Volume 61, No. 3
Bar Association of Erie County Bulletin NOVEMBER/DECEMBER 2021 | Volume 61 | No. 3
Introducing the BAEC Member Assistance Program Page 7 Showing Solidarity and Support for Better Mental Health BETTER TOGETHER WE ARE
2 | November/December 2021 | BAEC Bulletin
Bar Association of Erie County Bulletin Table of Contents The Features
5 6 7
Letter from the President We Are Better Together
BAEC and ECBF Unveil Membership Assistance Program A Message from Foundation President Michael Perley The 2021-2022 Foundation Campaign Has Begun! Legends of Law: The 2021 Annual Awards Recap In The Public Service: Neighborhood Legal Services
8 9 11 14 15 17 18 21 22 23 26 32 10 12 25 29 31 35 37 39 41 2 3
Lawyers for Learning Update Thank You From St. Luke’s Volunteer Lawyer’s Project’s 2021 Champions for Justice Award Winners Courts Seeking Comment on NYSCEF Report and Mandatory E-Filing Amendment Do You Need a Paralegal? Nominations Sought for Bar Association Leaders Using Learned Treatises to Examine Expert Witnesses Hilary Banker to Be Awarded 2021 Defense Trial Lawyer of the Year In Every Issue
Upcoming CLE Programs BAEC Sponsors Bench and Bar in The News BAEC New Members In Memoriam CLE OnDemand Featured Programs Contributions to the Foundation BAEC Life Members and Contributing Members Western District Case Notes Classifieds Bulletin Advertisement Index
Bar Association of Erie County President Vice President Treasurer Hugh M. Russ, III Jill K. Bond Kelley A. Omel
Gayle T. Murphy Anne M. Noble Greg Hirtzel Board of Directors
Deputy Treasurer Executive Director Director of Marketing & Communications, Editor of the Bulletin
Robert C. Brucato, Jr., Colleen Curtin Gable, Krista Gottlieb, Karen Richardson, Kara M. Addelman, Samuel A. Alba, Peter J. Crotty, Jennifer Metzger Kimura, Kelly Barrett Sarama, Anne K. Bowling, Jamila A. Lee, Sharon Nosenchuck, Stephanie A. Saunders
BAEC Bulletin | November/December 2021 | 3
LIVE CLE PROGRAM CALENDAR
To accommodate public health concerns, Erie Institute of Law CLE programs are virtual unless otherwise noted. Access details will be sent to CLE registrants after registering. 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.
Evictions and Foreclosures During COVID: What Every Practitioner Needs to Know Presented by the Human Rights and Real Property Law Committees December 7, 2021 9:00am – 10:30am - Part One – The Eviction Moratorium and ERAP 10:45am-12:15pm - Part Two – Update on Current Foreclosure Law 1.5 CLE credits per session: Areas of Professional Practice Part One Only - $40 BAEC Member, $60 Non-Member, $30 Paralegal Part Two Only - $40 BAEC Member, $60 Non-Member, $30 Paralegal Both Parts - $75 BAEC Member, $110 Non-Member, $55 Paralegal HR for Solo and Small Firms Presented by the Solo and Small Firm Practice Law Committee December 14, 2021 • 12-1pm 1.0 CLE credit: Areas of Professional Practice $25 BAEC Member, $30 Non-Member
Preventing Patent Pitfalls: What Every Practitioner Should Know About Patent Law December 15, 2021 • 12-1pm 1.0 CLE credit: 0.5 Areas of Professional Practice, 0.5 Skills $25 BAEC Member, $30 Non-Member Doing No Harm: Why Cultural Competency Matters Presented by the Diversity and Inclusion Committee December 16, 2021 • 1-2pm 1.0 CLE credit: Diversity, Inclusion & Elimination of Bias $25 BAEC Member, $30 Non-Member
CLICK TO VIEW CLE DETAILS AND TO REGISTER
ON-DEMAND OPTIONS AVAILABLE: VIEW ANYWHERE, ANY TIME! The Erie Institute of Law offers accessible and convenient OnDemand options. Visit www.eriebar.org/CLE to see our full catalogue. Questions? Contact Celeste Walsh at cwalsh@eriebar.org or by telephone at 716.852.8687.
