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Newsletter June 2013

On the Calendar Annual Member Meeting Set for June 20  June 20: Glen Sanders Mansion, Scotia Doors open at 11:30 a.m.; luncheon meeting at noon SCBA members—$25; nonmembers—$30 Featuring:

Inside this issue:

Salute to Our Mock Trial Team: Join in congratulating the students and coaches for the Bishop Gibbons-Notre Dame High School mock trial team Election of officers and board members for the new year: Four officer positions, three directors and the delegate and alternate delegate to The Federated Bar will be filled at the annual meeting.

President’s Message: Elephant Bones

2

Committee Tips: Introducing Evidence at Trial

4

Consideration of Post-Divorce Maintenance Factors

6

Celebrating Colleagues

11

Member Meeting Proceedings

12

SCBA Presents Law Day, Portrait Events

13

The nominating committee, composed of Lawrence M. Gordon and Michelle H. Wildgrube, Co-Chairs) and John R. Seebold, Gregory E. Schaaf and Cory Ross Dalmata, has presented a slate of: President: Vice President: Treasurer: Secretary: Director 1: Director 2: Director 3: Delegate-Federated Bar: Alternate-Federated Bar:

Jenifer M. Wharton Hon. Mark L. Powers Frank Tedeschi Barbara L. Guzman Andrew J. Healey Michael Basile Jean T. Carney Richard D. Wickerham Diane D. Enzinna

CLE—Save the Date Fast Track Trial Skills CLE and Lunch  August 29  Saratoga Race Course  Focusing on evidence issues in federal and state courts  Presented by our Criminal and Civil Litigation Committee  See pages 4-5 and watch for more information and registration materials

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President’s Message:

Elephant Bones SCHENECTADY COUNTY BAR ASSOCIATION BOARD OF DIRECTORS Officers President Michael E. Basile Vice President Jenifer M. Wharton Treasurer Frank Tedeschi Secretary Barbara L. Guzman

At some future time, someone with nothing better to do might look back on some of my president’s messages and wonder what the words were (or were not) all about. To properly reflect the formality of the change in administration and for the sake of posterity, I thought it appropriate to make this last message read like a farewell address. So here goes. At this time, I would like to caution our Association and all its members to beware of foreign entanglements. Wait one minute; I think that warning has been issued before by our nation's first president, someone named George Washington, upon his leaving office. Let me try again. I believe our Association must guard against the influence of the military-industrial complex. Wait again. Now that I think of it, didn't someone use that line before? I believe President Eisenhower upon his leaving office may have issued this warning. I better stop here before I expose the Association and, of more direct impact upon the home front, myself to a possible copyright claim. Don’t worry; I am leaving regardless whether I complete this farewell thing. Our Association Lives

Board Members Hon. Vito C. Caruso Hon. G. Douglas Griset Joseph L.. Litz Frank M. Putorti Jr. Deborah A. Slezak Christina M. Tremante Hon. Matthew Sypniewski Veronica Reed Frederick W. Killeen

Executive Director Beth Krueger



Let me simply state that the Schenectady County Bar Association lives! Since I do not appear to have been stricken down immediately upon uttering this phrase (unlike, reportedly, John Adams, when he issued a similar declaration regarding Thomas Jefferson), I will continue. Our Association lives through our active and involved board. It also lives through the committees that are engaged and involved in various aspects of the law, including the presentation of CLE seminars that have achieved statewide recognition (at least in upstate New York), as well as the presentation of seminars by newer committees. It also lives through new committees that have been formed to take us forward in new areas of technology and planning. It also lives through the rebirth of Law Day presentations and events held under the auspices of our Association. It also lives through the volunteer services provided by many of our lawyers through a number of our programs, including those administered through our Pro Bono Matrimonial committee and Modest Means panel. Mostly, it lives through all of you. Your membership is the reason our organization has existed and will continue to exist and thrive into the future.

P.O. Box 1728 Schenectady NY 12301

Common Theme

info@ schenectadycountybar.org

The common theme through all of this is you, not me. Presidents will come and go. Our ongoing hope is that our membership ranks continue to be replenished, as they have been over the past years.

518-393-4115

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June 2013

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By now, many of you have probably already begun celebrating the fact that the e-mail deluge is about to end. In response, I am tempted to state that you will not have Mike Basile to kick around anymore. But in fact, you will! Actually, you are likely to kick all the harder once I leave office, unless I am forced to leave the area due to the shame of my presidential messages being forever preserved on our new website that is being developed (I hadn’t anticipated this development when I began writing the messages. Since they will not self-destruct, I am stuck with them. Unfortunately, you are too). So, if you see an aging, shrunken, confused and dazed looking individual schlepping to the Bar Association meetings in the future (no comments please about how this may describe my appearance throughout my presidency), please remember to not step on me. Stepping over me will work just fine. Part of my appearance will be due to the fact that I will no longer have presidential duties to excuse me from the performance of manual labor at home, unless I am appointed ambassador to Burundi or some such place (I am not certain that my compatriot at home will believe that our Association has ambassadorships, but since I am desperate, this sounds pretty good at the moment). Being relegated from the presidency to day laborer at home is almost too much to bear without some hope, however illusory, of a reprieve. Don't presidents get to retire to a camp or ranch to write memoirs and open presidential libraries around here? So I leave you in the excellent hands of our incoming president, Jenifer Wharton. As those of us that know Jen already know, and as those of you who do not know her will soon know, she is an excellent attorney with many good ideas. She will lead our association to new and better places, and I will be happy to follow. While I will support her in any way possible, I believe I can support her best by doing what Moon Reagan said he would do when his brother was elected president—get lost! Stack Up Against Any You have all made my job easy and even, for the most part, fun. I will stack up our Association’s attorneys against any out there. A number of our attorneys have achieved statewide recognition. The rest of our members are also as capable and qualified as any attorneys in their practice areas. When I was in college looking at law schools to which I might apply, I remember reading a comment in a book that evaluated and ranked law schools. The comment involved Albany Law School and stated, in effect, that graduates of the school were, in general, as capable and qualified as graduates of any law school, including those with much greater name recognition. The further observation was made that those who underestimated graduates of Albany Law School and took them lightly usually paid the price for this miscalculation. I believe the same observations could be made of our members. Cannot Think of a More Worthy Role

