Queens Bar BulletinQueens Bar BulletinQueens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500

www.qcba.org

Vol. 75 / No. 2 / November 2011

ARNOLD H. RAGANO, ESQ.

Policing the world with arroganceA ruinous course we doth pursueWe destroy and rebuild with negligenceOur vaunted democracy do we undo

Rome was destroyed by unlimited excessesHistory replete, leaders unconcernedPromising roseate futures without abysmalrecesses

Insouciant, hopefully remain unburned

Our fathomless expenses in wars not wonDraining the fisc with unlimited bentFostering hatred with work undoneIn foreign nations grossly misspent

These funds to reconstructOur tottering structures in dire needAn economic stimulus would then conductA rash of employment this tactic will seed

HypocrisyDerailed

I N S I D E T H I S I S S U EMentoring and Internship Opportunities ..1

Supreme Court Committee Report .........1

Editor’s Note: Introduction to Electronic

Filing.....................................................2

President’s Message...............................3

Queens Bar Hosts Albany Trip ...............3

History Corner.........................................4

Photo Corner: Annual Dinner Pt. 2 ......6-7

Marital Quiz.............................................8

Culture Corner ......................................10

Save The DateQueens CountyBarAssociation

HOLIDAYPARTY

Thursday,December 15

BY SHARON ZIEGLER*

Students are often interested in learning about the legalworld, yet they do not know how they can get involved in it.Referee Elizabeth Yablon is an extraordinary woman dedi-cated to helping students attain the vital resources that theyso badly need. Currently, Hon.Yablon serves as a Referee ofthe NewYork State Supreme Court in Long Island City.Hon. Yablon has recently become Chairperson of the

National Association of Women Judges, District #2‘sCommittee on “Legal Education, Mentoring & InternshipOpportunities”, as well as Chairperson of the “EqualOpportunities in the Profession Committee,” for the NewYork State Women’s Bar Association. She has also servedas Chair of the Mentoring Committee of the Queens CountyBar Association since 2003 and for the past two (2) yearshas been hosting a legal education mentoring and internshipreception with the Chair of the Public Relations Committee,Gregory Brown, Esq.Her goal is to provide access to a wide range of individu-

als who are interested in learning, and give them the oppor-tunities to learn from experts in the field.RefereeYablon has created and has been involved in vari-

ous successful programs in the past which educated theyouth about the law, and the legal profession in general.Hon. Yablon created a symposium, in 2006 titled “MyRights, My Nation, Constitutional Freedoms Now and Intothe Future”, which gives young people the opportunity toanalyze and understand the freedoms guaranteed by the con-stitution and how they affect them, in the hope that they will

be part of continuing to create advances and a better societyfor all. Regular panelists at this program include, Hon.Daniel Lewis, Justice, NYS Supreme Court, Hon. JeffreyLebowitz, Justice, NYS Supreme Court, Hon. ElizabethYablon, Referee, NYS Supreme Court, Alan Rothstein, Esq.,General Counsel of the NYC Bar Association, GabrielBrown, Director of Student Legal Education andOpportunities Program of the NYC Bar Association.Hon. Yablon is presently creating a new up and coming

website or blog called, “LEMIO” (Legal, Education,Mentoring & Internship Opportunities). The primary func-tion of the website/blog will be to make legal internshipsand mentoring opportunities available to as many people aspossible. The website will benefit attorneys, law and collegestudents. The site will provide a list of mentoring and learn-ing opportunities for students. There will be a calendar thatwill be updated on a regular basis listing past and futureevents being held by organizations. Anyone interested ineither hosting or participating in a mentoring program caneasily do so by clicking on “contact us” and filling out theirname, e-mail address and a short message.This website/blog will continue Referee Yablon’s mission

of helping attorneys in need of opportunities as well as toeducate the youth and nurture their interest in the law. Shehas always worked at making law relatable and interesting forall; the launching of LEMIO is her next big step in doing so.

*Sharon Ziegler is presently a Senior at Queens Collegeand plans to attend law school next fall. Intern to Hon.Elizabeth Yablon Referee, NYS Supreme Court

Valuable Legal Education, Mentoring& Internship Opportunities

Presidents of County BarAssociations, from left: John ZMarangos, RocklandCounty Bar Association; Chistopher M. Di Lorenzo, Bronx County BarAssociation; Andrea E. Bonina, Brooklyn Bar Association; James B. Kobak,Jr., New York County Lawyers Association; Marc C. Gann, Nassau CountyBar Association; Seymour W. James, Jr., President-Elect, and Vincent E.Doyle, President, New York State Bar Association.

On October 12th at a ceremony cele-brating Hispanic Heritage Month,Queens County District Attorney, Hon.Richard A. Brown presented an awardhonoring Queens County BarAssociation President, Richard M.Gutierrez. President Gutierrez is thefirst Latino President of the QueensCounty Bar and a past President andfounder of the Latino Lawyer’sAssociation of Queens County.To quote District Attorney Brown;“To celebrate the contributions

of the Latino community inQueens, each year during HispanicHeritage month we honor individu-als of Latino descent who exempli-fy the values of leadership, publicservice and commitment to excel-lence. In years past we have hon-ored Judge Fernando Camacho,Senator Jose Peralta, the Latino

Lawyers Association, Dr. EduardoMarti and last year’s honoree,Assistant District Attorney MarielaP. Herring. This year we are proudto add Richard M. Gutierrez tothose to whom we pay tribute.”Other speakers at the ceremony were

Assistant District Attorney Mariela P.Herring, Bureau Chief of the GangViolence and Hate Crimes Bureau andAssistant District Attorney Frederica E.Jeffries, Supervisor, SpecialProsecutions Division. AccompanyingPresident Gutierrez for the ceremonywas his wife of 24 years Yvette. InRichard’s remarks he expressed hisgratitude to the DistrictAttorney for thishonor especially considering that he,Richard, is a criminal defense attorney.This meant that much more to him thathis “adversary” would honor him as arepresentative of the Latino community.

Queens Bar President Honored

To mark Hispanic Heritage Month, QueensCounty District Attorney Hon. Richard A.Brown honored QCBA President Richard M.Gutierrez, the first Latino President of theQueens County Bar.

THE QUEENS BAR BULLETIN – NOVEMBER 20112

being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be heldat the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will bemade available to members via written notice and brochures. Questions? Please call (718) 291-4500.

PLEASE NOTE:The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as anAccredited Legal Education Provider in the State of New York.

TH E DO C K E T . . .