4 | November/December 2021 | BAEC Bulletin
Bar Association of Erie County SPONSORS These organizations have partnered with the BAEC for 2021 We are tremendously grateful for their support and generosity!
2021 PRESENTING SPONSOR
2021 THE WEEKLY PRESENTING SPONSOR
2021 CYBER CHAMPIONS
BAEC Bulletin | November/December 2021 | 5
Letter from the President
With this letter, I intend to convey some random thoughts, along with some really good news. Perhaps nurtured by the pandemic, my latest trick involves falling asleep on the couch (inevitably before the climax of the show that I am watching) and then waking up in the middle of the night — wide awake with my mind racing. Here is some of what I have been thinking late at night: Since my last letter to you, we lost a true legend, Richard Griffin. While we overuse words like legend and hero, Dick merits that treatment. Dick’s funeral was inspiring, and he received tributes from Judge Jerry McCarthy and each of his four children. Dick was a great lawyer and mediator, and he loved his work, as the tributes recounted. Yet Dick could also be incredibly annoying. Conventional wisdom says that a mediator is not an advocate. Wrong. A good mediator is an advocate for a fair settlement. A good mediator convinces you to do the right thing even when you don’t want to do it. As a mediator, Dick almost never gave up. He begged and pleaded and cajoled and persuaded you — he annoyed you — until you settled. In this sense, as well, he was legendary. Like a judge exposing a critical weakness in my case during oral argument of an appeal, people frequently ask me how am I “enjoying” my Bar Presidency. I don’t answer the question well. I usually say something like, “Enjoy isn’t exactly the right word,” and I make some reference to “the pandemic having taken most of the fun out of it.” What I don’t answer, and what I should say as if it were the perfect answer that comes to mind on the drive back from Rochester (or after you’ve signed off on Microsoft Teams), is that I am really feeling “engaged.” We have an exceptional association, with some really committed members, doing very important work, and ours is a noble profession. Sticking my nose into everything happening has been incredibly fulfilling. Thank you for this opportunity. And now for the good news. I don’t know about you, but I feel exhausted all the time. I have some health issues that might contribute, but they don’t fully explain the weariness I experience daily. My first letter to you heralded the anticipated end of the pandemic, but the pandemic drags on, we remain committed to certain protocols that limit our interaction and activities, and — perhaps most disturbingly — the definitive end is not in sight. I am just plain tired. On taking this office, my original plan involved connecting with as many of you as possible — in person. What do they say about the best laid plans?
HUGH M. RUSS, III President Bar Association of Erie County
I had a younger lawyer come into my office this week, and we agreed
6 | November/December 2021 | BAEC Bulletin to remove our masks. (Even that seemingly small gesture felt liberating.) Relating an ongoing discovery dispute he was having with a difficult lawyer, he asked me a disturbing question, “what did you guys do before email?” Without hesitation, I answered, “we talked to each other.” The pandemic has only exacerbated a disturbing trend we had already embraced — hiding behind our computers. I relate these two anecdotes not to further depress you, but rather to announce an important initiative the Bar Association is undertaking for you. At our last meeting, your board approved the joint plan of the Bar Association and the Bar Foundation to provide as a benefit a member assistance program (MAP) to all members. The hallmark of the MAP is rapid and easy access to mental health counseling and resources. In a survey we conducted earlier this year, we learned that many of our members do not have access to an employee assistance program (EAP). We also learned that people are feeling more isolated and overwhelmed than ever. We haven’t felt distress this
widespread since September 11.
While many of our firms do offer EAPs, more do not. Smaller firms and solo practitioners, in particular, lack access to EAPs. Even our members whose firms provide EAPs will benefit from the Bar Association’s MAP. Our bigger firms that offer EAP programs report that those programs are underutilized, even in this time of great need. Despite strict confidentiality, lawyers worry that their firms will find out about their participation, and they fear stigma, or worse. The Bar Association is uniquely positioned to offer this service to our members without a potential for judgment. In a time when every talking head bemoans a decline in wellness, we are taking active steps to promote wellness. •
We are Better Together! The Bar Association of Erie County and the Erie County Bar Foundation have teamed up to promote the importance of physical and mental wellbeing during this holiday season.