Portrait Fund Thank You

It has been my pleasure and honor to serve the Schenectady County Bar Association and all of you, its members. It has been the highlight of my professional life (This may not be saying a lot about the organization, given the fact that it is me saying it. But it Thank you to contributors to the SCBA Judicial means a lot.). Just think, there will be no more parentheticals for Portrait Fund: you to wade through. I cannot think of a more worthy role than to serve for and with one's immediate peers. Thank you for havAnonymous ing allowed me to hold the position of president of our great orMichael Basile ganization. I will continue to be more proud to belong to this Cioffi Slezak Wildgrube PC organization than any other professional or social organization in Alan Gebell Frederick Killeen which I do or could hold membership. Hon. David Krogmann The voices in my head have stilled. I am putting down my pen. So, James Lebrou I leave you all with these thoughts and words from my heart— Hon. Thomas D. Nolan Jr. thank you! Frank Putorti Jr. Hon. Vincent J. Reilly Jr. Hazel Rodriguez John Warner

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Around the Horn: Interesting Tidbits and News of Note from Our Committees Introducing Evidence at Trial From Paul E. DeLorenzo, Chair Criminal and Civil Litigation Committee Introducing evidence at trial can be overwhelming and difficult if you are not familiar with the rules and cases concerning same. The following is a starting guideline on certain areas of demonstrative evidence. However, for more detail it is best to check the rules and attend any one of our seminars concerning this area. Coincidentally, the SCBA Litigation Committee is holding its 2nd annual Fast Track CLE this August 29th at Saratoga Raceway. See this article, page 5, for more information. Demonstrative Evidence Demonstrative evidence consists of physical objects brought into the courtroom. It includes photographs, charts, videotapes, models, diagrams and x-rays. As a general rule, an item of demonstrative evidence is admissible if it is relevant and material to an issue before the court and it is properly identified. Reproductions or mock-ups must be substantially accurate reproductions of what they purport to represent. Physical objects or things must be in substantially the same condition as they were at the time the relevant event occurred. A. Photographs A photograph is authenticated by testimony showing the photograph fairly and accurately depicts the condition as it existed at the time of the accident. Niles v. State of New York, 201 A.D.2d 774, 607 N.Y.S.2d 480 (3d Dept. 1994). Any witness may authenticate the photograph. The photographer is not a necessary witness. Archer v. New York Haven and Hartford Railroad Co., 106 N.Y. 589, 603 (1887). i.

Inflammatory Photographs Photographs will be excluded if the sole purpose of their admission is to inflame the passions of the jury. People v. Wood, 79 N.Y.2d 958. Even a gruesome photograph, however, will be admissible, if it can be shown that its probative value outweighs its prejudicial effect. See, e.g., Caprara v. Chrysler Corp., 71 A.D.2d 515, 423 N.Y.S.2d 694 (3d Dept. 1979) aff'd. 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981) (color photographs of plaintiff with Crutchfield Tongs on a Stryker frame attached

to his scalp admissible because photograph assisted the jury in understanding the medical evidence); New v. Court Right, 32 A.D.2d 576, 299 N.Y.S.2d 43 (3d Dept. 1969) (photographs depicting facial lacerations and sutures admissible). ii. Photographs Which Prove Constructive Notice Photographs are admissible to prove that the defendant had constructive notice of a defective condition. Taylor v. New York City Transit Authority, 48 N.Y.2d 903, 424 N.Y.S.2d 888 (1979) (jury permitted to infer from the photographic appearance of the defect that the condition came into being over such a length of time as to show constructive notice); Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 (1978) (photographs may furnish a basis for constructive notice); Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423 (2d Dept. 1969) (photograph inadmissible to show conditions at time of accident if conditions have substantially changed). B. Film and Videotapes Film and videotape demonstrative evidence is admissible when relevant and properly authenticated. It will be excluded if it is sensational or inaccurate. The court in People v. Higgins, 89 Misc.2d 913, 392 N.Y.S.2d 800 (Sup. Ct. Bronx Cty. 1977) lays out a proper foundation guideline for this type of evidence (foundation for admission of videotape should include: (1) identifying the subject matter, (2) qualifying the operator who filmed the video, (3) establishing the video is a true and accurate representation, (4) establishing the particulars regarding the film and video equipment used, (5) establishing the uninterrupted possession of the video, and (6) explaining any distortions, changes, editing or technical imperfections in the video); (Continued on Page 5)

