BAEC Bulletin - September/October 2023

Volume 63, No. 2

Bar Association of Erie County Bulletin September/October 2023 | Volume 63 | No. 2

136 TH ANNUAL AWARDS CELEBRATION

November 2, 2023 | Seneca One Tower 2023 HONOREES PAGE 6

Michele A. Brown Lawyer of the Year Award

Hon. Acea M. Mosey Outstanding Jurist Award

Hon. Susan M. Eagan John T. Curtin Profiles in Courage Award

Hon. David L. Edmunds Jr. (Ret.) Charles H. Dougherty Civlity Award

Jill K. Bond, BAEC Immediate Past President Special Service Award

Robert J. Feldman Award of Merit (posthumously)

Member Assistance Program; Did You Know? Page 10 Student Loan Debt Consumer Assistance at Neighborhood Legal Services Page 11 A(rtificial) I(ntelligence) Created This, How Can I Protect It? Page 14

Pro Bono Service: Helping Yourself While Helping Others Page 4

2 | September/October 2023 | BAEC Bulletin

Bar Association of Erie County Bulletin Table of Contents Features Letter from the President From the Erie County Bar Foundation Bar Association of Erie County 136th Annual Awards

4 5 6 8 10 11 12 14 18 19

Member Assistance Program | Did You Know? Cancer and It’s Impact on the Legal Community In the Public Service | Neighborhood Legal Services

Congratulations to our 2023 Federal Court Dinner Award Recipients! Cyber Law: A(rtificial) I(ntelligence) Created This, How Can I Protect It? BAEC Young Lawyers Committee Highlight BAEC Upcoming Events Request for Public Comment on Amending 22 NYCRR § 202.12 Concerning Preliminary Conferences Public Notice for Reappointment of Incumbent Magistrate Judge In SSD Claims, What is More Important: Maximum Benefits or Shorter Wait Times? Terrence Connors to Receive 2023 American Inns of Court Professionalism Award

20 20 28 29 In Every Issue

3 9

BAEC Sponsors Member Assistance Program BAEC Committees CLE Program Calendar Western District Case Notes Death & Taxes

16 17 21 24 27 27 30 31 32 33 36 37 37

Bench and Bar In the News Join the BAEC LRIS Panel BAEC New Members Contributions to the Foundation In Memoriam BAEC Life Members and Contributing Members Classifieds

Bulletin Advertisement Index Bulletin Submission Deadline

Bar Association of Erie County President Vice President Treasurer Timothy J. Graber Lauren E. Breen

Sarah M. Washington Vanessa C. Gabriele Anne M. Noble Stephanie Belasik Chase Kalandia Board of Directors

Deputy Treasurer Executive Director Editor of the Bulletin Layout & Design

Anne K. Bowling, Jamila A. Lee, Sharon Nosenchuck, Hon. Stephanie A. Saunders, Stephen C. Earnhart, Katie Kestel Martin, Maura O’Donnell, Carmen L. Snell, Elise L. Cassar, Joshua E. Dubs, Keri D. Callocchia, Cheyenne N. Freely

BAEC Bulletin | September/October 2023 | 3

Bar Association of Erie County SPONSORS Proudly Announcing Our 2023 Sponsors! These organizations have partnered with the BAEC for 2023.

Annual Law Firm Sponsors

– ATTORNEYS –

THE LAW OFFICES OF TIMOTHY M. O’MARA

Annual Corporate Sponsors

4 | September/October 2023 | BAEC Bulletin Letter from the President

When deciding whether something is worth doing, whether it has intrinsic value, we often ask whether it has withstood the test of time. For practicing lawyers, performing pro bono legal work has certainly withstood the test of time. Lawyers have been providing pro bono legal services well before our country was founded and it has deep roots here. For instance, John Adams, our second President, performed pro bono legal work for British soldiers who were prosecuted for what became known as the Boston Massacre. Performing pro bono legal services has not only survived but it has thrived. Indeed, as the decades have passed since the founding of this country, appreciation for pro bono legal services has only grown. The logic is obvious— if someone lacks means to hire a lawyer, that person may well be denied the full benefit of a proper and fair application of the law. The issue is access to justice, plain and simple. Regrettably and despite many successful and valuable programs, the need for pro bono legal services has grown much faster than the supply of those services. About ten years ago, the New York State Court of Appeals established a rule requiring those seeking admission to the New York State Bar to submit proof that they have performed fifty hours of pro bono legal services. Hopefully, this pre-admission experience of providing pro bono legal services will be rewarding to the applicants so much so that it encourages more pro bono work after admission and helps close the gap between the need for and supply of pro bono services. While pro bono service is not mandated for attorneys admitted to practice in New York State, the experience of providing pro bono legal services is invaluable. This is especially true for early career lawyers because pro bono work is often hands-on training that cannot be found in a textbook. Thus, it benefits not only the person in need of legal services who cannot afford a lawyer and the justice system that lawyers are bound to serve, but also the lawyer who is providing the pro bono services. The opportunity to learn and grow as a professional should in and of itself be sufficient motivation to provide pro bono legal services but it is difficult to imagine that a lawyer could render such services and help a fellow human being in need without feeling a deep sense of gratification for having done so. If you have not had the experience of handling a pro bono case, appreciating the value of providing pro bono legal services is perhaps best gained by the testimony of lawyers who have performed them. One source for such testimonials is the website maintained by the United States District Court for the Western District of New York where testimonials from attorneys who have provided pro bono legal services are published. These testimonials are compelling firsthand accounts from lawyers who have provided pro bono services. If you are intereted in pro bono work call Volunteer Lawyers Project at (716) 847-0662 Ext. 321. The term pro bono comes from the Latin phrase “pro bono publico” which means for the public good. And advancing public good is integral to our bar and our code of ethics. Keep up the good work. Pro Bono Service: Helping Yourself While Helping Others

