what day of the week it is because, frankly, they are all the same. Even if we are in the stage of lifting the pause, a life of going out to dinner or a movie or to hear live music.

One way to approach these issues is with creativity. So, you think: I can’t draw, don’t play a musical instrument and don’t plan to do any theatre acting in front of the family. Here are some suggestions for getting your creative juices going:

1. Make a card and send it to a friend or family member. Say something thoughtful. People love mail especially under the current circumstances;

2. Create a playlist of happy songs - perhaps from your growing years - and listen to it;

3. Attack the stack of photos you have sitting around and place them in a scrapbook;

4. Color - there are tons of templates online. It’s a great mindful exercise and is fun;

5. Put together a collage - old photos, magazine pix;

6. Buy some new tea online and taste a new one each day;

7. Grow an herb garden in a pot. Make sure to smell the aromas;

8. Listen to live recorded Albany Symphony or Philadelphia Orchestra concerts;

9. Do a new recipe challenge with a friend. You each pick out a new recipe and each of you makes the recipe and compares notes on how it came out.

10.Find an online yoga or tai chi class and move your body in new ways. There are tons on youtube.

I hope you and your family are safe.

Ann Lapinski, Esq. Retired • [email protected]

CreativityDURING COVID

/ Employment-based immigration - global talent acquisit ion and retention for temorary and permanent workers

/ Business immigration ( I -9, compliance and audits)

/ Family-based immigration (marriage, f iance/e, and al l other family relat ionships)

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518.487.7600One Commerce Plaza . Albany, NY 12260

Discover more at:www.woh-immigrationlaw-ny.com

THE CAPITAL REGION’S PREMIER IMMIGRATION LAW FIRMWhiteman Osterman & Hanna’s Immigration Practice Group is your resource for:


Will plug-in justice take us where we want to go?

THE MEMORABLE OPENING LINE in the Charles Dickens’ classic novel “A Tale of Two Cities,” draws us into what measures were taken in another time of crisis. Removal of heads with a guillotine during the French Revolution seemed to have gone over well with the spectators, but not so much to those who lost their heads.

Lopping off Constitutional safeguards at a time when expediency seems to be the only way to go is like chopping down Truffula trees, the objects of concern in another great book “The Lorax” by Dr. Seuss. The Lorax, defending his beloved Truffula trees, would shout at whoever would listen: “I speak for the trees. For the trees have no tongues.” Is this a characterization you’d put down on your resume? We are the Lorax for our clients. We defend those who cannot defend themselves.

The Merriam-Webster dictionary defines stare decisis “as a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice. Everyone pretty much agrees what stare decisis means. Is there a consensus on “justice?” Or is it, like beauty, in the eyes of the beholder?

COVID-19 dropped down on us just about the same time meaningful measures had been enacted to get us closer to the promise of our constitutional democracy – Due Process and Equal Protection of the Law. Should we be

looking backward or forward for answers to the question of how to shape the future?

For centuries, defenders of those accused of legal transgressions have assumed the role of knights taking on dragons. Vegas odds makers, villains, and fair damsels didn’t give the knights much of a chance. We’ve all heard of the exploits of heroes who succeeded, but what about all the others the dragons gobbled up? And, how did the knights that slayed the dragons do it? Advocacy! They weren’t bigger and stronger, but if they had their swords and shields forged by makers implementing constitution specifications, they had a shot.

Conventional wisdom in advising clients what to do if they get arrested, knowledge we acquired in kindergarten clamming up when the teacher wanted to know if you were the one who took Zoey’s pencil, is to tell them to take the 5th. Over the years, the 5th Amendment has played a leading role in the theater of advancing Constitutional rights. The plague we have and will be confronting already has taken its toll on historic safeguards. The 6th Amendment, for the most part, has been waiting in the wings. The time has come for the 6th Amendment to take center stage.

The 6th Amendment begins with “…the accused shall enjoy the right to a speedy and public trial…” How’s that for openers? Did any client ever tell you how much they enjoyed the trial? And, the next notable provision says

and “… to be confronted with the witnesses against him…” It sounds to us that what they were writing down with quill pens on parchment, not downloading on a laptop, a couple of hundred years ago is more important than ever today.