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Caprara v. Chrysler Corp., 71 A.D.2d 515, 423 N.Y.S.2d 694 (3d Dept. 1979) aff'd. 52 N.Y.2d 114, 417 N.E.2d 515, 436Will N.Y.S.2d 215 (1981) (informative day in the life film was probative and non-inflammatory and therefore Execution Checklist admissible); Mechanick v. Conradi, 139 A.D.2d 857, 527 N.Y.S.2d 586 (3d Dept. 1988) (videotape in motor vehicle case filmed through windshield of a moving Reprinted with permission: Hon.the Guyfront P. Tomlinson, Surrogate Judge, vehicle was misleading and inadmissible). Montgomery County

C. Audiotapes

Date: ______________ Day of Week: Audiotapes containing admissions will__________ be admissibleClient if a foundation is laid proving the tapes are authentic, audiName: ______________________ ble, unerased and intelligible. An audiotape is authenticated by testimony from a witness to or participant in the

conversation who states that the conversation is a complete and accurate reproduction and has not been altered. The foundation can even be laid by a witness to the recording, such as the machine operator. Alternatively, the tape will be admitted upon testimony by a participant in the conversation, together with proof by an  Sufficient prior contact to prepare final draft of Last Will and expert witness that thetaken expert Testament has already placeanalyzed the tape for splices or alteration and that there was, in the expert's opinion, no indication of same. Merely identifying the voices, without proving the tape is untampered with, is  insufficient. A. PartiesUnited present: States v. McKeever, 169 F.Supp. 426 (SDNY 1958). Confidential pre-execution meeting with client.

D. Surveillance Tapes (hereinafter referred to as C/T)  1. Client-Testator

 3101(i) 2. Law Office Professional(s) CPLR provides for full disclosure of films, photographs, videotapes and audiotapes, including transcripts  3. Others: YES / NOSurveillance (note: pre-execution meeting on any films or videotapes, are admissible when properly thereof and out-takes. videotapes, as with day of will execution is intended to be confidential, if authenticated; Thomas v. Fletcher & Sons Auto Repair, Inc., 201 A.D.2d 554, 607 N.Y.S.2d 729 (2d Dept. 1994) unable to so meet indicate circumstances) (surveillance videotape admissible to controvert evidence with respect to severity and permanence of plaintiff's DeCandia v. Hudson Waterways, Inc.,and 194TesA.D.2d 314, 598 N.Y.S.2d 239 (1st Dept. 1993) (surveillance  injuries); B. Confidential review of proposed Last Will videotape admissible as relevant to plaintiff's injuries). tament including:

 291.CLE Reading of will August on Evidence 

2.

Explain provisions of will

For additional evidence and the join the SCBA  3. tips Askon if and establish that willrules is understood by C/TLitigation Committee, Federal Judge Mae D’Agostino and nd Supreme Court(proceed Judge Richard Aulisi for our 2 Annual Fast Track CLE at Saratoga Race Course August 29 th only if completely understood) startingat 10:00 ending noon with a fabulous buffet and day at the races located in the Rail Pavilion. Contact Paul 4. Ask if C/Tathas any questions and answer all to satisfaction E. DeLorenzo Esq., Chair, for more information at 374-8494. (do not proceed to 5 unless all questions have been answered) _____________________________________________________________________________________  5. Inquire if any changes in will are desired by C/T (if so, make changes and repeat 1- 4 above, proceed Real Estate Practice Seminar only if C/T answers “no”) 6. house Ask ifatwill the way C/T wants it to be It wasa full theis 32nd Annual Seminar (proceed only if “yes”) conducted by the Real Estate Practice Com 7. Determine if C/T understands (s)he is making will mittee. Discussion included, and clockand disposition madeat byright it wise,  commercial development case study with 8. Determine if C/T understands the plan and effect a panel ofofVeronica Reed, Steven Porter, Joel the will Howard, Connie Cahill,if Matthew Fuller, and extent, &  9. Determine C/T is aware of nature,

Marion Porterfield; ethics and attorney accounts, Timothy O’Sullivan, Michael Knight and Michael Gaynor; new approaches to urban revitalization, Robert Hoffman, who was joined by John Polster; and case updates, Michelle Wildgrube and Peter Coffey.

Additional topics were title examination, Richard King, and NYSBA Real Property Law Section update, Steven Alden. The committee is chaired by Lawrence DeAngelus.

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Consideration of Post-Divorce Maintenance Factors The following article is reprinted with permission from a portion of the CLE presentation of Eric Tepper of Gordon Tepper and DeCoursey, LLP, which was conducted at the Schenectady County Bar Association’s Matrimonial Law Seminar on April 18, 2013.