November 2011

Tuesday, November 29 Criminal Law Series - Pt 2Wednesday, November 30 Motion Practece 1-2 pm

December 2011

Tuesday, December 5 Guadianship Training for Layperson 2:30 - 5:00Thursday, December 15 Holiday Party at Douglaston ManorMonday, December 26 Christmas Holiday - Office Closed

CLE Dates to be AnnouncedElder Law InsuranceLabor Laws Supreme Court & Torts Section

EDITOR’S NOTE

Introduction to“Electronic Filing”

BY PAUL E. KERSON

“Electronic filing” is the waveof the future. It eliminates reamsof paper from the Court system.It saves the State a fortune in fil-ing space costs. It has been for-mally adopted in some parts ofthe sprawling New York StateCourt system. Following is oneexample of how well it is work-ing:JUDGE: “Counsel, we are

on for oral argument of the motion forsummary judgment in this case. All I haveis an empty Orange Folder marked “elec-tronic filing”. Where are the motionpapers and extensive exhibits?OVERWORKED PLAINTIFF’S

ATTORNEY: “Judge, the Part Z Rulesrequire ‘electronic filing’ so I paidAmerican Clerical Service an extra fee to

do just that. Here is my receiptfrom American Clerical show-ing that they electronicallyfiled my motion with the Clerkof this Court.JUDGE: “I don’t care what

you did with AmericanClerical. I want to know whythe motion papers, with exhib-it tabs, are not in the OrangeFolder marked “electronic fil-ing”. You can’t seriouslyexpect me or my overburdened

Law Secretary to decide any motion with-out exhibit tabs, do you? It is the exhibittabs which enable us to quickly flip backand forth among the multi-page contracts,financial reports, police reports and med-ical reports so we can understand the evi-dence in this case without spending hoursscrolling on a computer screen.

__________________Continued On Page 9

Paul E. Kerson

David M. Kaplan Milton Scher

NE W ME M B E R S

NE C R O L O G Y

Margaret BennettAdam P. AntreassianBrittany S.R.A. BisnottDonald S. DomitrzDietrich P. EppersonSabine K. FrancoJason GinesEric A. GreenbaumJose O. HasbunKamil S. Karczmarczyk

Matthew Seung-Kwan KimJessic s. LeisKelly S. MaharajCorry L. McFarlandYitzhak OppenheimMakenna E. PorchPatricia SturmCamelin-Arnold F. TelesfortJosephine WuRomanYushuva

BY: JOSEPH CAROLA III, CO-CHAIRPERSON

CHANGES TO THE PRELIMINARYCONFERENCE ORDER

Sometime last year AdministrativeJudge of Queens County, the HonorableJeremy Weinstein, assembled a task forceof sorts to address perceived inadequaciesin the entire Preliminary Conferenceprocess, from the conference itself to theorders that emanate from these confer-ences. The task force, comprised of attor-neys, court personnel, judges and referees,was charged with making the PreliminaryConference process relevant again. Theresult is a new Preliminary ConferenceOrder, accompanied by PreliminaryConference Part Administrative Rules,which will go into effect early next year.When we started the process, the initial

question was whether personal appear-ances at these conferences are even neces-sary anymore or would the process bemore streamlined by adopting a systemwherein the court simply issues the orderon its own accord. After much discussion,it was agreed that, for many reasons, thereremains a need for represented appear-ances at these conferences.

The next task was to determine whatworked, and what did not work, in theprocess. One of the concerns expressed bythe administration was that cases routinelyappear on the trial calendar in which dis-covery is still not yet completed. The prac-titioner’s knee jerk response to this is that“we are forced to file a Note of Issue,whether discovery is completed or not, asper the terms of the ComplianceConference Order”. While this is true, thisargument really ignores the fact that manypractitioners are dilatory in prosecuting, aswell as defending, their respective cases.Former Administrative Judge StevenFisher was fond of reminding the bar thatthe court does not care what we do withrespect to the prosecution, or lack thereof,of our cases prior to the filing of theRequest for Judicial Intervention. We arefree to do as much, or as little, discoveryas we wish prior to asking the court to getinvolved. However, once the RJI is filed,the court now has an interest in ensuringthe discovery is completed timely.While it is easy to scapegoat the

Compliance Conference part, the fact ofthe matter is we are ultimately chargedwith complying with the terms of the

Supreme CourtCommittee Report

_________________Continued On Page 11

Class of 2012Jennifer M. Gilroy

Richard Harris LazarusGary Francis MiretSteven S. OrlowJames R. Pieret

Class of 2013Gregory J. BrownTracy Catapano-Fox

Mona HaasGregory J. NewmanGuy R. Vitacco, Jr.

Class of 2014Chanwoo Lee

Timothy B. RountreeZenith T. Taylor

Lourdes M. VenturaClifford M. Welden

2011-2012Officers and Board of Managers

of the

Queens County Bar AssociationPresident - Richard Michael GutierrezPresident-Elect - Joseph John Risi, Jr.Vice President - Joseph F. DeFelice

Secretary - Paul E. KersonTreasurer - Joseph Carola, III

Publisher:Long Islander Newspapers, LLC.under the auspices of QueensCounty Bar Association. QueensBar Bulletin is published month-ly from October to May. Allrights reserved. Material in thispublication may not be storedor reproduced in any form with-out permission.

©2011The Queens County

Bar Association.Advertising Offices:

Long Islander Newspapers,149 Main Street, Huntington,

New York (631) 427-7000

Arthur N. Terranova . . . Executive DirectorQUEENS BAR BULLETIN

EDITOR - Paul E. Kerson (kersonpaul@aol.com)ASSOCIATE EDITORS

Richard N. Golden (goldenlaw@nyc.rr.com)Stephen D. Fink (finkylaw@aol.com)

Gary C. DiLeonardo (garygcd@aol.com)Manuel Herman (mannyherman@aol.com)Ilene J. Reichman (momster8931@aol.com)

“Queens Bar Bulletin”(USPS Number: 252-520) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY11743, under the auspices of the Queens County BarAssociation. Entered as periodical postage paid at thePost Office at Jamaica, New York and additional mailingoffices under the Act of Congress. Postmaster sendaddress changes to the Queens County Bar Association,90-35 148th Street, Jamaica, NY 11435.

Send letters and editorial copy to:Queens Bar Bulletin, 90-35 148th Street,Jamaica, New York 11435

Editor’s Note: Articles appearing in the QueensBar Bulletin represent the views of the respec-tive authors and do not necessarily carry theendorsement of the Association, the Board ofManagers, or the Editorial Board of the QueensBar Bulletin.

THE QUEENS BAR BULLETIN – NOVEMBER 2011 3

When I became a member of the QueensCounty Bar Association in 1986, I neverenvisioned twenty-five years later, I wouldbe addressing you as President. Being thePresident is a remarkable experience.Although it requires a great deal of timeand hard work it is an opportunity I willcherish forever.As a young lawyer, I joined the

Association primarily to network, interactwith other attorneys and to meet membersof the judiciary. It seemed to be the bestway to learn how to become a betterlawyer. Membership permitted me to learnfrom seasoned practitioners how to prac-tice law. From these lawyers I learned howto solve some of the legal issues I hadnever encountered before. Being a memberof the Association also gave me the oppor-tunity to mingle with many of the judges Iwould eventually appear before in court.In addition, membership afforded me

the opportunity to increase my knowledgeof the law and to continue my developmentas an attorney. As I increased my partici-pation in the Association, I began to meetand interact with the leaders of the legalcommunity of Queens County.Membership, to this day, still continues toprovide me with networking opportunitiesthat have furthered my legal career.For those lawyers who are not members

of the Association yet, it istime to join. Don’t let theopportunity to enhance yourdevelopment as a lawyer slipby. Become a member today.We need you. Your ideas,knowledge and participationare crucial to our vibrancy andrelevance. There are approxi-mately 6,000 lawyers thateither reside or have an officein Queens County.Unfortunately, most of theselawyers are not members of the QueensCounty Bar. If you know any of theselawyers, please try and persuade them tojoin.On October 4, 2011, the Association,

held a free CLE seminar on RecentSignificant Decisions from Our HighestAppellate Courts. The bar building wasfilled to capacity and buzzing. I wasthrilled to learn that nearly three hundredmembers attended the event. It remindedme of the importance of CLE events heldat the Association.I want to thank the three speakers, J.