TIMOTHY J. GRABER President Bar Association of Erie County

BAEC Bulletin | September/October 2023 | 5

FROM THE Erie County Bar Foundation

What Does the Bar Foundation Do? Our Foundation helps lawyers. Sadly, some of our fellow lawyers struggle to make ends meet. The causes are various – physical illness, family crisis, substance use disorders, death, divorce, mental health, and loss of employment. Any of these circumstances can cause our friends’ lives and practice to spin out of control. The Foundation is there to help, not to judge nor blame. We, working closely with a social worker, provide financial assistance to secure housing, office space, health insurance, heat and electric costs, car expenses and food assistance. We also advise that our friends reach out to our Member Assistance Program (“ MAP”) which the Foundation helps to underwrite, so those more skilled than our Board members can help our friends through their troubling times. In short, the Foundation is a lifeline and a problem solver when life doesn’t go exactly as planned. And the unexpected can and does happen to all of us. How Do We Do These Things? Besides leaning on amazing volunteers and skilled professionals, we receive and need financial support from you. You contribute to the annual campaign, you make contributions during the year in memory of a deceased member of the Bar, and you make a donation recognizing a significant event in the accomplishments of a friend. You pay it forward. You make these contributions because you are compassionate. You make these contributions because you care about those who do what you do but can’t because of personal problems they have encountered. You do it because you are a good and caring friend. You do it because it’s the right thing to do. So thanks for all you’ve done for the Foundation in the past and, if able, please continue to support our friends in the coming year. Our need is greater than ever.

KEVIN SPITLER President Erie County Bar Foundation

SCAN TO DONATE TO THE FOUNDATION

Thanks, Kevin

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6 | September/October 2023 | BAEC Bulletin BAR ASSOCIATION OF ERIE COUNTY 136th Annual Awards The Bar Association is excited to announce the 136th Annual Awards Celebration! This year’s event will be on Thursday, November 2 nd , 2023 at 5pm and will be at the Seneca One Tower. A special thank you goes out to Nota as our Presenting Sponsor. President Tim Graber and Vice President Lauren Breen will be hosting the evening, presenting awards to six extraordinary people for the incredible work they have done in our community. The event is open to all. Registration is open and tickets can be purchased by visiting - https://eriebar.org/events/annualawards/

MEET YOUR 2023 HONOREES

Lawyer of the Year Award : Michele A. Brown Childrens Legal Center, Executive Director (1999-2023) The Lawyer of the Year award is presented annually to recognize outstanding service and dedication to the legal profession and the Bar Association of Erie County which: • Promotes the good will of the profession. • Fosters respect for the legal profession. • Elevates the standard of integrity, honor and courtesy in the legal profession. • Encourages the spirit of fellowship among members of the Bar. • Protects and promotes the interests of the people and the members of the bar, the legal profession and the administration of justice. • Promotes the maintenance and protection of American institutions and principles. Hon. John T. Curtin Profiles in Courage Award : Hon. Susan M. Eagan Erie County Court Judge The John T. Curtin Profiles in Courage Award recognizes the truly historic tenure of Hon. John T. Curtin. This award was created to recognize a distinguish a practitioner/s who exemplifies the same moral courage and sense of justice that Judge Curtin brought to the bench every day.

Outstanding Jurist Award : Hon. Acea M. Mosey Erie County Surrogate’s Court Judge

The Outstanding Jurist award is not presented annually but when there exists a jurist whose career exemplifies the highest standards of judicial conduct for integrity, impartiality and independence; who is knowledgeable of the law and faithful to it; who is not influenced by partisan interests, public clamor or fear of criticism; who is patient, dignified and courteous to all who appear before him or her; and who endeavors to improve the administration of justice and respect for the rule of law.

BAEC Bulletin | September/October 2023 | 7 BAR ASSOCIATION OF ERIE COUNTY 136th Annual Awards

Charles H. Dougherty Award : Hon. David L. Edmunds, Jr. BAEC Past President, (ret.)

The “Civility Award” is presented to a distinguished practitioner who exemplifies the same sense of civility and decorum that characterized the career of the Association’s former president, Charles H. Dougherty, who was always forthright and scrupulously fair, and elevated the standard of integrity, honor and courtesy in the legal profession.

Award of Merit (posthumously) : Robert J. Feldman Gross Shuman PC, Partner (1977-2022)

There is no specific criteria for the Award of Merit which is reserved to recognize extraordinary circumstances. Traditionally, the award has been given to someone who exhibits the exceptional attributes to which lawyers aspire and/or for circumstances that warrant special recognition.

Special Service Award : Jill K. Bond BAEC Immediate Past President, (ret.)

The Special Service award is given to a lawyer whose exceptional service to the profession has contributed to the good and welfare of the Bar Association of Erie County and its members.