DRL 236(B)(6)(a) indicates that in determining the amount and duration of maintenance, the court shall consider the statutory maintenance factors which is mandatory. Practice tip: In your Statement of Proposed Disposition, closing argument and Findings of Fact and Considerations of Law, provide the court with a rationale for the post-divorce maintenance award which you are proposing. Supply the court with the particular maintenance factor or factors to justify the proposed final maintenance award. Make the judge’s decision writing as easy as possible by suggesting the particular maintenance factors he or she should rely upon in fashioning the final award. Note: When the legislature enacted the temporary maintenance guidelines in 2010, it also added many additional post-divorce statutory maintenance factors. As a result, there are now twenty post-divorce statutory maintenance factors.

equitable distribution award. Keil v. Keil, 85 A.D.3d 1233, 926 N.Y.S.2d 173 (3d Dept. 2011). The amount and duration of the court’s maintenance award specifically took into account the fact that the wife received a $2 million equitable distribution award in a seven-year marriage. Ansour v. Ansour, 61 A.D.3d 536, 878 N.Y.S.2d 17 (1st Dept. 2009). 2. the length of the marriage; Implication: There is a stronger likelihood of longer or even non-durational maintenance awards in longterm marriages than in short-term marriages. Sperling v. Sperling, 165 A.D.2d 338, 567 N.Y.S.2d 538 (2d Dept. 1991). It is not an abuse of discretion to award long-term or even non-durational maintenance in long-term marriages. Rooney v. Rooney, 92 A.D.3d 1294, 938 N.Y.S.2d 724 (4th Dept. 2012). In Scarpace v. Scarpace, 84 A.D.3d 1537, 923 N.Y.S.2d 748 (3d Dept. 2011), the lower court awarded the wife $200 per week in maintenance in a 31-year marriage. In light of the long-term nature of the marriage, taken in the context of other factors, the Third Department made the award non-durational, especially given the parties’ income disparities. See also Moyal v. Moyal, 85 A.D.3d 614, 927 N.Y.S.2d 19 (1st Dept. 2011) where the wife was awarded 15 years of maintenance in a longterm marriage.

The following are the twenty statutory factors enumerated in DRL 236(B)(6)(a):

It is appropriate to limit the duration of maintenance awards in short-term marriages. Cerami v. Cerami, 44 A.D.3d 815, 845 N.Y.S.2d 67 (2d Dept. 2007).

1. the income and property of the responsible parties including marital property distributed pursuant to subdivision five of this part;

Nevertheless, even a very short-term marriage does not necessarily preclude an award of maintenance. See Daniels v. Daniels, 243 A.D.2d 254, 663 N.Y.S.2d 141 (1st Dept. 1997), where the court awarded the wife with 20 months of maintenance in a short-term, 10month marriage. In this case, the wife had retired from her career shortly before the marriage.

Implication: Not only must the court consider the parties’ respective incomes in determining maintenance, but it also shall consider the property being distributed—the equitable distribution award. Thus, the determination of the amount and duration of maintenance is inextricably linked to equitable distribution. A wife was awarded maintenance of $500 per week for two years in light of her considerable distributive award and the court’s finding that she was capable of becoming self-supporting. Falgoust v. Falgoust, 15 A.D.3d 612, 790 N.Y.S.2d 532 (2d Dept. 2005). It was not an abuse of discretion for the court to award the wife $1,000 per month in non-durational maintenance, even taking into consideration her substantial

3. the age and health of both parties; Implication: Greater financial protection should be afforded to older spouses and those in poor health. A wife was awarded non-durational maintenance given her age and her health, which made it unlikely that she would become self supporting. Marino v. Marino, 52 A.D.3d 585, 860 N.Y.S.2d 170 (2d Dept. 2008) (Continued on Page 7)

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Where the lower court failed to articulate the statutory factors it relied upon in fashioning a maintenance award, the Third Department determined that the record was sufficient for the Appellate Division to substitute its judgment. The Appellate Division upheld an award of $350 per week in maintenance for six years, until the wife turned 62, in light of her poor health and her age, and also taking into consideration the gross disparity in incomes (the wife earned approximately $18,000 per year while the husband earned approximately $97,000 per year). Nichols v. Nichols, 19 A.D.3d 775, 797 N.Y.S.2d 139 (3d Dept. 2005). The wife was awarded lifetime maintenance where she suffered from a medical condition and was unable to be self-supporting. Rabinovich v. Shevchenko, 93 A.D.3d 774, 941 N.Y.S.2d 173 (2d Dept. 2012) 4. the present and future earning capacity of both parties; This factor requires the court to consider the present and future earning capacity, not only of the recipient spouse, but also of the payor spouse, something that is frequently overlooked. Supreme Court awarded the wife $19,500 per year in maintenance for three years after the sale of the marital residence. The Fourth Department found that Supreme Court properly balanced the wife’s needs and earning capacity against the husband’s ability to pay, including the fact that she was able to be self-supporting and had the capacity to increase her earnings in the future. Burns v. Burns, 70 A.D.3d 1501, 894 N.Y.S.2d 795 (4th Dept. 2010). A maintenance award should be a delicate balance between a party’s needs and means, given consideration of the relevant statutory factors. Where the husband was in good health and had significant earning potential (he earned $300,000 per year) while the wife suffered from chronic asthma and was unlikely to earn significantly more than her current income of $50,000 per year, it was appropriate to increase her maintenance award to $500 per weeks for seven years. Mairs v. Mairs, 61 A.D.3d 1204, 878 N.Y.S.2d 222 (3d Dept. 2009). 5. the need of one party to incur education or training expenses; This is one of the new maintenance factors. This new factor “5” interestingly does not tie education or training to a party’s ability to be self-supporting, and lets education and training stand alone as factors for establishing the maintenance award.