Gardiner Pieper, Esq. Paul Shechtman,Esq. and Spiros A. Tsimbinos, Esq., fortheir scholarly presentations and continuedsupport of our organization. Each year thisevent is made possible by the hard work

and dedication of our pastPresident Spiros A.Tsimbinos, Esq., and the staffof the Association.In September, 2011 the

Queens Volunteer LawyersProject was recognized in theNew York Law Journal for theoutstanding pro bono service itprovides to the residents ofQueens County.Congratulations to MarkWeliky, Esq. the Pro Bono

Coordinator, Corry McFarland, Esq. theForeclosure Prevention Coordinator, JasonGang, Esq. the Foreclosure PreventionAdministrator and all the pro-bono attor-neys that assist those persons who cannotafford to hire a private attorney. You havegiven those persons access to justice.Over the last couple of months, I have

tried to create a stronger and more signifi-cant relationship with St. John’s LawSchool. My goal was to increase law stu-dent membership. This initiative was wellreceived by St. John’s Law School. In fact,on October 25, 2011 the Queens CountyBar Association was invited to participatein St. John’s Annual Public ServiceSpecialty Roundtable Program. At thisprogram members of the QCBA, alongwith Arthur Terranova, Executive Director

of the Association, Jennifer Gilroy, Boardof Managers member and I were present.We set up a table and were able to speakdirectly with students regarding the bene-fits of becoming a member. Collectively,we succeeded in obtaining eight law stu-dents to join the Association. Hopefully,this success is just the beginning and moreSt. John’s Law students will become mem-bers. I will continue to pursue this initia-tive and will inform you of my progress.On December 15, 2011the QCBA will

hold its Annual Holiday Party at theDouglaston Manor. As in the past, this hol-iday event will be co-sponsored by theBrandeis Association, Hellenic LawyersAssociation, Latino Lawyers Associationof Queens County, Macon B. Allen BlackBar Association, Queens County Women’sBarAssociation and St. John’s Law SchoolAlumni Association of Queens County.Please join us as we celebrate the holi-

day season and reflect on the joy and won-derment of this special time.May the spirit of the season bring you

and your family good health, happiness andprosperity. Have a safe and happy holiday.

Very truly yours,

Richard M. GutierrezPresident

PR E S I D E N T ’S ME S S A G E

By Morgan Smith*

On June 2nd 2011, the Queens BarAssociation continued its tradition of giv-ing back to the community and investingin the enlightenment and education of the

youth by hosting its 80th annual trip toAlbany. The purpose of this trip is to givehigh school students the chance to learnhow the government is organized and seehow it operates on the state level.The students gathered in front of

Queens Borough Hall by 8:30 a.m. in theirdapper fashions, understandably groggyyet eager to get on the road: TheExecutive Director, Mr. Arthur Terranova,checked off and accounted for all the stu-dents who wished to participate in the trip,and then we were off making our way upto Albany. I handed out ID badges as thestudents read, napped and talked amongstthemselves. Halfway there, Justice DanielLewis introduced himself to the group, aswell as the other chaperones for the trip:Mr. Arthur Terranova; the wife of a formerpresident, Mrs. Linda Rosenthal; JamaicaHigh School Teacher and LawCoordinator Ellen Frank; Principal LawClerk to Justice Justice Lewis, Mr.Richard Johnson and me, his JudicialIntern. Justice Lewis went on to explainour schedule for the afternoon and to showan informative film entitled, “The Chateauon the Hill,” which was about the Stategovernment.As we exited the bus, we were struck by

the beauty of the state capitol buildings.We were given a brief view of the land-scape before we headed inside theLegislative building for lunch. As the stu-

dents enjoyed their complimentary meal,they were treated to a visit fromAssemblyman Michael Dendekker andSenator Joseph Addabbo, AssemblymanDendekker discussed the issue of unin-tended consequences with us, giving theexample of laws established by the state incompliance with federal law, whichresults in the mass accumulation ofunused re-election ballots that requirecostly storage.After lunch, we made our first stop at

the Court of Appeals, where we sat in onthree cases. The seven judges presented anintimidating picture seated at the panelbefore us as they listened to and ques-tioned the attorneys on each case. Thefirst of these cases dealt with an accidentnear Genesee, New York, involvingOntario tourists. Here, the issue waswhether Ontario Law and New York Lawshould apply and where the differenceaffected a financial cap in damagesreceived. The next two cases addressedthe issue of parole and resentencing underthe Rockefeller Drug Law Reform Act.Following the conclusion of these pro-ceedings, Judge Lewis addressed thecrowd of students, questioning them aboutwhat they had learned to insure that theyunderstood what they had seen. We werelater greeted by Mr. Gary Spencer, PressOfficer of the Court of Appeals, andHeather Davis, Esq., a motions clerk, whoprovided further insights into litigationsand how the Court of Appeals functions.We also visited the Executive Branch

and the Governor’s Blue room, wherepress conferences are held and talked tothe Appointments Secretary to theGovernor, Hon. Leslie Leach. Later,

Assistant General Counsel to theGovernor, Katherine Granger, Esq., gave abrief explanation of how a bill becomes alaw. The students appeared deeplyimpressed by the informative aspects ofthe trip. The high point of our visit waswhen we met with the Sergeant at Arms ofthe Assembly, Mr. Wayne Jackson. Mr.Jackson immediately won over the highschool students not only with his charmand charisma, but also with his provisionof jelly beans and by allowing the studentsto sit in the chairs of the Assemblypersonsas he explained the history and purpose ofthe room’s layout.The students were allowed to put their dem-

ocratic rights into practice by voting on whichmovie towatchon the trip home, as various lawmaterials were bring distributed for their perus-

al. We concluded the trip by eating in anupstate restaurant before heading back toQueens.The Queens Bar Association was once

again successful in assisting students inlearning about their state government. Eachstudent later expressed his/her gratitude forbeing afforded this opportunity. The experi-ence has given us all great insight into theCourt of Appeals and the Appellate process.We are uniform in our wish that the BarAssociation will continue to provide thisopportunity for students in the comingyears.

*Ms. Smith is a junior at Penn StateUniversity and a Judicial Intern to theHon. Daniel Lewis.

Queens Bar Hosts 80thAnnual Albany Trip

Richard MichaelGutierrez

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A lawyer without history or literatureis a mechanic,

a mere working mason; if he possessessome knowledge

of these, he may venture to call him-self an architect.