JOIN US IN CELEBRATION ON NOVEMBER 2 nd AT SENECA ONE

CLICK TO PURCHASE TICKETS

8 | September/October 2023 | BAEC Bulletin MEMBER ASSISTANCE PROGRAM DID YOU KNOW?

Member Assistance Program The Bar Association of Erie County partners with Child & Family Services EAP to provide our Member Assistance Program (“MAP”) to all BAEC members and members of their household. The MAP helps problem solve - in all sorts of situations with 24/7 telephone crisis counseling, individual counseling sessions, mediation and conflict coaching and many other resources. The hallmark of MAP is immediate confidential access to mental health counseling. The MAP will complement and broaden the other wellbeing resources and services offered by the BAEC and Foundation. In addition to our MAP, the BAEC has a number of programs, services, and resources available to the WNY legal community, dedicated completely to helping with their mental health. View all of our benefits and services on our Lawyer Wellbeing web page. For more information

CLICK TO VIEW OUR LAWYER WELLBEING SERVICES

BAEC Bulletin | September/October 2023 | 9

BY KATIE KESTEL MARTIN, PUSATIER SHERMAN ABOTT & SUGARMAN, LLP Cancer and Its Impact on the Legal Community 10 | September/October 2023 | BAEC Bulletin

ACS 2022) There is so much more work to be done.

In one way or another, we are all affected by cancer. It’s a cruel disease in that it spans many different types with different symptoms and causes. So, it’s ever challenging to screen, treat, and – hopefully, someday – cure. It is also a disease that affects everyone regardless of socioeconomic class, race, gender, or lifestyle.

This past September, I was fortunate to attend legislative meetings in Washington DC with Senate offices and Representatives of New York State. About 700 volunteers attended various meetings to ensure ample funding for cancer research, no cost sharing for high risk insured men for prostate screenings, and Medicare coverage of multicancer early detection screening. These policies can provide for life saving measures before a cancer is too far gone for effective treatment. I thought to write this piece to share some hope and to remind ourselves that our legal community is no exception to the challenges that cancer brings. I have seen folks face down death and fight to live. I’m sure many of the readers who find this article have too. In this fight, there really is no stronger inspiration to realize what good we still may have in our day or in our time with the ones we love. Consider screening awareness for yourself as well, especially for breast, colon/colorectal, prostate, and lung cancers, especially if you are at high risk due to heredity or prior conditions. These screenings can help detect cancers early enough to allow for less invasive treatment and, hopefully, give better prognoses. There are local mobile units and offices who provide such screenings. Again, unfortunately, there continues to be a need for access and to eliminate cost sharing for early detection. Policy can only do so much; there needs to be support and awareness to ensure all communities can be screened early and effectively. To support a loved one or friend during their treatment could be as easy as helping with meals, offering to carpool their kids to and/or from school, or checking in with a cup of coffee. Bring them some hope that they are heard and loved. Do not forget to keep handy the resources of the Erie County Bar Association including the Membership Assistance Program and the Erie County Bar Foundation. To help support those facing cancer as well as other life challenges, please consider a donation to the Erie County Bar Foundation. In the meantime, this October, let’s celebrate our survivors including here in our Bar. Let’s remember those we have lost to this terrible disease. And, I ask you as advocates in our community, help fight back. Advocate for good and positive change for those tangled in the health care system while faced with a diagnosis.

A person who faces cancer may be feeling as though they are faced with a world of disruption, confusion, and maybe chaos. Of course, there is also love, support, and above all hope. To quote Marcus Aurelis, the Stoic “Philosopher King”, “To be like the rock that the waves keep crashing over. It stands unmoved and the raging of the sea falls still around it.” The cancer survivor, or “rock”, is strongest in this storm when they are supported and do not feel they stand alone. I have been a volunteer with the American Cancer Society and American Cancer Society Cancer Action Network for 15 years. I have met some of the most inspiring, courageous people in my journey as a volunteer and advocate. I have also seen the ugly, heartbreaking side. Individuals and families who face cancer treatment are also facing scary realities like rent or mortgage payments still being due, transportation (including transportation to far away treatment centers), child care (especially during treatment or in recovery from treatment), student loans, debt, medical bills… the list is endless. This feeling of lack of control can only deepen if a person lacks access to resources, doctors, and early detection. October is Breast Cancer Awareness month. While ALL cancers are important and in need of support, there’s an important reason we should pay special attention to this cause in particular – it brought the taboo of the private cancer struggle to light, and is now saving lives. It was not until recent history that mammograms were covered by most insurances. Screenings and therefore access to screenings makes the difference when a cancerous lump can be discovered and the chance to effectively treat and eradicate the cancerous cells. Early screening and early detection can save lives. However, we should never forget that breast cancer is still one of the four most common cancer types. And despite the efforts to increase early detection and improve treatment, the “mortality rate in Black women remains 41% higher than in White women, despite the lower incidence.” (Cancer Facts and Statistics,