Tinkering with what was conjured by men in wigs who went home at the end of the day to their wives and slaves might not be a bad idea, but, after all, the Founding Fathers didn’t dream up the idea. In Apostles 25:16 (even the Bible had citations), when asked about why he was bothering to give Paul a trial, the Roman Governor (not to be confused with any other governor) Porcius Testus said: “It is not the manner of Romans to deliver any man to die before the accused has met his accusers face- to-face.”

How about imagining our Constitutional precepts as an old car? You’ve had the reliable

Michael Feit, Esq. • Albany County Public Defender’s Office • [email protected]

Rebekah Sokol, Esq. • Albany County Public Defender’s Office • [email protected]

It Was the

It Was theBEST OF TIMES,

WORST OF TIMES


Saab or De Soto for many years; drove the kids to school, made good time in it heading for the beach, and your favorite car of all times always got you through the snow. Is it time for a change? Automobiles manufactured 100 years ago are still being driven, but lately you’ve been spending a lot of hard-earned cash to keep the thing running. Has the time come to trade it in for a newer model?

The Governor of the State of New York and the Chief Administrative Judge have taken our car off the road and put it in impound. How and when do we get it back? And, when we do, will it be the same? Skype and Zoom might be speedy, but is that what the 6th Amendment is talking about? There are a multitude of circumstances where, for one reason (hopefully good ones) courtrooms are closed from the public, hearings denied, and trials delayed. Who said “Justice delayed is justice denied?” Well, that depends on how far back you want to look. The phrase is attributed to William Gladstone, who was coming up with catchy aphorisms in the 19th century. In the 17th century, Shakespeare gave Hamlet a few good lines in a soliloquy. One of the lamentations was “…the law’s delay…” Martin Luther King, Jr., wrote “Justice too long delayed is justice denied…” in a letter smuggled out of the Birmingham Jail in 1963.

Getting the ball rolling, one of the major concerns addressed in the 6th Amendment, is essential, especially if your client is waiting for the case to start moving from the local jailhouse. Pleading not guilty, taken literally, or any other way, says “I didn’t do it.” A defendant who shows conviction in trying to avoid conviction wants to look the person who said they did in the eye and ask “how could you?”

For the curious and ambitious, we will step out of character, and offer a few cases you might wish to consider, not believing that anyone will, but to make you think that we know what we’re talking about.

The earliest SCOTUS decision, Mattox v. U.S.,1 laid out three purposes of the Confrontation Clause and why it is so important. More to our present concerns, very few court cases have delved into the digital brume that is video witness testimony, but the issue has come up occasionally. It is widely recognized that virtual testimony is much different than in-person testimony. “Virtual presence created by television falls short of physical presence

in satisfying the elements of confrontation.” Harrell v. State, 709 So.2d 1364 (Supreme Court of Florida, 1998) (declining to find live satellite testimony to be equivalent to live, in-person testimony). SCOTUS has said that the right to a physical face-to-face meeting, however, may only be compromised when “considerations of public policy and necessities of the case” dictate.2

There are specific situations where physical, face-to-face confrontation may not be practicable, and other measures (like testimony over video) may be prudent. Courts have allowed witnesses to testify over video in the following “exceptional” circumstances: certain child sexual assault victims3 , a witness in the witness protection program who happen to be suffering from terminal cancer,4 an 85 year old living in California who had heart disease and coming to New York to testify would surely kill him,5 and a witness coming from Egypt, intercepted by Egyptian authorities who prohibited him from leaving the country because, as an Egyptian citizen, he had not fulfilled his requirement of serving in the military.6 Then again, the video testimony of a witness who, say, lives in another country and would just rather not come back to the US to testify, has been determined to violate the defendant’s Sixth Amendment Confrontation rights.7

In the past, the party offering the witness had to demonstrate these exceptional circumstances. Confrontation rights cannot and should not be dismissed lightly. The Court in People v. Wrotten noted that “[t]elevised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances…. Live testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness’s presence in the courtroom should be weighted carefully.”8

Video testimony aside, what about if courts re-open, but everyone, witnesses included, are wearing face masks? In Coy v. Iowa, the Court used strong words to make its point. “No exceptions to the irreducible literal meaning of face to face.”9

Actually, last year, a California court grappled with the idea of whether the religious face covering of a witness violates a defendant’s Confrontation rights.10 Bizarrely, a few years earlier, a Texas court (who was later overturned

for this…) allowed a witness to testify in a disguise and therefore violate the defendant’s rights.11 Much to a higher court’s horror, a witness in Michigan who claimed he was being threatened was even allowed to testify in a ski mask.12 Pre-pandemic, courts viewed witnesses with obscured faces as a big problem.