Page 7 Maintenance was appropriate to enable a spouse to obtain the skills and training necessary to become self-sufficient. Jones v. Jones, 92 A.D.3d 845, 939 N.Y.S.2d 510 (2d Dept. 2012). 6. the existence and duration of a pre-marital joint household or a pre-divorce separate household; This is one of the more controversial, new maintenance factors. It allows the court to consider whether the parties were living separately prior to the divorce. As an example, if the parties lived together for 10 years before the marriage, arguably, the court can now consider that fact in determining both the amount and duration of the post-divorce maintenance. Conceivably, both higher and longer maintenance awards could be justified if the parties cohabitated at length prior to the marriage. Similarly, to the extent that the parties were physically separated for any length of time prior to the divorce, that, too, can be considered and, arguably, could justify a lesser and shorter post-divorce maintenance award. 7. acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty nine of the social services law; This is also one of the new post-divorce maintenance factors. For the first time, the legislature has implicitly authorized courts to consider domestic violence in fashioning post-divorce maintenance awards. Though courts previously had the ability to consider domestic violence, the existence of domestic violence has now been elevated to one of the statutory factors if it inhibits a party’s earning capacity or ability to obtain meaningful employment. Practice tip: If you represent a client who suffered injuries, emotional or physical, due to domestic violence, try arguing that the domestic violence, in and of itself, justifies both a longer and greater maintenance award. Whether you succeed depends, in large part, on your ability to link those injuries to your client’s reduced earning capacity. Further, this stand-alone factor is not limited merely to domestic violence. If the other spouse did anything else to hinder your client’s earning capacity or ability to obtain meaningful employment, argue those factors as well. For example, if the other spouse contacted your client’s employer and made false allegations resulting in your client’s firing, those facts, if proven, could affect the final maintenance award. (Continued on Page 8)

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8. the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; Prior to the 2010 legislative amendments, this was the old factor ‘4” and is duplicative of the new factor “5.” Supreme Court properly awarded a wife $1,000 per month in maintenance until she was eligible for social security retirement benefits based upon her ability or lack thereof to be self-supporting. The fact that the wife has an ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of her marital standard of living. O’Connor v. O’Connor, 91 A.D.3d 1107, 937 N.Y.S.2d 355 (3d Dept. 2012) The purpose of post-divorce maintenance is to provide financial support for the recipient spouse while she or he gains skills and employment necessary to become selfsufficient. The trial court has discretion in determining the amount and duration of the post-divorce maintenance given the statutory factors and pre-separation standard of living. Roberto v. Roberto, 90 A.D.3d 1373, 936 N.Y.S.2d 337 (3d Dept. 2011) The trial court’s maintenance award was increased from three years to five years given the parties’ more than 20year marriage, and the fact that the wife needed additional credits to complete her master’s degree which would enable her to earn more money. Santana v. Santana, 51 A.D.3d 542, 859 N.Y.S.2d 49 (1st Dept. 2008). 9. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; This is the old factor “5” and is simply renumbered as factor “9.” This factor is particularly relevant in longer term marriages, where one spouse sacrificed his or her career, or delayed education or training for the sake of the marriage. For example, where one spouse sacrificed his or her career to be a stay-at-home parent, this should factor into the final maintenance award. A wife was awarded lifetime maintenance in a 23-year marriage in part due to her role in raising and educating the parties’ two children, her minimal job skills and the fact that she was out of the workforce since 1977. Pickard v. Pickard, 33 A.D.3d 202, 820 N.Y.S.2d 547 (1st Dept. 2006). Where the husband earned more than $1 million a year as a radiologist and the wife had not been employed outside of the home since two years after the marriage, the

wife was awarded $20,000 per month in maintenance for five years and then $15,000 per month for four years thereafter. Wortman v. Wortman, 308 A.D.2d 486, 764 N.Y.S.2d 282 (2d Dept. 2003). 10. the presence of children of the marriage in the respective homes of the parties; This is the old factor “6,” now renumbered as factor “10.” Implication: In some cases, the custodial parent should be permitted to remain home with the children and not penalized for working inside the home. Arguably, the fact that a parent is caring for the children is a factor the court can consider in fixing the final maintenance award. It was appropriate for the trial court to award the wife $1,000 per week in maintenance as an appropriate exercise of the Supreme Court’s discretion. However, given the children’s learning disabilities and documented emotional problems, as well as the fact that the wife took an active role in their schooling, homework and afterschool activities, it was appropriate to lengthen the final maintenance award to 15 years. The 15-year award was deemed appropriate to allow all three children to reach age 18, and also afford the wife the time needed to acquire appropriate job skills. Klein v. Klein, 296 A.D.2d 533, 745 N.Y.S.2d 569 (2d Dept. 2002). 11. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity; This new maintenance factor has also garnered quite a bit of controversy. For the first time, the fact that a

“For the first time, … caring for elderly parents or in-laws is a recognized, statutory factor….” spouse is caring for elderly parents or in-laws is a recognized, statutory factor for determining post-divorce maintenance. Similarly, the fact that a spouse cares for stepchildren or a disabled adult child is also recognized for the first time as being a statutory basis for the final maintenance award. The law has long recognized that a parent’s care of a disabled or special needs child can be a factor which can (Continued on Page 9)