BAEC Bulletin | September/October 2023 | 11

In the Public Service Student Loan Debt Consumer Assistance Program at NLS NEIGHBORHOOD LEGAL SERVICES

and forbearances. Our trained staff can show consumers how to get out of default to prevent wage garnishments, social security offsets and tax intercepts. We can also mediate issues with loan servicers and lenders. We have already assisted many WNY borrowers with many of these issues and would like to help attorneys with student loan debt as well. Our assistance is confidential and unbiased as well as free. Neighborhood Legal Services student debt counselors can assist borrowers in Erie, Niagara, Genesee, Wyoming, and Orleans counties. If you or anyone you know needs help or information on their student loans, please have them call Neighborhood Legal Services at (716)847-0650 ext. 445 and leave a message to get assistance. Borrowers can also come into our Buffalo office at 237 Main Street, Suite 400 from 12-4 p.m. on Thursdays for our open clinic hours. “ While the Supreme Court struck down Biden’s plan to cancel up to $20,000 in student debt, this decision does not have any effect on the timing or availability of these new programs. ”

Millions of New Yorkers, including forty-five percent of those under age 35, have student loan debt. During the pandemic, most of these borrowers received a break on their federal loans because of the payment pause instituted by the US Department of Education as part of the public health emergency. This pause allowed borrowers to be free from payment without any interest accruing. This student loan payment pause ends in October with interest again accruing on loans beginning in September. This means that millions of borrowers with federal student loans must begin repaying their loans after more than a three- year payment pause. Many borrowers will not be prepared to resume this payment. There is good news. The Biden Administration’s Department of Education has created several new programs and policies to make managing student loan debt easier and more affordable. While the Supreme Court struck down Biden’s plan to cancel up to $20,000 in student debt, this decision does not have any effect on the timing or availability of these new programs. There are now many more affordable repayment plans as well as ways to discharge and obtain loan forgiveness. Navigating these new plans and programs is complicated but Neighborhood Legal Services, Inc. can help. Neighborhood Legal Services received a grant from the Community Service Society late last year that allows our trained staff attorneys and student debt counselors to assist anyone with student loan debt regardless of income or resources. Our trained debt counselors can help folks for FREE! We are part of the Education Debt Consumer Assistance program (EDCAP). EDCAP was created to help New Yorkers navigate the student loan repayment system and maintain their financial health. This program is funded by New York State. Neighborhood Legal Services can help you determine your best repayment plan and access loan forgiveness, cancellation, and discharge programs. We can also help you apply for loan consolidation, deferments,

AUTHORS: KAREN WELCH KRISTEN O’CONNOR MERCEDEES REES

12 | September/October 2023 | BAEC Bulletin Congratulations to our 2023 Federal Court Dinner Award Recipients!

Criminal Justice Act Award

Pro Bono Award

Kevin W. Spitler

Michael E. Rothenberg

Timothy E. Hiller

GET YOUR TICKETS FOR THE FEDERAL COURT DINNER TODAY!

CLICK TO PURCHASE TICKETS

BAEC Bulletin | September/October 2023 | 13

JOIN THE ASSIGNED COUNSEL PROGRAM Save Lives, Save Families.

In 1962, the Bar Association of Erie County created the Assigned Counsel Program to help those who cannot help themselves, who face steep odds against the power of the State, and who struggle with poverty, mental issues, helplessness, and dread. The attorneys in the Program save lives and save families. To join the panel, visit https://assigned.org/join-our-panel/ Congratulations to ACP Board Treasurer Ayoka Tucker, Esq., and Executive Director Michelle Parker , Esq. , who were honored with a 2023 Women Lamplighters in the Law award by the New York State Judicial Commission on Women in the Courts - Eighth Judicial District.

Questions? Please call 716.856.8804 or email: Michelle Parker Executive Director Chief Defender mparker@assigned.org

Kevin M. Stadelmaier First Deputy Defender Family Court Division kstadelmaier@legalaidbuffalo.org

Yvonne Vertlieb Second Deputy Defender Family Court Division yvertlieb@assigned.org

Erie County Bar Association Aid to Indigent Prisoners Society, Inc Assigned Counsel Program The Brisbane Building 403 Main Street, Suite 215 Buffalo, NY 14203 Phone: 716.856.8804 Fax: 716.856.0424 Website: www.assigned.org

A(rtificial) I(ntelligence) Created This, How Can I Protect It? BY ALEXANDER C. KACZMAREK, HARTER SECREST & EMERY, LLP 14 | September/October 2023 | BAEC Bulletin Cyber Law Artificial intelligence

from understanding AI’s black box and its potential impact on the legal system and practice of law as a whole, a more useful and immediate question is: How does copyright law treat the seemingly new content that generative AI “creates”? Copyright law protects original works of human authorship, including text, images, and music. In Burrow-Giles Lithographic Co. v. Sarony, the leading case on authorship, the Supreme Court repeatedly referred to “authors” as human 1 . The Ninth Circuit has held that authorship excludes “non-human spiritual beings” 2 and animals. In its current edition of the Compendium, the Copyright Office states, “to qualify as a work of ‘authorship’ 3 a work must be created by a human being” and that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” 4 Together, these sources have been synthesized by the Copyright Office to evidence the human authorship requirement as well-established and, accordingly, the Copyright Office excludes generative AI content from protection because of its non-human authorship. But what about the Copyright Office’s own stated exception for “works produced by a machine” with the “creative input or intervention from a human author?” 5 To enable the generative AI program to produce content, a human enters an idea for the content into a selected program, which determines the style, medium, and form of the output. The Copyright Office’s position is that this level of creative control isn’t enough. Instead, it likens the act of entering a prompt into a generative AI program as akin to providing instruction to a commissioned artist; where the final work is not created by the human providing instruction, but the recipient of the instruction. 6 Thus, the contribution by the human providing instruction is viewed as the unprotectable idea, not the protectable expression of that idea. So, where do we go from here? Is it possible to obtain

isn’t new, but what it can accomplish is. From science fiction novels to a search engine’s suggestion bar, artificial intelligence (“AI”) has developed from mere fantasy to a familiar part

of everyday life. The emergence

of “generative” AI pushes past automation and assistance toward creation and innovation. But, pulling back the curtain, what is that creation and innovation really made of, and can that creation be protected under copyright law? To answer the first half of our question, let’s turn to generative AI itself (the remainder of this paragraph was drafted by a generative AI program):