Are witnesses less likely to be truthful when they testify remotely, or when their faces are hidden? Do juries have the same ability to assess witnesses’ credibility when they are seen on a screen as opposed to in person? How about if they cannot see the juror’s facial expressions? Or if due to social distancing, the jurors are too far away from a witness to assess body language? Studies have not yet been conducted and social science does not yet reveal the answers to our questions, though if you’re curious, reach out—we have a number of very interesting articles on the subject.

The old-time radio show “The Lone Ranger” wrapped up each episode with one bystander turning to another and asking “Who was that masked man?” When the prosecution asks the same question in trial to their star witness, will the answer be “I can’t be sure. Make her take off the mask.” Can we mandate that if everyone must wear masks, they must be clear, so jurors can see faces and mouths? Would that accommodation satisfy the Confrontation Clause?

In the iconic movie “The Day The Earth Stood Still”, Klaatu, the humanoid alien protagonist who is being hunted by the American military, instructs Helen Benson, his short-term landlady, that if anything bad should happen to him, she is to go to his robot, Gort, with a deactivation message – “klaatu barada nikto.” Klaatu was worried that if he were to be injured or killed, Gort could destroy the earth unless someone turned him off.

Now we’re all Helen Benson. We must find a way to deactivate or call off the forces that threaten to destroy our criminal justice system and the Constitutional safeguards our clients depend on. Stand up for your client’s rights in court and challenge new procedures that slowly break down the system that was just starting to change to become fair for both the prosecution and the defense. In the immortal words of the Lorax: “Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.”

BEST OF TIMES, WORST OF TIMES (continued from p.12)

WORST OF TIMES

continues on p.14 �


LABOR & EMPLOYMENT PRACTICE

In the midst of figuring out and complying with federal and State legislation to address the effects of COVID-19, employers will soon need to focus on a few new workplace

laws – laws that will be with us even after the pandemic ends.

SICK LEAVE FOR NEW YORK EMPLOYEES

The 2021 Budget Bill amends the New York State Labor Law to require all employers, regardless of size, to provide annual sick leave to their employees. In most circumstances, the leave must be paid. Employers with 4 or fewer employees must provide 1 hour of unpaid sick leave for every 30 hours worked, up to 40 hours of unpaid sick leave annually. Employers with 4 or fewer employees that have a net income of more than $1 million in the previous year must provide 1 hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave annually. Employers with between 5 and 99 employees must provide 1 hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave annually. Employers with 100 or more employees must provide 1 hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick leave annually.

The new sick leave may be used by

employees starting on January 1, 2021, and is available for the following purposes: for a mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether that condition has been diagnosed or requires medical care at the time the employee requests leave; for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; and/or for certain absences from work due to domestic violence, a family offense, sexual offense, stalking, or human trafficking, of an employee or an employee’s family member.

Employers may choose the total amount of sick leave at the beginning of the year, but any employer who chooses to frontload leave may not later reduce or revoke the amount of leave provided to any employee based on the number of hours the employee actually worked. Leave must also be carried over from year to year, subject to a usage cap depending on the size of the employer.

Employers are not required to provide additional sick leave to the extent they already have a sick leave or time off policy that provides employees with an amount of leave that meets or exceeds the requirements of the law and that satisfies the accrual, carryover, and use requirements.

PAID TIME OFF TO VOTE

Recall last year – the New York Legislature amended the voting leave law to grant registered voters up to three hours of paid

time off to vote in most public elections, regardless of the amount of time available to an employee to vote outside of his or her scheduled working hours. The law also eliminated the presumption that employees would be considered to have sufficient time to vote outside of their work hours (and therefore be ineligible for paid time off) if they had four consecutive hours between the polls opening and the beginning of their working shift, or four consecutive hours between the end of their shift and the polls closing.