——- Sir Walter Scott

The Lincoln assassination has been anunending source of interest to allAmericans.Few of us do not know that the actor JohnWilkes Booth shot and killed the Presidentat Ford’s Theater inWashington, D.C. Mostpeople are well aware of Booth’s dramaticleap from the stage and his escape on horse-back toVirginia. His death in a burning barntwelve days later brought his life to an end.There was no need for a trial.However, far fewer Americans know that

Booth’s evil deed was part of a greater con-spiracy. This included attempts to kill Vice-PresidentAndrew Johnson and a vicious butunsuccessful attack upon Secretary of StateSeward. After a vigorous manhunt, eightconspirators (Samuel Arnold, George A.Atzerodt, David E. Herold, MichaelO’Laughlen. Dr. Samuel A. Mudd, LewisPowell, Edman (Edward) Spangler. andMary Surratt) were arrested. A trial was tobe held as quickly as possible at the insis-tence of Secretary of War Stanton.

The Trial

For attorneys, the trial of these conspira-tors should be of great interest. The pro-ceeding itself was before a specially appoint-ed military commission in Washington. Infact, the initial legal issue was whether thetrial would be a military or civilian one.Many of the same constitutional issues thatare presented in today’s terrorism trials werefaced by Andrew Johnson’s administrationonce the defendants were captured.On May 1, 1865 (just a few weeks after the

assassination and even before Lincoln wasburied) President Johnson ordered that a mili-tary commission of “. . . nine competent mili-tary officers. . .” would be held. The trial was to“. . . be conducted by the “ . . .JudgeAdvocateGeneral. . . .” Themembers of the commissionwere well known general officers. Perhaps themost famous was Lew Wallace, the author ofBenHur and a prominent CivilWar general.In making this decision, the President

received the significant input of Secretary

of War Stanton and Attorney GeneralJames Speed. In July of 1865 AttorneyGeneral Speed set forth a lengthy detailedwritten explanation of why a military tri-bunal was necessary. It still makes fasci-nating reading, especially when comparedwith the circumstances we face today.Attorney General Speed held

“. . .that if the persons who are chargedwith the assassination of the Presidentcommitted the deed as public enemies. ..they not only can, but ought to be triedbefore a military tribunal. If the personscharged have offended against the laws ofwar, it would be probably wrong of themilitary to hand them over to the CivilCourts, as it would be wrong in a CivilCourt to convict a man of murder who had,in time of war, killed another in battle”.The use of military tribunals for civil-

ians was later found to be unconstitutionalby the SupremeCourt in Ex Parte Mulligan.

Conduct of the Trial

The presiding judge at the trial wasJudge Advocate General of the Army,Joseph Holt. He had been the Secretary ofWar in the Buchanan administration andhad served in the Civil War rising to theposition of general. He was a well knownpolitician and had even been consideredfor the Vice Presidential nomination in1864 (Andrew Johnson was the nominee).Even though the cases against these

defendants were being prosecuted by themilitary, there was no conflict perceived.Each of the defendants had their own attor-

ney. Defense counsel had varying degrees ofexperience and expertise. The proof as to eachdefendant differed. For example, therewas lit-tle question as to the vicious attack by LewisPowell (no relation to the United States

Supreme Court justice of the 20th century)upon Secretary of State Seward. There wereseveral witnesses and ample proof available.In contrast, the case against Mary Surratt wasrather tenuous and her lawyers believed thatshe would be acquitted. Even though the trialtook two months to complete. On most daysthe defendants (except Dr. Mudd and MarySurratt) were brought into Court with hoodsover their heads. This was at the direction ofthe Secretary of War who was convinced of aconspiracy by the remains of the Confederategovernment. The appearance was shocking,

and one of the members of the tribunal evencompared the proceedings to the SpanishInquisition. The hoods were to be worn at alltimes, even when the defendants were in theircells. There were slits for the eyes and for eat-ing purposes. Drawings of what this lookedlike are available including an interesting onebyGeneralWallace. Later in the trial the hoodswere removed. They also had to wear wristirons and anklets connected to a 75 pound ball.

Conviction and Punishment

On June 30, 1865 the tribunal found alleight guilty. As noted four of them (MarySurratt, Lewis Powell, George Atzerodt andMichael O’Laughlen) were sentenced to behanged just a day later. Photos of these defen-dants hanging on the gallows are available.It was the decision as to Mary Surratt

that created the major controversy after thesentencing. In fact, on July 7, 1865,Andrew Wylie, a Judge of the (Supreme)Court of the District of Columbia issued awrit of habeas corpus. It directed GeneralWinfield Hancock, the military officer incharge of the proceeding (a war hero andlater a candidate for President) to appearand produce Mary E. Surratt.This ledPresident Johnson toutilizehisauthor-

ityandsuspendthewritofhabeascorpus. Despitethis General Hancock did appear before JudgeWylie. However, the judgeheld that hewaspow-erless to takeany further actionandhedeclined tomake any further order.Accordingly, thewritwasunsuccessful and May Surratt was hanged. Thecontroversy as to her guilt continues today.

As to the four conspirators that weresent to prison. However, Dr. Mudd waspardoned and released on March 1869 dueto good deeds in the yellow fever epidem-ic at the prison. By that time, the samedisease had killed Michael O’Laughlen.Edward Spangler and Samuel Arnold werereleased at the same time as Dr. Mudd.On November 13, 1866, the last defendant,

John Surratt (Mary’s son)was finally arrested inAlexandria, Egypt. Hewas the ninth (and final)conspirator. However, he was not subjected tothe military tribunal due to the decision of theUnited States Supreme Court in In ReMulligan. Instead he was tried by a civil jurywhich led to a mistrial. He was never retriedbecause by that time the conspiracy trial was nolongerof interest to thepublic. JohnSurratt livedout his life as any citizen of the United States.

Conclusions

Thedetails of the conspiracy trialwill be fasci-nating to most attorneys. There are numerousresources available in books and internet siteswhere the interested lawyercangetenough infor-mation to satisfyhisorher curiosity. Iwould rec-ommend Anthony S. Pitch’s fine book TheyHave killed Papa Dead! The Road to Ford’sTheatre, Abraham Lincoln’s Murder and theRage forVengeance.” For a good internet site try“The Trial of the Lincoln AssassinationConspirators” by Doug Linder (2009),law.umkc:edu/faculty/projects/lincolnconspiracy.

FOREST HILLS, NEW YORKSTEPHEN DAVID FINK, ESQ.

The Lincoln Assassination Conspiracy TrialHI S T O R Y CO R N E R

4 THE QUEENS BAR BULLETIN – NOVEMBER 2011

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She took off from LaGuardiaSo shiny and sleek,

Sully’s silver bird headingTo meet birds with a beak...

Thus, over the HudsonAn avian encounter-

The V-formation the victor,Big bird did now flounder...

Could he land on the river,Become a hero, a star?

While his silenced engines spewedGoose feathers and fois gras.

Land safely he did,It’s called miraculous,

All survived-Quite spectaculous!

Well, the moral of the storyIs that nature prevails,

We must coexist with thoseWith wings and tails.

Now Sully teaches young pilotsOr so I’ve hoid-

“Be careful up there,And AVOID THE BOID!”

Bob Sparrow

ONE STRIKE

Bob Sparrow

5THE QUEENS BAR BULLETIN – NOVEMBER 2011

Ross M. Spitalnick • Stanley J. Markowitz • Nick ForelliRoss@muss.com Stan@muss.com Nick@muss.com

(718) 263-3800

PH O T O CO R N E R

Annual Dinner & Installation Pt. 2 - May 5, 2011

Hon. Darrell Gavrin, Hon. Joseph Risi, MichaelReich and Hon. Edwin Kassoff.