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be considered in awarding final maintenance. Evans v. Evans, 55 A.D.3d 1079, 866 N.Y.S.2d 788 (3d Dept. 2008); Kaplan v. Kaplan, 21 A.D.3d 993, 801 N.Y.S.2d 391 (2d Dept. 2005). However, when it comes to disabled adult children, the law generally held that, absent some form of agreement, child support ends at age 21—a fact that has harsh consequences for a parent continuing to care for such a child after the age of 21. Factor “11” now allows the parent caring for a disabled adult child to seek support another way—by arguing that such care, in and of itself, is a statutory basis for awarding post-divorce maintenance. 12. the inability of one party to obtain meaningful employment due to age or absence from the workforce; This is another new maintenance factor added by the 2010 legislation. It is somewhat redundant with factor “3” (age and health of parties) and factor “9” (reduced earning capacity due to sacrificed employment or career opportunities or delayed education during the marriage. 13. the need to pay for exceptional additional expenses for the child/children, including but not limited to schooling, day care and medical treatment; This is also one or the more controversial post-divorce maintenance factors. Rather than amend the Child Support Standards Act to provide for increased child support upon a finding of “exceptional” additional expenses for the children, the legislature saw fit to make the children’s “exceptional” schooling, day care and medical expenses a basis for the final maintenance award. Practice tip: If you represent the custodial parent of children with exceptional expenses, make the case that those out-of-the-ordinary expenses not only justify a maximum child support award, but also spousal maintenance. Query: What constitutes “exceptional additional expenses” for the children? Future case law will need to answer that question.

Page 9 Under the Internal Revenue Code, alimony payments meeting the necessary requirements are deductible to the payor and included in the income of the payee. 26 USCA 71(a) and 215. It is incumbent on the practitioner to provide the court with expert testimony concerning the tax impact on each party of various maintenance scenarios so as to enable the court to best formulate the appropriate maintenance award. Practice tip: If you represent a spouse needing maintenance, consider having an accountant testify at trial as to what the gross maintenance payment will need to be, based on your client’s projected tax bracket, to achieve the net dollar figure to enable your client to meet his or her needs. There is authority for courts to make temporary maintenance awards non-deductible to the payor and nontaxable in the payee’s income. IRC § 71(b)(2); Kesten v. Kesten, 234 A.D.2d 427, 650 N.Y.S.2d 807 (2d Dept. 1996); Fuegel v. Fuegel, 232 A.D.2d 608, 648 N.Y.S.2d 695 (2d Dept. 1996); Lowe v. Lowe, 211 A.D.2d 595, 633 N.Y.S.2d 26 (1st Dept. 1995). However, it is rare that the court makes final awards non-taxable and non-deductible. In Grumet v. Grumet, 37 A.D.3d 534, 829 N.Y.S.2d 682 (2d Dept. 2007), the Appellate Division overturned the Supreme Court’s award of $16,000 per month in nontaxable, non-durational maintenance to the wife. The Second Department noted that the award should have been taxable to the wife and deductible by the husband, as there was no rationale for a departure from the norm envisioned by current Internal revenue Code provisions. See also Markopoulos v. Markopoulos, 274 A.D.2d 457, 710 N.S.Y.2d 636 (2d Dept. 2000). However, see Maggi v. Maggi, 303 A.D.2d 650, 756 N.Y.S.2d 789 (2d Dept. 2003), which modified a final award to make the maintenance payments non-taxable to the support recipient and non-deductible by the spouse making the payments. 15. the equitable distribution of marital property; This is one of the new 2010 maintenance factors. This factor, too, seems redundant, as it arguably is subsumed within factor “1”—the income and property of the respective parties including marital property which is being distributed.

14. the tax consequences to each party; Implication: Courts can take into consideration tax consequences in determining maintenance.

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As previously noted under factor “1,” maintenance and equitable distribution are inextricably linked, as the extent of the asset distribution can affect both the amount and duration of the final maintenance award (see case law discussed under factor “1”). 16. contributions and services of the party seeking maintenance as a spouse parent, wage earner and homemaker, and to the career or career potential of the other party; This was the old factor “8.” This factor enables the court to take into consideration a spouse’s contribution as a homemaker, parent and wage earner, as well as a spouse’s contributions to the other’s career, in fashioning the maintenance award. Thus, in a 30-year marriage, the wife was entitled to maintenance in large part due to her functions as the homemaker and the primary caretaker of the children. Nielson v. Nielson, 259 A.D.2d 916, 686 N.Y.S.2d 894 (3d Dept. 1999). 17. the wasteful dissipation of marital property by either spouse; Implication: A spouse should not be rewarded for wastefully dissipating marital assets. This is the old factor “9,” and is also a factor for the court to consider in determining equitable distribution (factor “12” of the equitable distribution factors). Although a spouse’s wasteful dissipation of marital assets is typically used as an argument for an unequal distribution of assets, it can also be used to argue for or against postdivorce maintenance, depending on which spouse engaged in the wasteful discrepancies. A spouse’s wasteful dissipation of marital assets was one of the factors cited by the court in denying a spouse postdivorce maintenance. Brian v. Brian, 36 A.D.3d 847, 829 N.Y.S.2d 591 (2d Dept. 2007). 18. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. This is the old factor “10,” and is also one of the equitable distribution factors (factor “13” of the equitable distribution factors). Like wasteful dissipation, a spouse’s transfer in contemplation of a matrimonial action is typically used as an argument for an unequal distribution of assets.