Budget Bill amended New York’s voting leave law to eliminate most of the Legislature’s 2019 amendments. The law now provides registered voters who do not have “sufficient time outside of his or her scheduled working hours” with up to two hours of paid time off to vote in most public elections. The law also reinstates the presumption that employees will be considered to have sufficient time to vote outside of their scheduled work hours if they have four consecutive hours between the polls opening and the beginning of their work shift, or four consecutive hours between the end of their shift and the polls closing.

Employees who do not have sufficient time to vote outside of their scheduled work hours continue to be eligible to take off as much time as will allow them to vote in a covered election, but only up to two hours of that time needs to be paid by the employer. Additionally, employers may still require employees to take any time off either at the beginning or end of the shift.

Stay Safe.

Glen P. Doherty, Esq. • Hodgson Russ LLP • [email protected]

So, the next time you’re in a Skype court appearance or walking into a courthouse filled with so many people wearing masks it looks like Halloween, remember.

Klaatu barada nikto.

1 Mattox v. United States, 156 US 237 (1895).

2 Maryland v. Craig, 497 U.S. 836 (1990).

3 Id.

4 United States v. Gigante, 166 F.3d 75 (2d Cir. 1999).

5 People v. Wrotten, 14 NY3d 33 (2009).

6 People v. Giurdanella, 144 A.D.3d 479 (1st Dept. 2016).

7 United States v. Yates, 438 F.3d 1307 (11th Cir. 2006).

8 Wrotten.

9 Coy v. Iowa, 487 US 1012 (1988).

10 People v. Ketchens, B282486 (Cal. Ct. App. Jun. 7, 2019).

11 Romero v. State, 173 S.W.3d 502 (Court of Criminal Appeals of Texas, 2005).

12 People v. Sammons, 478 N.W.2d 901 (Court of Appeals of Michigan, 1991).

BEST OF TIMES, WORST OF TIMES (continued from p.13)

THANK YOU FROM THE LAW DAY RUN COMMITTEEThank you to everyone who participated in the Albany County Bar Foundation’s Law Day Virtual 5K during the week of May 4, and thank you to our event spon-sor, the Nave Law Firm, (a full service criminal law firm). Through your generous donations, we raised $2,332.58 for the Albany County Bar Foundation.

Since the Law Day Run began in 1994, we have together raised nearly $500,000 for local organizations that provide services to the victims of domestic violence and provide assistance to those seeking justice at the Albany County Family Help Center.

We were happy to have a fun activity that allowed us to get some fresh air and exercise while practicing social distancing. We look forward to seeing you all at our 26th annual Law Day Run this September 10th at the Crossings.

For those of you who participated but haven’t emailed your time/age to Dan Coffey (there were 73 people signed up!), please email him at [email protected] and we’ll update the list.

TOP FINISHERSScott Adelman – 23:28Lauren Owens – 29:53

BY AGE GROUPUnder 20 Greg Courtney

20-29 Audrey Caplan

30-39 Lauren Owens

40-49 Scott Adelman; Lianne Pinchuk-Wladlis

50-59 Nathan Courtney; Nancy Kane

60-69 David Rook

70+ Gayle Hartz

2020

SPONSORED BY:


SURROGATE’S COURT Albany County Surrogate’s CourtHon. Stacy L. Pettit, Surrogate • Alima M. Atoui, Esq., Law Clerk • Deborah S. Kearns, Esq., Chief Clerk

SURROGATE’S COURT OPERATIONS DURING THE COVID-19 PUBLIC HEALTH EMERGENCY

Daily OperationsAlbany County Surrogate’s Court is handling matters through remote or virtual court operations. The Courthouse at 16 Eagle Street remains closed and operations have been consolidated at the Albany County Judicial Center. Authorized court personnel are physically present in this location one day a week to sort mail, process hard copy submissions and to process revenue received by mail. This location is not open to the public. All mail should continue to be sent to Albany Surrogate’s Court, 16 Eagle Street, Room 123, Albany, New York 12207. All matters filed by attorneys must be filed by electronic submission in accordance with 22 NYCRR 207.4-aa, and fees paid electronically can be processed by court personnel remotely.