Generative AI operates by employing deep learning neural networks. These models are trained on vast datasets to learn patterns and relationships within text, images, or other data types. When prompted with input, the AI generates coherent and contextually relevant output by predicting the most likely next elements based on its training. It relies on probability distributions to generate diverse and creative content, making it useful for tasks like text generation, language translation, image synthesis, and more. The AI’s ability to generate human-like content stems from its capacity to capture intricate linguistic and contextual nuances from its training data.

The current version of generative AI is just the beginning of what it could and will be. Even when limiting the question to generative AI’s impact on a specific area of practice, there are countless questions and issues that arise. So, shifting our focus

BAEC Bulletin | September/October 2023 | 15

copyright protection for a generative AI created work? The answer is, it depends. Instead of developing a new test, the Copyright Office’s current position is to treat content created by generative AI the same as other unprotectable works. The determinative question becomes: Does the work contain sufficient human authorship in addition to the generative AI content to make it eligible for copyright protection? If the work consists entirely of generative AI content, it does not receive protection for the reasons discussed above. If the work consists of generative AI content and sufficient human authorship to support a copyright claim, then the human-authored portion of the work may be protected, and the generative AI content is excluded. The Copyright Office provides examples of such works by comparing a human author’s selection and arrangement of the generative AI content to compilations and a human author’s additional creative modifications to the generative AI content to derivative works. 7 For works combining human authorship with generative AI content, copyright protection is secured automatically when the work is created. A copyright registration for such work may be obtained by expressly excluding the generative AI content as part of the “Limitation of the Claim,” “Material Excluded” section of the application. The Copyright Office notes, that de minimis inclusion of generative

AI content and works where “use of an AI tool [does] not raise questions about human authorship” will not require this express disclaimer, but it is unclear how this exception will be applied in practice. 8 Using this article as an example, taking the position that it is a copyrightable work of human authorship that contains generative AI content, I would complete the copyright application as normal, but would provide a brief description of the portion of the second paragraph drafted by generative AI in the “Limitation of the Claim,” “Material Excluded” section. Generative AI has raised countless questions and issues that have the potential to shape law and policy going forward. For now, limiting our scope to the specific question of copyright protection and generative AI content, the path to protection and registration is relatively clear. Determining sufficient human authorship and other copyright requirements will remain a case-by-case inquiry, but a work may be copyrightable even if it contains some generative AI content. 1 111 U.S. 53, 56-58 (1884). 2 Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997). 3 Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018). 4 U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 313.2 (3d ed. 2021). 5 Id. 6 Copyright Registration Guidance for Works Containing AI-Generated Materials, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023). 7 Id. at 16,192-93 (citing 17 U.S.C. § 101; U.S. COPYRIGHT OFFICE, supra note 4, at § 507.1) (on compilations, stating “In the case of a compilation including AI-generated material, the computer-generated material will not be protected outside of the compilation” and, on derivative works, “where a new author modifies a preexisting work, the ‘new authorship . . . may be registered, provided that it contains a sufficient amount of original authorship’” and “defining ‘derivative work’ to include works ‘based upon one or more preexisting works’ where modifications to the work ‘which, as a whole, represent an original work of authorship”). 8 Copyright Registration Guidance for Works Containing AI-Generated Materials, 88 Fed. Reg. at 16,193.

Request for Public Comment on Amending 22 NYCRR § 202.70(b)(1) to Add a Reference to Technology in the Description of Commercial Cases The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the Commercial Division Advisory Council (CDAC), to amend the Rules of the Commercial Division, 22 NYCRR 202.70(b)(1), to include “technology transactions and/or other matters involving or arising out of technology” as an example of a commercial case that the Commercial Division has jurisdiction over. Click here to read the full request. Request for Public Comment on Amending Chief Administrative Judge Rule 126.3 to Increase the Per Diem Rates for Judges Assigned to an Off-Hours Arraignment Part The Administrative Board of the Courts is seeking public comment on a proposal to amend Rule 126.3 of the Chief Administrator (22 NYCRR § 126.3) concerning the per diem rates paid to town and village judges and justices and part-time city court judges assigned to an off-hours arraignment part. Click here to read the full request.

16 | September/October 2023 | BAEC Bulletin

Bar Association of Erie County Committees

www.eriebar.org/committees Our Committees are back in full swing! Click the link below to view the calendar and request to join a new Committee!

CLE ONDEMAND VIEW ANYWHERE, ANY TIME!

The Erie Institute of Law offers a robust library of pre-recorded CLE programs that are easy to access and watch on your time! Get the CLE credits you need wherever, whenever!

CLICK TO BROWSE PRE-RECORDED CLE LIBRARY

Questions? Contact Alicia Quebral at aquebral@eriebar.org or by telephone at 716.852.8687 x122 Watch for The Brief email update every Wednesday!