However, such transfers can also be used to argue for or against post-divorce maintenance, depending on which spouse engaged in the economics misconduct by making a transfer in contemplation of a matrimonial action. 19. the loss of health insurance benefits upon distribution of the marriage, and the availability and cost of medical insurance for the parties; This maintenance factor was added in 2009, and applies to matrimonial actions commenced on or after September 16, 2009. It tracks a similar factor which was added as part of the equitable distribution factors. The legislature also separately enacted DRL 255 requiring parties to be notified that, once a judgment of divorce has been granted, a party may no longer be eligible for coverage under the other spouse’s health plan. While the federal COBRA law allows a spouse to be covered for up to 36 months, post divorce, the coverage is often expensive. Factor “19” permits a court to take into consideration the financial costs of losing health insurance coverage when awarding maintenance. Courts can also take this into consideration in fashioning the equitable distribution award. Practice tip: If you represent the spouse who potentially is losing coverage, put in proof concerning the cost to your client of having to obtain her or his own health insurance coverage. Use factor “19” to parlay that cost into upping the amount and duration of the requested maintenance award. 20. any other factor which the court shall expressly find to be just and proper. The primary consideration under this “catch all” factor: marital fault. While marital fault will not preclude an award of maintenance, it is a relevant factor. Holmes v. Holmes, 25 A.D.3d 931, 807 N.Y.S.2d 217 (3d Dept. 2006). In this case, the wife’s alcohol and drug abuse, and her assaultive conduct toward her husband, and use of marital funds to support her drug habit were cited as factors in denying her an award of post-divorce maintenance. See also Myers v. Myers, 255 A.D.2d 711, 680 N.Y.S.2d 590 (3d Dept. 1998); Maloney v. Maloney, 114 A.D.2d 440, 494 N.Y.S.2d 356 (2d Dept. 1985)

June 2013

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Spring Awards Event Salutes SCBA Colleagues The Association’s spring social and awards presentation achieved record attendance as colleagues, family members and friends filled the Water’s Edge Lighthouse banquet room to near capacity with more than 110 guests. Through the efforts of Senator Hugh Farley and his staff, resolutions from the state Senate were presented to all our honorees. We appreciate the work of our Awards and Sunshine Committee chaired by John Seebold, with committee members Hon. Mark Powers and Cristine Cioffi, and Social Committee Chair Rachel Rappazzo. And thanks to Frank Tedeschi for the photos below. For more photographic memories of the evening, visit: https://picasaweb.google.com/109859222451834293577/ SCBASpringSocialAwards?authkey=Gv1sRgCN7qsYbMxMGvhwE# Lifetime Achievement: This award was presented to Phil Rodriguez by his son Stephen Rodriguez who related how his father has always displayed a single-mindedness and persistence, allowing him to zealously and skillfully represent his clients over his approximate 50 years of practice. Rather than recount accomplishments, Phil chose to describe how he became involved in the Law, thanking family members, including his wife, who he credited with encouraging him to pursue a legal career. Lawyer in Service to the Community: Only Frank Tedeschi, right, could juggle a camera with one hand while, with the other, presenting this award to Martin Cirincione. Frank described the many ways in which Marty has greatly impacted our community both in service to clients and as a volunteer. In accepting the award, Marty downplayed his accomplishments, crediting his parents with investing him with the notion of community service and thanking his family for allowing him to perform such service. Lawyer of the Year: Immediate Past President Frank Putorti, right, made the presentation of Young Lawyer of the Year to his law associate, Andrew Healey, citing the many accomplishments Andrew has achieved in his young career

President’s Award: Ron DeAngelus, far right, presented Judge Robert Doran with the President's Award,. Reserved for special recognition, this is only the third time that this award has been given. The presentation saluted Judge Doran’s legendary knowledge of the law, creativity, approachable demeanor, dedication and hard work, including his efforts in clearing calendars.

Lawyer of the Year: Judge Vito Caruso, Administrative Judge for the Fourth Judicial District (immediate right), received the Lawyer of the Year from Judge Vincent Reilly.

Young

He described Judge Caruso’s achievements, unswerving dedication to constituents and profession, and concern for others. Despite hardship at a very young age that made it impossible for Judge Caruso to attend law school, he distinguished himself by qualifying for the bar exam which he passed in one sitting, through a course of clerkship. The award has been given to lawyers in the past. Judge Caruso observed that his lawyerly skills are brought to bear every day in his role as a judge and that a good judge cannot lose the essential connection to both the community and the bar. His continued commitment to the community were evidenced in his recounting of those who have assisted him over the years and recognition of his family.

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Member Meeting Proceedings

f.

Peter Coffey provided an update on the New York State Bar Association’s House of Delegates meeting, which included a report on the quality of mandated representation and questions raised on possibly ongoing diversity issues. quality of mandated representation and questions raised on possibly ongoing diversity issues.

g.

Peter Coffey also provided an update on the Real Estate committee, which started 30+ years ago. The next Seminar will be on May 15, 2013; some great speakers are scheduled and the seminar will include ethics as well.

h.