All matters scheduled to be heard at calendars have been administratively adjourned by order of the Honorable Thomas A. Breslin until further notice. Parties must not appear in court and at this time citations will not be issued. Requests

for preliminary or temporary letters may be filed in matters for which a citation is required.

For contested cases with filed proceedings, the Court will assess matters that can be advanced or resolved through remote court conferencing and will schedule and hold conferences by Skype for Business in such matters upon its own initiative, and where appropriate at the request of counsel. Video teleconferences conducted by the Court, or with court participation, will be administered exclusively through Skype for Business. To request a conference on a pending proceeding, please email the court at [email protected] or upload correspondence to the court through NYSCEF. Our telephones are not being answered at this time.

Electronic Document Delivery Service As of May 4, 2020, the Unified Court System implemented the Electronic Document Delivery System (EDDS), for delivery and filing of documents in place of paper filings in courts throughout the Unified Court System during the COVID-19 public health emergency. For more information on how to use EDDS please refer to the Unified Court System’s Notice to the Public https://iappscontent.courts.

state.ny.us/NYSCEF/live/edds/eddsNotice.pdf. Please note that this system does not replace the NYSCEF e-filing system, and is not yet up and running for Albany Surrogate’s Court, but we anticipate that it will be available in the near future for proceedings that are not able to be e-filed such as guardianships, adoptions and inter vivos trusts. You may access EDDS at https://iappscontent.courts.state.ny.us/NYSCEF/live/edds.htm

Volunteers Needed for Surrogate’s Court Virtual Help Desk Calling all volunteers! A Virtual Help Center is in the works for Albany County Surrogate’s Court and we need your help. Free CLE and training will be offered for all volunteers. If you are interested in being a part of this exciting new initiative, please contact Deborah Kearns, Chief Clerk, at [email protected].

We thank you for your patience and will send out additional notices as the Court’s virtual operations are refined going forward. Please send all inquiries to [email protected]

We look forward to seeing you here in Albany County Surrogate’s Court!

Proceedings and Issues: An Insider’s View

BENCH & BAR IN THE NEWS

TULLY RINCKEY PLLC is pleased to announce that MICHAEL P. MURRAY has joined the firm as Chief Marketing Officer. Michael will be responsible for building and implementing innovative marketing and public relations strategies that support the firm’s growth plan, and support the attorneys across the firm’s practice areas and industry specializations.

Michael brings over 20 years of professional services marketing experience. Prior to joining Tully Rinckey, Michael served as the Director

of Marketing for Whiteman Osterman & Hanna, the largest Albany, N.Y. based law firm. Prior to Whiteman Osterman & Hanna, Michael served as Marketing Manager for BST & Co., CPAs, one of the largest Albany, N.Y. based CPA firms. He has also previously served as Assistant Zone Marketing Manager for State Farm Mutual Insurance Company in Ballston Spa, N.Y. His diverse background includes advertising, direct marketing, web site development, social media and email marketing, business development, proposals, collateral, press releases, and database management.

Michael earned a Master of Business Administration degree from the College of Saint Rose, and a Bachelor of Arts degree in Communications from Seton Hall University. He is a member of the Legal Marketing Association, and a current board member and director of the Northeastern Association of the Blind at Albany Foundation. He previously served as a board member for the American Marketing Association Capital Region Chapter. For more information, please contact Graig Cortelyou at (518) 640-1243 or via email at [email protected].

New Membership FormDUE UPON RECEIPT

For questions or assistance contact: (518) 445-7691 x116 | [email protected]

(This information is kept confidential)

albanycountybar.com | (518) 445-7691

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Cell Phone:

PROFESSIONAL INFORMATION

Organization/Firm:

Business Address:

Phone:

Fax:

Email:

Preferred Address for mailings: ❏ Business ❏ Home

❏ Solo Practitioner ❏ Law Firm ❏ Public Sector ❏ Academic ❏ Judiciary ❏ Corporation ❏ Student ❏ Other

Admission to NY Bar date:

Department:

Admission Elsewhere Date: State:

Law School Attended:

Date of Graduation:

AREAS OF PRACTICE

Please describe:

I would like to be a member of the following committees (descriptions online): ❏ Attorneys in Public Service ❏ CLE Committee ❏ Small/Solo Attorneys Committee ❏ Law Day Run Committee ❏ Young Lawyers Committee