Richard Gutierrez with his wife Yvette and sons,Christopher and Michael.

Dave Adler, Hon. Sid Strauss, Art Terranova andDavid Cohen.

Hon. A. Gail Prudenti, Hon. Fred Santucci andMike Dikman.

Dom Chiariello, Tom Grippa, Jerry Chiariello andHon. Rudy Greco.

Hon. Janice Taylor, Hon. Marguerite Grays andNicole McGregor-Mundy.

Hon. Cheryl Chambers, Seymour James, David and Helene Gugerty.

Hon. Stephanie Zaro, Robert Arena, Ilene Kass, Sue Borko and Hon. Fernando Camacho.

Photos by Walter Karling

6 THE QUEENS BAR BULLETIN – NOVEMBER 2011

Hon. Bernice Siegal, Giovanni Escobedo, Nicole Bruszewski, Hon. A. Gail Prudentiand Susan Lovett.

PH O T O CO R N E R

Annual Dinner & Installation Pt. 2 - May 5, 2011

Catherine Glover, Hon. Orlikoff Flug and DonnaFurey.

Hon. Sid Strauss, Hon. Fernando Camacho, Hon.Peter Vallone and Les Nizin.

Dorothy Kaldi, Hon. Sid Strauss, Sadatu Salami-Oyakhilome and Hon. Peter Kelly.

Alexandra Zervopoulos, Ed Rosenthal and MonaHaas.

Sue Borko, Hon. Margaret Parisi-McGowan,Richard Gutierrez and Hon. Carol Stokinger.

Aidee Reyes, Hector Santiago and Alex Rosado.

Richard Gutierrez's Staff-Zelideth Maguina, Karla Pineda and Survanni Tineo.

Richard and Yvette Gutierrez with members of the Latino Lawyers Assn of Queens County.

Steve Wimpheimer, Norman Burak, Liz Forgione and Hon. Phyllis Orlikoff.

Photos by Walter Karling

7THE QUEENS BAR BULLETIN – NOVEMBER 2011

THE QUEENS BAR BULLETIN – NOVEMBER 20118

BY GEORGE J. NASHAK JR.*

Question #1 - Was the award of 9%interest on a distributive award a providentexercise of discretion by the trial court?Your answer -

Question #2 - In valuing the shares of aclose corporation, the expert applied a25% discount for lack of marketability.Was this proper?Your answer -

Question #3 - Is a life insurance policyon wife’s parents, with defendant wife asbeneficiary, purchased during the marriageand premiums were paid, in part, withmarital funds, marital property?Your answer -

Question #4 - May the court suspendchild support payments, if the non-custodialparent established that his or her right of rea-sonable access to the child has been unjusti-fiably frustrated by the custodial parent?Your answer -

Question #5 - Husband prior to com-mencement began taking classes necessary toearn Bachelor of Science and Doctorate degreein physical therapy. Twenty-one months afterthewife’s commencement anaction fordivorce,the husband was awarded both degrees. Is thewife entitled to equitable distribution of a por-tion of the husband’s enhanced earnings?Your answer -

Question # 6 - Can child support pay-

ments be waived prospectively, before theobligation to make such payments hasaccrued?Your Answer -

Question #7 - Can the court set aside thechild support provisions of a stipulation ofsettlement which was incorporated but notmerged into the judgment of divorce, uponthe motion of one of the parties?Your answer -

Questions #8 - If a pending action wascommenced prior to the “no-fault” legisla-tion, may the defendant start a new actionon “no-fault” grounds?Your answer -

Question #9 - Are motions to enforcethe terms of a stipulation of settlementsubject to a statutes of limitation?Your answer -

Question #10 - Is an action to enforce adistributive award in matrimonial actiongoverned by the six-year statute of limita-tions?Your answer -

*Editor’s Note: Mr. Nashak is a PastPresident of our Association and Vice-Chair of our Family Law Committee. He isa member of the firm of Ramo NashakBrown & Garibaldi LLP

ANSWERS APPEAR ON PAGE 11.

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OVERWORKED PLAINTIFF’SATTORNEY: “Well, Judge, I happen tohave the Original original motion papersright here. The Clerk of this Court will notaccept them any more now that we have“electronic filing.” I can hand them up ifyou wish. I have inserted exhibit tabs, justas I always have these last 35 years.OVERWORKED DEFENDANT’S

ATTORNEY – “Judge, I have my Original

original motion papers with exhibit tabs righthere also. I think we both consent to handthem up to Your Honor for your considera-tion.JUDGE: “Absolutely not. How do I

know that your so-called “Original origi-nal” is in fact the “Original original” thatAmerican Clerical filed with the ElectronicFiling Clerk of this Court In Charge ofEmpty Orange Electronic Filing Folders?(EFCCCEOEFF) No, no, no. Both of you

are directed to immediately report to Room1313, where the EFCCCEOEFF will printout what you “originally” filed and place itin the Orange Electronic Filing Folder forconsideration by me and my LawSecretary.OVERWORKED PLAINTIFF’S

ATTORNEY – But Your Honor, weknow for a fact that the Office of CourtAdministration (OCA) has no budget forexhibit tabs. Even if the EFCCCEOEFFin Room 1313 diligently prints out ourmotion papers and the hundreds ofpages of exhibits, there will be noexhibit tabs.JUDGE – Don’t question me, counsel,

I’ll sanction you. Report to Room 1313immediately with the empty OrangeElectronic Filing Folder. All other busi-ness will be suspended until you return.The Attorneys for the Plaintiff and

Defendant then reported to Room 1313, asordered.OVERWORKED PLAINTIFF’S

ATTORNEY TO EFCCCEOEFF – TheJudge in Part Z requested that this emptyOrange Electronic Filing Folder be filledwith our motion papers. We told him wecould just hand him our Original originals,but he directed us to report to you forimmediate printing of our Electronic Filingof the Original originals we are currentlyholding in our hands. And by the way, doyou have any exhibit tabs and an oversizedstapler?EFCCCEOEFF – OCA does not have a

budget for exhibit tabs and oversized sta-plers.OVERWORKED DEFENDANT’S

ATTORNEY – Only Jerry, George, Kramerand Elaine would understand this scene. It isabout nothing, but it is about everything. SeeCostanza v. Seinfeld, 279 A.D. 2d 255, 719N.Y.S. 2d 29 (1st Dept. 2001). (This is a realcitation. Readers can judge for themselveshow to characterize Electronic Filing,Empty Orange Folders and the EFCCCEO-EFF.)It is respectfully submitted that

“Electronic Filing” is NOT ERGONOMI-CALLY CORRECT. It does not accountfor the eyes of the Judges and LawSecretaries, and the absurd amount ofscrolling that would be necessary if theyhad to read motions and extensive exhibitswithout being able to flip back and fortheasily using exhibit tabs. Electronic cuesfor flipping back and forth are insuffi-cient. These do not allow the reader tomake his or her own choices as to whichof hundreds of pages of exhibits are moreimportant than others.The human eye is not a technological

device. OCA abuses our eyes at its peril,the peril of a justice system destroyed.Is there a reason the U.S. Supreme Court,

U.S. Court of Appeals, New York StateCourt of Appeals and our four AppellateDivisions have declined to adopt “electronicfiling”?Perhaps OCA could allow us to file the

time-tested way, with paper, and then,after the case is settled or tried, convertthe files to electronic storage. This wouldsave our eyes from the pain of endlessscrolling, and still save the State a fortunein storage costs. Why, exactly, did thislogical step not occur to them earlier?