Andrew Healey welcomed six new members to the Association: Nicole Clouthier, Mark Gaylord, Kris McConville, James LeBrou, Michele Miller, and Frank B. Strauss, Jr.

April 18, 2013—12:00 p.m. Water’s Edge Restaurant, Glenville, New York The meeting was called to order at 12:00 p.m. by President Michael Basile, with a sufficient number of members of the Association being then present to constitute a quorum. President Basile welcomed those Judges who were present, as well as the family and colleagues of Michael Wallender who were present for the memorial. Finally, President Basile reminded the members that a matrimonial CLE would follow the meeting. 1.

The minutes from the January 2013 membership meeting had been published and presented to the members. A motion to approve was made by Richard Antokol, second by Frank Tedeschi, and unanimously approved.

2. President Basile announced that submission of names for the Nominating Committee would be made and collected during the meeting. 3.

4.

A reminder was made to the members about Legal Aid’s “90 for 90” event, to be held on May 2, 2013 at 5:30 p.m. at the Glen Sanders Mansion in Scotia.

5.

Judge Caruso announced that we need to have six more members who are residents of Schenectady County become or renew their membership to the New York State Bar Association in order to regain our second delegate.

6.

Bruce Trachtenberg provided an update about Law Day, coming up on May 1, 2013. The program includes a panel at Schenectady High School, with about 75-80 students signed up to attend and panelists including Judge Reilly, Bob Carney and many other members. We have the Lally Room at SCCC from 10 a.m.-3 p.m., and the Liberty Bell Award will be presented at 11:30 a.m. at the college, to Ron Butler (coordinator for the Drug Court Program).

7.

A memorial was then had for deceased member Michael Wallender, with an introduction by President Basile. Family and colleagues of Mr. Wallender from Couch White were present. A moving letter from Chip Gordon was read, and testimonials were offered by Michael Wallender Jr. and Robert Hoffman.

President Basile then asked for any Committee Reports: a.

The Treasurer’s Report was circulated to the members.

b.

Judge Slezak was recognized for her and the Elder Law Committee’s work on the recent seminar. Attendance had increased and reviews were very positive.

c.

The Technology Committee had recommended some updates for the Association’s website, which will be on the Board’s May 2013 agenda for review and consideration.

d.

The local countywide contest for the Mock Trials has ended, with Notre Dame-Bishop Gibbons the winner. They will be going to the regionals.

e.

Diane Enzinna provided an update on the Federal Bar meeting, from April 26-28, 2013 in Montreal. One of our members, Michelle Wildgrube, is the President. A CLE was offered, including Judge Clark and Judge Sise, among others.

f

The results of the selection of names for Nominating Committee were tallied, and the top five results were named: John Seebold, Michelle Wildgrube, Gregory Schaaf, Cory Ross Dalmata and Larry Gordon. The most votes went to Larry Gordon and Michelle Wildgrube, who would serve as Co-Chairs. There being no additional business to come before the Membership, upon motion duly made by Jack Warner, (Continued on Page 13)

Judges June 2013

Page 13

Unveiling Honors Judges Reilly and Kramer Grandchildren helped Supreme Court Justices Vincent J. Reilly Jr., above left, and Barry D. Kramer, at left, unveil their portraits in Association ceremonies held at the Schenectady County courthouse. Judges Reilly and Kramer have reached retirement age but continue to serve by certification. Family, friends, and colleagues joined the applause as the judges recalled paths that led them to the law and expressed pride in being members of the profession and honor to serve on the bench.

SCBA in Community Service: Law Day Events Increase Public Education High school students and adults gained greater understanding of the legal process and issues, thanks to the Schenectady County Bar Association public service activities marking Law Day. Our gratitude to Committee Chair Bruce Trachtenberg, with assistance from his paralegal Mary Siudy, for planning this successful event.

_______________________________________ (Continued from Page 12) Member Minutes… seconded by Richard Weiskopf and unanimously passed, the meeting was adjourned. The next Membership Meeting is the Annual Meeting set for June 20, 2013 at 12:00 p.m. at the Glen Sanders Mansion in Scotia. Respectfully submitted, Barbara L. Guzman, Secretary

Below left, the public information Ask-a-Lawyer program, held at Schenectady Community College, was well attended and appreciated. Handling the questions were Andrew Healey, David Fallon, Lynn Coles, Tara Moffett, Jenifer Wharton, Deanna Siegel, Daniel Malloy, and Lori Bovee. Above right, Bruce Trachtenberg presents the Liberty Bell Award to Ronald Butler, Schenectady County and City Drug Court Coordinator, who spoke about the positive impact of the Drug Court as a catalyst in changing lives. The award is presented to non-lawyers for their efforts in furthering the justice system. Also as part of the Association’s Law Day events, volunteer attorneys and judges presented a panel discussion at Schenectady High School. More than 70 students attended a program at Schenectady High School, which was chaired by the Hon. Vincent J. Reilly, Jr. and included District Attorney Robert Carney, Nancy Snyder, Jorge Rodriguez, Robert Hoffman and Kris Hanson. Panelists spoke about considerations in the their career paths in different areas of law.

P.O. Box 1728 Schenectady NY 12301-1728 518-393-4115 www.schenectadycountybar.org [email protected]