❏ Court of Appeals Dinner Committee

❏ Mock Trial Committee

❏ Newsletter Committee

Are you interested in ACBA’s mentorship opportunities? ❏ Yes ❏ No

Would you like to learn more about pro bono opportunities in the Capital District? ❏ Yes ❏ No

Renewal Membership Form

Membership Renewal InvoiceDUE UPON RECEIPT

For questions or assistance contact: (518) 445-7691 x116 | [email protected]

(This information is kept confidential)

albanycountybar.com | (518) 445-7691

PAYMENT

❏ Check Enclosed ❏ Credit Card ❏ Visa

❏ Mastercard ❏ AMEX ❏ Discover

Card Number:________________________________

Exp. Date:_______________ CVC:_______________

Name on Card:_______________________________

Billing Address: ❏ Firm ❏ Home

PLEASE REMIT PAYMENT TO: Albany County Bar Association 112 State Street | Suite 545 Albany, NY 12207

LEVEL OF MEMBERSHIP (years in the bar)

❏ <5 Year | $95 ❏ Student | $10

❏ +5 Year | $145 ❏ Affiliate | $25

❏ Sustaining | $175 ❏ New Admit

LAWYER REFERRAL SERVICE COSTS

❏ 1-2 Panels | $100 ❏ 5-6 Panels | $200

❏ 3-4 Panels | $150 ❏ 7 Panels | $250

CLE BUNDLE OFFER

❏ <5 Years | $100 UNLIMITED CLE FOR 2020

❏ >5 Years | $200 UNLIMITED CLE FOR 2020 ACBA averages over 25 CLE offerings annually. Sign up to attend all year long for one low price!

FOUNDATION DONATION

❏ I would like to donate $____________ to the Albany County Bar Foundation

The Albany County Bar Foundation focuses on the management and distribution of grants for programs devoted to providing legal services in Albany County.

FREE FOR THE REMAINDER OF THE YEAR

I hereby certify that I am an attorney duly admitted and in good standing in the State of New York or a current law student.

__________________________________________________ Signature Date

TOTAL DUE: _____________________________

NEW!


You’re invited to join

N O R M A N S I D E

Why Normanside?Unlike other local clubs

NO EXTRA FEES

We have no minimums

We have no assessments

In-house food & beverage service

Full golfing privileges

Membership rates don’t spike after 1 or 2 seasons

Join now and receive up to a $2,400 discount on 2020 dues

Memberships include:• Championship golf course access• Full practice facility priveleges and range• Memberships tailored to fit your needs

No initiation • No minimums • No Extra Fees

Call or email today to find out more:(518) 439-4505, ext. 11 [email protected]/membership

Normanside Country Club • 150 Salisbury Road • Delmar, NY 12054

* Promotional offer only valid to new members who have not had a membership within the last five years. Promotion applied to golf memberships only. Valid through June 30th.

50%OFF FULL

MEMBERSHIPS*

Albany County Bar Association112 State Street | Suite 545Albany, NY 12207

ALBANYCOUNTYBAR.ORG

PRSRT STDU.S. POSTAGE

PAID ALBANY, N.Y.PERMIT #749

McCARTHY ADR SERVICES LLC

A Relentless Approach To ResolutionProviding Comprehensive Arbitration and Mediation Services to the Bar

McCarthy ADR Services, LLC provides dispute resolution assistance to attorneys and parties who are involved in litigation. Whether you need a mediator to help the parties resolve the dispute, or an arbitrator who can render a binding decision, contact Judge McCarthy today. Judge McCarthy will continue to conduct mediations and arbitrations via remote videoconferencing during the New York Pause to safely achieve the best and most cost-

effective conclusion to disputed matters.

mccarthyadr.com

255 Washington Avenue Extension, Suite 108Albany, New York 12205Phone: (518) 429-7514

ALBANY COUNTY BAR A Publication of …...Jacob Verchereau Brian McMahon Ryan Hunlock Bethany Cereo...

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Transcript of ALBANY COUNTY BAR A Publication of …...Jacob Verchereau Brian McMahon Ryan Hunlock Bethany Cereo...