BAEC Bulletin | September/October 2023 | 17

Erie Institute of Law CLE programs are either being held via Zoom web conferencing or in person. For virtual programs, registrants will receive course material and Zoom link via email 1-2 days in advance of a program. Please note that some program details are not final as of publication time. For additional program details and to register, visit our website at www.eriebar.org/CLE. LIVE CLE PROGRAM CALENDAR

UPCOMING LIVE PROGRAMS Intellectual Property Protection & Enforcement: Protecting Your Most Valuable Assets | October 12, 2023 | 9-10:30am | WEBEx | 1.5 CLE Credits: 1.5 Skills (appropriate for Newly Admitted and Experienced Attorneys) The number of trolls that litigators and IP attorneys encounter is growing – and not just because Halloween is a few weeks away. Patent trolls (or, as they prefer, “non-practicing entities”) have become a nuisance to companies both big and small. What can you do when a patent troll demands payment? In this CLE, you will learn the basics about patents, how patent infringement lawsuits work, and strategies to deal with patent trolls from Hodgson Russ partners Nathaniel Lucek & Melissa Subjeck. Judicial Notice of Scientific Facts: Methodology & Challenges of the Replicability Crisis | October 16, 2023 | 12-2pm | Ceremonial Courtroom, Old County Hall | 1.5 credits: Skills (appropriate for Newly Admitted and Experienced Attorneys) Judicial notice is an underutilized tool that can save time and money by eliminating the need for expert witnesses, but is complicated by scientific replicability issues and the explosion in use of artificial intelligence (AI). Buffalo City Court Judge Rebecca Town & Max Tresmond of Tresmond & Tresmond LLP will explain how you can use it correctly and effectively in your cases. Lunch sponsored by Tresmond & Tresmond LLP. Success on Novel Issues in Litigation: Making the First Impression Last | October 25, 2023 | 12-1:30pm | Virtual via Zoom | 1.5 credits: 1.0 Skills, 0.5 Ethics (appropriate for Newly Admitted and Experienced Attorneys) Are you looking for novel strategies to be successful in your cases? In this CLE, the Hon. John Licata, Supervising Judge of the Supreme Court Civil Division for the 8th Judicial District, will be speaking on how to creatively and ethically be a better advocate for your clients using creative and novel approaches for successful outcomes, including using analyses that may have been used in other jurisdictions, but not often in the State of New York. Update on NYS Civil Practice & Procedure October 30, 2023 | 9am-12pm | BAEC Sun Room Auditorium | 3.0 credits: Areas of Professional Practice (appropriate for Newly Admitted and Experienced Attorneys) Join Brian Gwitt & Bill Savino, partners at Woods Oviatt Gilman, for our long-running series on the updates you need with a sense of humor! This seminar will cover salient developments in statutory and case law from 2022-2023 pertaining to civil practice in New York State, with a particular emphasis on decisions from the Fourth Department. The lectures and

course materials will cover a wide array of issues under CPLR, including jurisdiction, statute of limitations, service and dispositive motions. 69th Tax Institute | December 1, 2023 | 8am-4:30pm | Buffalo Marriott Niagara or virtual via Zoom | 7.0 credits: Areas of Professional Practice (appropriate for Newly Admitted and Experienced Attorneys) Early Bird registration ends November 24, 2023! 2023 marks the 69th anniversary of the Tax Institute, offered by the University at Buffalo School of Management, the New York Society of Certified Public Accountants and the Erie Institute of Law. This full-day seminar provides a means of reviewing and clarifying provisions and patterns of federal tax laws. The Tax Institute continues to provide practitioners with cutting-edge information regarding the substance and administration of tax laws. Topics covered include a federal tax update, employer retention credits, Inflation Reduction Act Tax Credits, dealing with changes at the IRS. NYS Sales Tax audit and enforcement issues, and a NYS tax update. The New Salary Transparency Law: All You Need to Know | 1.0 CLE credit: Skills (appropriate for Experienced Attorneys only in this format) | OnDemand | $40 members | Promo Code: member2017 New York’s new salary transparency law went into effect September 17th, 2023. The new law requires all employers with four or more employees to disclose pay ranges and job duties for job openings (including transfers and promotions). This one-hour CLE, presented by the Labor Law Committee, will review the basic requirements, immediate implications under the new law, and ways to address the new requirements through policy. Who should watch: Employment lawyers, managing partners, HR professionals, employment agency leaders. Cybersecurity, Privacy & Data Protection for Lawyers 1.5 CLE credits: 1.0 Cybersecurity, Privacy & Data Protection - Ethics, 0.5 Cybersecurity - General (appropriate for Newly Admitted Attorneys and Experienced Attorneys) | OnDemand | $45 Members | Promo Code: member2017 Effective July 1, 2023, New York Attorneys must complete 1.0 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of their CLE requirement. This CLE will address: cybersecurity, privacy and data protections issues, including impact on the legal industry, ethical obligations, legal and threat landscape, controls, regulatory landscape, and other practical matters related to data security and privacy. Attendees will walk away with a better understanding of their legal and ethical obligations and the current threats facing the industry. ONDEMAND PROGRAMS

CLICK TO VIEW CLE DETAILS AND TO REGISTER CLICK HERE TO PURCHASE AN ONDEMAND PROGRAM TODAY!