THE QUEENS BAR BULLETIN – NOVEMBER 2011 9

Continued From Page 2 _________________

Introduction to “Electronic Filing”

BY RANDOLPH C. OPPENHEIMER

OPPENHEIMER -Bennett Oppenheimerof Lighthouse Point, Florida, an attorneywhopracticed law inNewYorkCity andFortLauderdale for more than 60 years, diedWednesday, August 24, 2011. He was 90years old. Aprivate funeral servicewas held.Born in Windsor, Ontario, he earned

his bachelors, law and masters in lawdegrees from New York University, andbegan his law practice in NewYork Cityin 1951. In 1977 he established an officein Fort Lauderdale, where he maintainedan active Family Law practice for thenext 34 years. He was licensed to prac-tice law in both New York and Florida,and was a member of the Queens CountyBar Association for more than 60 years.

A Sergeant in the Army, he served inEurope in World War II, earning theGood Conduct Medal, a European-African-Middle Eastern Theater Ribbonwith one silver and one bronze battlestar, one service stripe and two overseasservice bars.He was married for 49 years to the late

Sondra Haber Oppenheimer. He is sur-vived by his daughter Hayley (Scott)Houston, his sons Randolph (Cynthia)Oppenheimer and Laurence (Andrea)Oppenheimer; his grandchildren Alexisand Hope Houston, and Daniel, Jordan,Jacob, Adam, Benjamin, Madeline,Elizabeth, Andrew and PhillipOppenheimer; and his great-grandchil-dren Ethan, Phoenix and PhoebeOppenheimer.

Death Notice:Bennett Oppenheimer

10 THE QUEENS BAR BULLETIN – NOVEMBER 2011

BY HOWARD L. WIEDER

My column this month focuses on twoyoung Italian film makers who live inManhattan and who are earning a lot ofattention as director-writers: MARCOCHIAVARELLI and ANTONIOPADOVAN. Even though they both trainedat New York Film Academy in Manhattan,they are separate film makers and have notcollaborated on any project. Both have a lotin common, aside from being born in Italy,both MARCO CHIAVARELLI andANTONIO PADOVAN are fluent inEnglish, they are creative individuals, andthey have spurned other careers in order tofocus on their true passion and calling in life- - movie-making. Both of them haverecently won prestigious awards for theirfilms. Both of them shun the dependency torely on special effects to grab an audience’sattention in favor of doing films that con-centrate and depict individuals encounteringlife’s situations.MARCO CHIAVARELLI, who has also

done films of crime drama and documen-taries, specializes in writing and directingfilms that depict the absurdist comedy andpoignant irony of life’s situations. ANTO-NIO PADOVAN also likes to take individ-uals encountering slices of ordinary life andfavors the romantic comedy genre.

MARCO CHIAVARELLIBorn in Rome, Italy, to affluent and edu-

cated parents, MARCO CHIAVARELLIresisted the invitation and easy temptationto go into the family’s hotel business.Instead, after working on films in Europe,he came to NewYork City, without knowinganyone, and enrolled in NEW YORKFILM ACADEMY. Living modestly in abasement apartment, MARCO CHI-AVARELLI took the classes seriously andthen took other classes, including acting, inorder to familiarize himself with every areathat a director should know.MARCO CHIAVARELLI is determined

to write and direct scripts that focus on theabsurdist comedy inherent in life. MARCOCHIAVARELLI’s most recent short filmBUBBLEGUM is a case in point. BUB-BLEGUM, starring young and dynamicactorANDREWCHAMBERLAIN is abouta boy who craves a piece of bubblegum,despite the sharp resistance by his well-mean-ing mother, who does not want to expose herson to sugary sweets. BUBBLEGUM is abittersweet comedy with a surprise ending.BUBBLEGUM was a hit at the NEWHOPE FILM FESTIVAL, known interna-tionally as a cutting edge film festival, in NewHope, Pennsylvania, where BUBBLEGUMwon the coveted Audience Prize.MARCO CHIAVARELLI recently did a

30 minute documentary, THE BIRDMAN,interviewing the individual known as “thebird man” of Washington Square Park inManhattan. The subject of the documentaryhas received a lot of media attractionbecause of the way pigeons flock to him.Most NewYorkers, by reflex, would steer a

mile away from this man. Yet,the genius of MARCOCHIAVARELLI’s interviewshows a man who is not a“looney,” but a thoughtful indi-vidual who has a fondness forbirds and a low tolerance forreligious fanaticism. Labels of“crazy” may thus be in the eyesof the beholder, and the point ofthe documentary, at least to mymind, is that one ought not to bemaking snap judgments aboutpersons without first talking with them.

Again in THE BIRD MAN, MARCOCHIAVARELLI reveals a profound andhumanist understanding that life has bitter-sweet elements - - a characteristic featurethat runs through all of MARCOCHIAVARELLI’s films, regardless ofgenre.MARCO CHIAVARELLI has been

working with Korean director HYOJINANon their film THE LUCKY DAY, a crimedrama regarding corrupt businessmen,crooked cops, and a hapless immigrantworking long hours to support his family asa taxi driver in New York City. A scene forthat film was recently shot on a weekend inthe Law Offices of KIM, PATTERSON &SCIARRINO, on Bell Boulevard, inBayside, Queens County, NewYork.MARCO CHIAVARELLI is a versatile

writer-director. His creative versatility isastonishing, and his knowledge about thehistory of European and American film-making is astonishing. MARCO CHI-AVARELLI is a humble individual, whoseknowledge of the great film directors isextraordinary. He could have easily suc-cumbed to a life of ease, but instead has pur-sued his passion, even at self-sacrifice. Ihave great admiration for both MARCOCHIAVARELLI as a person and for his tal-ent and artistry.Talking with MARCO CHIAVARELLI

is an engaging process. He is funny, intelli-gent, outgoing, and caring. He has greatlove for his family, especially for his par-ents. MARCO CHIAVARELLI’s next stepis to form a production company.

ANTONIO PADOVANArriving in New York in 2007, the origi-

nal goal of ANTONIO PADOVAN was towork in architecture. He soon landed a jobat a New York architectural firm, where heworked on several high profile projects. Notcontent with architecture, ANTONIOPADOVAN decided to learn film-making,enrolling at the New York Film Academy,earning a scholarship.ANTONIO PADOVAN’s first film

SOCKS AND CAKES, went on to win aGolden Ace Award at the 2010 Las VegasFilm Festival. ANTONIO PADOVAN’snext film PERRY ST. starring CatherineMary Stewart, has been accepted by fifteenfilm festivals across the United States, earn-ing four awards, and one honorable men-tion. PERRY ST. screened in NewYork City

at the International FilmFestival in August. Last year,the film first screened as a BestNew York City Film winner atthe Village East Cinema. A fewdays later, the film screened inthe Big Apple Film Festival atthe Tribeca Cinemas.His latest film MIA, a 20

minute short romantic comedy,is opening now at major filmfestivals. The film was shot inNewYork’s West Village.