18 | September/October 2023 | BAEC Bulletin BAR ASSOCIATION OF ERIE COUNTY UPCOMING EVENTS

Young Lawyers Committee Co-Chairs

Catherine McCulle The Law Office of Lindy Korn cmcculle@lkorn-law.com

Steven Salcedo Phillips Lytle LLP SSalcedo@phillipslytle.com

YLC Executive Committee

• Catherine McCulle

• Shane Greene NYS Supreme Court, Appellate Division, Fourth Department • Colin Knoer The Knoer Group • Ifeoluwa M. Popoola Erie County Assistant County Attorney • Caroline Russ Liberty Mutual Group

The Law Office of Lindy Korn

• Steven Salcedo Phillips Lytle LLP • Carolyn DeVaughn Gross Shuman P.C. • Katelynn Johnson Kate Johnson Law

YOUNG LAWYERS COMMITTEE 2023-2024 SCHEDULE MONTHLY MEETINGS Fourth Wednesday of every month. 12:15 p.m. in person (unless otherwise indicated), location TBD, speakers TBD, no meeting in December.

EVENING WITH THE JUDICIARY November 9th | 6 p.m. - 8 p.m. | Templeton Landing YOUNG LAWYERS COMMITTEE TOY DRIVE December LIFE AFTER LAW SCHOOL March 8 & March 14, 2024 | Phillips Lytle, One Canalside, Buffalo, NY

PLEASE WATCH OUR WEEKLY PUBLICATIONS FOR ADDITIONAL DETAILS ON OUR PROGRAMS

20 | September/October 2023 | BAEC Bulletin

The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the New York State Bar Association (NYSBA) and the New York City Bar Association (City Bar) (Exhibit A – Joint Letter), to amend Section 202.12 of the Uniform Rules to “require attorneys to discuss discovery issues, insurance coverage and ADR with their clients and their adversaries before the preliminary conference” (Exhibit B –Joint Report on Rule 202.12, p. 1). The goal of the rule amendment is to make the preliminary conference processmore efficient. If an agreement can be reached prior to the preliminary conference in compliance with the amended rule, then the preliminary conference can be handled by a so-ordered stipulation. Where an agreement is not reached, the Joint Report concludes that the attorneys would, nevertheless, come to a preliminary conference better prepared to discuss such issues if the proposed amendments were adopted. Efficiency and clarity are also promoted through explicitly empowering the Court to require written submissions in advance of a preliminary conference that would present the parties’ views on any disagreements. The Joint Report notes that a common complaint about preliminary conferences is that they are “inefficient, pro forma conferences, often attended by junior or contract lawyers not familiar with the details of the case.” (Ex. B, p. 2.) Instead of eliminating preliminary conferences, the proposed rule attempts to make these conferences more meaningful through an expanded mandatory meet-and-confer process. The Joint Report states that the enhanced attorney preparation and collaboration before a preliminary conference and the active judicial intervention at such conferences (fostered by the rule amendment) will focus and streamline litigation overall. The proposed rule amendment also encourages the use of virtual preliminary conferences. The proposed revisions to the rule are reproduced in Exhibit C. Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: David Nocenti, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 10th Fl., New York, New York, 10004. Comments must be received no later than October 31, 2023. All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration. Request for Public Comment on Amending 22 NYCRR § 202.12 Concerning Preliminary Conferences Public Notice for Reappointment of Incumbent Magistrate Judge The current term of office of United States Magistrate Judge H. Kenneth Schroeder, Jr. at the United States District Court, Western District of New York, Buffalo, New York, is due to expire on May 31, 2024. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term. The duties of a magistrate judge in this court include the following: (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evidentiary proceedings on delegation from a district judge; and (4) trial and disposition of civil cases upon consent of the litigants. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the Court and should be directed to Merit Selection Panel Chairperson, c/o Office of the Clerk, United States District Court, 2 Niagara Square, Buffalo, NY 14202. Comments must be received by October 11, 2023.

BY KEVIN M. HOGAN AND SEAN C. MCPHEE Western District Case Notes

BAEC Bulletin | September/October 2023 | 21

Agreements to Arbitrate In Oldacre v. ECP-PF CT Operations, 22-cv-577-JLS-HKS (May 15, 2023), plaintiff commenced a putative class action against defendant—an operator of fitness centers—claiming that defendant violated New York Labor Law § 191 by paying him, and other manual workers, on a bi-weekly rather than weekly basis. Defendant moved to compel arbitration of the named plaintiff’s claim based on an arbitration clause contained in the gym membership agreement that it offers as a “perk” to its employees. Plaintiff opposed, arguing that the arbitration clause in the gym membership agreement did not cover employment disputes, and that defendant failed to show that plaintiff agreed to arbitrate claims related to his employment. In response, defendant argued that the issue of arbitrability had to be decided by an arbitrator because the agreement delegated that authority to the arbitrator, and plaintiff had not challenged the enforceability of the delegation provision. Observing first that there is a general presumption that the issue of arbitrability should be resolved by the courts, the Court then noted that the presumption can be overcome if the parties have “clearly and unmistakably” delegated that authority to an arbitrator. In that scenario, a court may not override the contract, and has no power to decide the arbitrability issue “even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.” The Court then found that the plain language of the delegation provision showed that plaintiff had clearly and unmistakably delegated questions of arbitrability to the arbitrator. Finally, because plaintiff did not challenge the delegation provision itself, defendants’ motion to compel arbitration was granted since a challenge to another provision of the arbitration clause in which the delegation provision is found does not prevent a court from enforcing a delegation provision. Joinder of Non-Diverse Defendants In Kelly v. Snap-On Inc., 21-cv-729-LJV (May 22, 2023), plaintiff was injured when he was struck by a vehicle driven by one defendant who plaintiff alleged was an agent for other corporate defendants. Plaintiff commenced two actions, first an action against one corporate defendant alleging that, as owner of the vehicle, it was liable for the driver’s negligence. Plaintiff then commenced a second action against two related corporate defendants based on claims of negligent hiring and training and a theory of respondent superior. Before plaintiff could move to consolidate the two actions, defendants in the second action removed it to federal court based on complete diversity. Plaintiff moved for leave to amend the complaint to add the driver, whose citizenship would defeat diversity, and then to remand the lawsuit back to state court. The Court granted both motions, ruling first that, because the allegations against the driver and the corporate defendants arose