The following is a portion of my inter-view with ANTONIO PADOVAN:

Question:What age were you when youarrived to the USA?Antonio: 21

Question: What are your plans in film - -I'm sure to persist as a writer director?Antonio: I am about to finish a film

called TILLMAN, shot between Queensand Long Island. I have a couple of possiblelittle projects in China for October thatcould lead to a bigger project. And I just fin-ished the first draft of a New York basedstory for a feature that I intend to film nextyear.

Question: What genre of films wouldyou like to specialize in?Antonio: Romantic Comedies. Or any

kind of film that deals with situations that Ican relate to.

Question: What film-makers, if any,inspire you the most and why?Antonio: Billy Wilder, [Federico] Fellini,

Woody Allen, Alexander Payne, [Roberto]Rossellini, Ferzan Ozpetek. More that aspecific director I am inspired by a type offilms.

Question: What three films do you likeand why?Antonio: THE TERMINAL - I think

for the acting mostly but also for somethingelse that I've never been able to describe,probably the mood that creates; HANNA &HER SISTERS - for the storytelling struc-ture and the acting; [and] HOWARD THEDUCK - that's a guilty pleasure from whenI was young.

Question: Do you see a differencebetween European filmmakers andAmerican filmmakers, and what do you likeabout both?Antonio:Yes, I see differences about film in

general and therefore directors aswell. In theUSthere is a more specific and well known "struc-ture", that leads most of the time to an excellentresult in terms of quality. Unfortunately, some-times the story is not worthy.

In Europe, probably a director is morelike an "author" sometimes, meaning - - hehas more control over the final result. Still,I don't think that anyone can make a film bythemselves, so I always feel funny whensomeone writes "a film by . . ." In Europe,we are closer to that approach.Most people have the wrong idea that if

something is generated from money ormakes money is not art anymore. But howcan you make the point that a film likeTRANFORMERS (which I didn't like) isless art than any indie film that they willplay at the Angelika? People that work onbig Hollywood productions are usuallymore experienced and talented.

Question: The New York Times recentlyran an article on the glut of film students onthe market. What does Antonio see aboutthe present market of filmmakers?Antonio: Film-making is the most com-

petitive business in the world, for everybodyinvolved, from director to actors, to AC orproducers. We are all in the same boat, ortrying to get in the same boat.

ON WHEELS PRODUCTION’S OF ANENEMY OF THE PEOPLE

This summer, I attended the ONWHEELS PRODUCTION of HENRIKIBSEN’s AN ENEMY OF THE PEO-PLE. The company, ON WHEELS PRO-DUCTION, was founded by physicallychallenged actor TONY PALMIERI, whoplayed the lead role of Dr. ThomasStockman [sometimes spelled as“Stockmann”].For those readers not familiar with

IBSEN, a great nineteenth centuryNorwegian playwright, his plays wereremarkably ahead of their time. In ADOLL’S HOUSE, for example, IBSEN wasa forerunner of feminism and the women’smovement. In AN ENEMY OF THE PEO-PLE, published in 1882, IBSEN exploredwhistle-blowing and their shaking conse-quences on the lives of individuals whosemorals lead them to expose corruption overconcerns of their own physical comfort.In AN ENEMY OF THE PEOPLE, Dr.

Thomas Stockman has been appointed asthe doctor to the baths of a town by hisbrother, Peter, the town’s Mayor. The town’smineral bath is its greatest source ofincome, luring customers and tourists fromfar away. Dr. Thomas Stockman discoversthat the baths are infested with someunhealthy germ or parasite and must be shutdown for further tests and remedial action.Of course, doing so would pose economicdisaster for the townspeople. Does oneremain silent and enjoy a lucrative positionor should the truth be spoken at great per-sonal sacrifice?IBSEN explored these whistle-blower

themes 100 years before films like SILK-WOOD (1983) with MERYL STREEPand CHER or THE INSIDER (1999) withRUSSELL CROWE and AL PACINO.Famous actors have played the role of Dr.

Thomas Stockman, including KONSTAN-TIN STANISLAVSKI, considered “theFather of Method Acting,” Oscar-winnerFREDRIC MARCH, and Tony Awardwinner SIR IAN MURRAY McKELLEN.It takes a great actor to do justice to thisrole, especially with the long stretches ofmonologue in the second half of the play.The long passages by IBSEN can sound ter-ribly didactic unless well-acted.Unfortunately, TONY PALMIERI was notright for the role of Dr. Thomas Stockman,and, as a consequence, the text came off asdidactic, and numbingly so.Here is an example of IBSEN’s text from

THE CULTURE CORNER

Howard L. Wieder

Director-writer Marco Chiavarelli with thestar of his hit short film Bubble Gum, at theNew Hope Film Festival, accepting award asaudience's favorite film.

Director, WriterANTONIO PADOVAN

__________________Continued On Page 11

EDITOR’S APOLOGY:“The Culture Corner” column that

appeared in the October issue containedseveral errors by the publisher, includ-ing an incorrect identification of direc-tor-writer ANTONIO PADOVAN, andalso failed to separate the discussion ofan Ibsen play from the prior segmentregarding MR. PADOVAN. The Editorapologizes to HOWARD WIEDER, theauthor of the column, MR. PADOVAN,and director-writer MARCO CHI-AVARELLI. To correct the errors, weare reprinting the correct version of Mr.Wieder’s October 2011 “The CultureCorner” column in this issue.

ANSWERS TO MARITAL QUIZ ONPAGE 8.Question #1 - Was the award of 9%

interest on a distributive award a providentexercise of discretion by the trial court?Answer: Yes, Cooper v. Cooper 2011

NY Slip Op 3989 (2nd Dept.).

Question #2 - In valuing the shares of aclose corporation, the expert applied a25% discount for lack of marketability.Was this proper?Answer: Yes, Cooper v. Cooper 2011

NY Slip Op 3989 (2nd Dept.).

Question #3 - Is a life insurance policyon wife’s parents, with defendant wife asbeneficiary, purchased during the marriageand premiums were paid, in part, withmarital funds, marital property?

Answer: Yes, Weintraub v, Weintraub912 N.Y.S.2d 674 (2nd Dept. 2010).

Question #4 - May the court suspendchild support payments, if the non-custodi-al parent established that his or her right ofreasonable access to the child has beenunjustifiably frustrated by the custodialparent?Answer: Yes, Matter of Thompson v.

Thompson 2010 NY Slip Op 08120 (2ndDept.).

Question #5 - Husband prior to com-mencement began taking classes necessaryto earn Bachelor of Science and Doctoratedegree in physical therapy. Twenty-onemonths after the wife’s commencement anaction for divorce the husband was award-ed both degrees. Is the wife entitled to

equitable distribution of a portion of thehusband’s enhanced earnings?Answer: Yes, Kuznetsov v. Kuznetsova

913 N.Y.S.2d 325 (2nd Dept. 2010).

Question # 6 -Can child support paymentsbe waived prospectively, before the obliga-tion to make such payments has accrued?Answer: Yes, Stevens v. Stevens 2011

NY Slip Op 1830 (2nd Dept.).

Question #7 - Can the court set aside thechild support provisions of a stipulation ofsettlement which was incorporated but notmerged into the judgment of divorce, uponthe motion of one of the parties?Answer: No, a plenary action to set

aside a stipulation of settlement isrequired, Brody v. Brody 2011 NY Slip Op1782 (2nd Dept.)

Questions #8 - If a pending action wascommenced prior to the “no-fault” legisla-tion, may the defendant start a new actionon “no-fault” grounds?Answer:Yes, Heinz v. Heinz 203438/10,

NYLJ 1202483036423 at *1 (Sup., NADecided February 16, 2011)

Question #9 - Are motions to enforcethe terms of a stipulation of settlementsubject to a statutes of limitation?Answer: No, Bayen v. Bayen 2011 NY

Slip Op 01421 (2nd Dept.)

Question #10 - Is an action to enforce adistributive award inmatrimonial action gov-erned by the six-year statute of limitations?Answer: Yes, Bayen v. Bayen 2011 NY

Slip Op 01421 (2nd Dept.)

Marital Quiz

11THE QUEENS BAR BULLETIN – NOVEMBER 2011

orders issued by the court. In this regard, inthe rush to complete the PreliminaryConference Order, we tend to lose sight ofthe importance of this document, as well asthe obligations it imposes upon us.With respect to the above, two impor-

tant changes are going into effect. The firstwill be publication of updatedAdministrative Rules for the PreliminaryConference Part. These rules will also beposted outside of the PreliminaryConference Part. Of significance, the rulescall for “preclusion, the striking of apleading and/or the imposition of costsassociated with any motion to enforce”based upon the failure to “substantiallyperform in accordance with the terms ofthis stipulated Order.” Likewise, “anymotion brought to enforce the terms of thisOrder which is determined to be prema-ture or which, following the inquiry by theCourt, has not been preceded by specificand diligent attempts to resolve the issuesraised by said motion” shall be consideredan abuse of motion practice and subject topossible costs and/or sanctions.” Finally,“[a]ll parties are expected to fully complywith the discovery mandates set forth inthis Order. The failure of one’s adversaryto comply does not constitute the basis forfailure to fully comply with one’s own dis-covery mandates.”One of the arguments raised during our

conversations is that, while attorneys maybe dilatory, enforcement of the terms of thePreliminary Conference Order rests with

the IAS judge to whom the case is assigned.What the above provisions mean is that ifyou expect the court to enforce the terms ofthe Preliminary Conference Order, youhave a concomitant duty to make sure thatyou come into court with clean hands andto make sure that you are in compliancewith the terms of the Order as well.The second major change in the order is

the closing of, what we colloquially call“the Ritholtz loophole.” That is, attorneyswho hope to avoid appearing beforeJustice Martin Ritholtz for a ComplianceConference, simply file a Note of Issueprior to the conference date thereby obvi-ating the need to hold the conference. Thispremature filing of the Note of Issue rou-tinely leads to cases appearing beforeReferee Florio and/or on the TSP calendarwith discovery still outstanding. AvoidingJustice Ritholtz and the ComplianceConference part will not be as easy withthe new Preliminary Conference Order.Specifically, the Preliminary ConferenceOrder provides that the “[f]iling of a Noteof Issue prior to the ComplianceConference must include a written stipu-lation fully executed by all partiesacknowledging that all discovery has beencompleted. Failure to comply with thisprovision will result in vacatur of the pre-maturely filed Note of Issue.”As is evident from the above that the

Court intends to take enforcement of thePreliminary Conference Order more seri-ously. It is suggested that the practitionersdo likewise.

Continued From Page 2 ________________

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AN ENEMY OF THE PEOPLE:“Lack of oxygen dulls the conscience. And

there must be a woeful dearth of oxygen in thehouses of this town, it seems, if the entire solidmajority can numb their consciences enoughto want to build this town’s prosperity on aquagmire of duplicity and lies.”SIR IANMCKELLAN would make that

text soar. KONSTANTIN STANISLAVS-KI, who cherished the role of Dr. ThomasStockman as his favorite, lived at a time ofpolitical unrest, and AN ENEMY OF THEPEOPLE was very popular with theRussian pre-revolution populace. Peopleyearned for a hero who could tell the truthstrongly and bravely. AN ENEMY OFTHE PEOPLE became the favorite play ofthe revolutionists, despite the fact that Dr.Thomas Stockman himself despised themajority and believed in individuals. Theappeal of the play was, and still remains,that Dr. Thomas Stockman protests injusticeand duplicity and that he told the truth.In the last act, Dr. Thomas Stockman, rear-

ranging his room which has been stoned bythe crowd, finds his black coat in the generalchaos. Seeing a tear in the cloth, he says to hiswife: “One should never put on a new coatwhen going to fight for freedom and truth.”That line by HENRIK IBSEN - - “One

should never put on a new coat when goingto fight for freedom and truth” - - regardingthe mud that will be thrown at any honestperson fighting for a greater good, in a ruth-less effort to sully and ruin his reputation - -are words to be relished by actor and audi-ence. The opportunity, however, was lostand the words were uttered as mundane andordinary in TONY PALMIERI’s rote,unexciting, and unmoving performance. Asmy mind wandered during Palmieri’s recita-

tion of lines, I started imagining funny castchanges, such as having JACKIEMASON,gifted, Jewish-accented comedian, play thelead role of Dr. Thomas Stockman. I wasyearning for IBSEN’s lines to have flesh,embodiment, meaning, vitality, and power.TONY PALMIERI does deserve recog-

nition for showing that actors with physicaldisabilities do have significance in the the-ater, and his production company providesopportunities for a cast composed of thosewithout disabilities performing alongsidethose who are physically challenged. MR.PALMIERI, however, needs to learn that arole as a producer is significant and rewardenough. He does not need to perform thelead role, especially when he is not up to itsseveral demands and challenges.Several performances of this production

of IBSEN’s AN ENEMY OF THE PEO-PLE deserve mention: KATIE LABAHN,a wheelchair-bound actress, made a formi-dable and convincing Katherine Stockman,wife of Dr. Peter Stockman. FRANK HEN-DRICKS was a solid, ruthless character asMayor Peter Stockman. DAVID CON-KLIN was wonderful and genuine asCaptain Horster, the strong, dependable,true, and only friend of the StockmanFamily when they became pariahs. DAVIDCONKLIN had an exciting stage presenceand showed real depth in his role.

* * * * * * * * * * * * * * * *

HOWARD L. WIEDER is the writer ofboth "THE CULTURE CORNER" and the"BOOKSAT THE BAR" columns, appear-ing regularly in THE QUEENS BAR BUL-LETIN, and is JUSTICE CHARLES J.MARKEY’s PRINCIPAL LAW CLERKin Supreme Court, Queens County, LongIsland City, NewYork.

Culture CornerContinued From Page 11 ________________

Supreme CourtCommittee Report

THE QUEENS BAR BULLETIN – NOVEMBER 201112

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