KEVIN M. HOGAN Managing Partner Phillips Lytle LLP

SEAN C. MCPHEE Partner Phillips Lytle LLP

22 | September/October 2023 | BAEC Bulletin

Motion to Stay (First-Filed Rule) In Nelson v. G.Skill USA, Inc., 22-cv-6175-FPG (May 8, 2023), a putative class action brought under the consumer protection laws of multiple States based on defendant’s allegedly misleading advertising, defendant moved to stay the action pending resolution of a parallel putative class action against it for similar claims, which is pending in the Central District of California. In support of its motion, defendant argued that the California action was filed first, and both actions involve substantially the same issues, so judicial economy would be promoted by staying this later-filed suit. Plaintiff opposed, primarily arguing that the California court may not be able to exercise personal jurisdiction over defendant for the New York plaintiffs’ claims, such that rulings in the California action would not have preclusive effect on the issues and claims in this action. In deciding the motion, the Court first noted that the Second Circuit has long followed the “first-filed rule” in deciding whether a case should be stayed or dismissed in favor of a case pending in another federal court and, under that rule, where two actions involve substantially the same issues, the first should have priority unless therer are special circumstances which justify giving priority to the second. The Court then found that no such special circumstances existed, rejecting as “unpersuasive” plaintiff’s suggestion that the California court might lack jurisdiction over New York plaintiffs’ claims asserted in the California action. This is because, while the California court might lack “specific jurisdiction” over defendant for claims occurring in New York, defendant is a California corporation with its principal place of business there, meaning it is subject to “general jurisdiction” in California for any claim against it, even if all the incidents underlying the claim occurred in a different State. And because plaintiff offered no basis for departing from the first-filed rule, defendant’s motion to stay the action was granted. Employment Discrimination In Weiss v. Premier Technologies, 22-cv-6349-DGL (May 9, 2023), plaintiff sued two defendants for employment discrimination under state and federal law. Plaintiff had worked as a sales representative for one defendant, who in turn was an official retailer for the second defendant. The second defendant moved to “...the allegations were merely conclusory, hypothetical statements regarding a purportedly fraudulent scheme, and failed to allege actual instances where the scheme occurred...”

out of the same transaction or occurrence, joinder of the driver was permissible under Rule 20(a). The Court disagreed with defendants that, in order to join the driver, plaintiff also had to satisfy the standard for amending a complaint under Rule 15 (and, in turn, a motion to dismiss under Rule 12(b)(6)). Turning to whether joinder also would comport with fundamental fairness, the Court concluded it did because plaintiff had waited only two months after removal to seek to join the driver, no prejudice would result to defendants, denying the joinder would risk multiple litigations in state and federal court, and plaintiff’s motivation for the joinder was facially not impermissible. Finding that the four factors relevant to fundamental fairness weighed in favor of plaintiff, the Court granted the motion to join the driver and remanded the lawsuit to state court. Motion for Stay Pending Appeal in Separate Action In City of Buffalo v. Smith & Wesson Brands, Inc., 23-cv-66-FPG (June 8, 2023), the Cities of Buffalo and Rochester brought claims against various firearm manufacturers and distributors seeking to hold them liable for allegedly causing gun violence in their communities. Because the constitutionality of the statute underlying one of plaintiffs’ claims is currently at issue in a separate litigation pending before the Second Circuit, defendants sought a stay of proceedings pending the Second Circuit’s determination in that separate litigation, which plaintiffs opposed. Noting that it has authority to stay proceedings pending disposition of another case that could affect the outcome, the Court then considered the five-factor test governing the analysis and concluded that a stay was warranted, primarily because the Second Circuit’s decision in the separate litigation will likely provide helpful guidance on the constitutionality and applicability of the statute underlying plaintiffs’ central claim in this litigation. Further, the Court found that it would be an inefficient use of the time and resources of the Court and parties to “tread the same ground” shortly in advance of a binding decision from the Second Circuit that may significantly impact this litigation. Finally, the Court observed that the only potentially countervailing factor is prejudice to plaintiffs, but because they were seeking only monetary—and not equitable—relief for their claims, plaintiffs’ assertion that a delay of several months would cause “extreme prejudice” was “belied by the kind of relief they have chosen to seek” and could be remedied by pre-judgment interest. As a result, defendants’ motion was granted, and the matter was stayed pending the Second Circuit’s resolution of the separate litigation.

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