Now, more than ever, it’s important for the people of the legal community to know that they’re not alone, that it’s ok to ask for help, and that we are truly better together. We have green bracelets available for everyone to wear that state “Better Together,” to communicate to our colleagues, friends, and family that no one is alone. Together, we can end the stigma surrounding mental health and foster an environment of acceptance, honesty, and support throughout the WNY legal community. If you haven’t gotten a bracelet yet, stop by the BAEC office on 438 Main St., 6th Floor, Buffalo, to get yours today! •
BAEC Bulletin | November/December 2021 | 7
Bar Association and Foundation Unveil Member Assistance Program With the wellbeing of its lawyers a top priority, the
deeply committed and offer true expertise in mental health.” Russ continues, “We all need and want
BAEC and ECBF are pleased to add a Member Assistance Program (“MAP”) to the practical resources now offered to our lawyers navigating the challenging business of practicing law. The hallmark of this program is immediate confidential access to mental health counseling. The MAP will complement and broaden the groundbreaking wellbeing work of the ECBF and the BAEC’s Lawyers Helping Lawyers Program and Depression Support Group. All of these programs are designed to keep lawyers at their professional best and destigmatize pursuing help for mental health. The MAP will be operated in partnership with Child & Family Services. The MAP is easy to access and free for BAEC members and those in their household. Confidential counseling can be sought for job stress, changes or loss, family matters, bereavement, relationship conflicts, substance use disorder, anxiety, depression or any other matter that affects mental health. With national and state conversation increasingly drawing attention to a legal profession in crisis, this program will help combat isolation and the challenges of finding help when the road is more challenging than planned for BAEC members or their families. BAEC member lawyers and their household members will have access to resilience building interventions and connections to community resources that support mental health and well-being with privacy and speed.
peace of mind. MAP resources along with our other programs are real solutions when we need help. Don’t go it alone.” The Foundation has been dedicated to assisting lawyers since its inception in 1957. Mike Perley adds, “We are excited to include MAP in our repertoire of confidential resources available to attorneys and their families for whatever issues they may face. We are also deeply committed to removing the stigma associated with getting any form of help. I encourage every member to advocate for and use this program. It is good for our members, clients and the profession to take care of our mental health.” • Online Presentations and Panel Discussions on topics responsive to current, local needs or national trends that are important to BAEC members. • Work-life Consultations regarding Financial, Nutrition, Child Care, Elder Care, Conflict Resolution, and Smoking Cessation Child & Family Services, EAP Director, Julie Loesch, Esq. and Assistant Director, Megan Andrews, LCSW-R will work with the BAEC and ECBF to facilitate this new service to the members of the Bar Association. [PICTURE HERE] Key Features of the Member Assistance Program: • Counseling and Coaching • Education and Resources The Member Assistance Program is active and available to BAEC members effective December 15, 2021. Members will receive additional information and resources on MAP throughout December and the new year. Contact Anne Noble at 716.852.1777 if you or someone in your household needs assistance immediately. The BAEC also has two Committees available to our members for ongoing support and assistance - Lawyers Helping Lawyers and the Committee to Support Lawyers With Depression. Learn more at www.eriebar.org/lawyerwellbeing. •
Building on the work of bar leaders in recent years, President Hugh M. Russ, III, and Foundation President Michael F. Perley spearheaded making access to a MAP a reality, with each Board approving the program and playing a key role in its implementation and roll out. The decision followed a wellbeing survey conducted by the BAEC which showed that the vast majority of our membership saw a benefit to offering a MAP.
RUSS
Russ states, “There is no doubt our membership wants to go beyond talking about wellbeing and do something that makes us all better off. Counseling can help and I encourage my colleagues to use this program’s resources. We are fortunate to have C&FS in our backyard and they are PERLEY
8 | November/December 2021 | BAEC Bulletin FROM THE ERIE COUNTY BAR FOUNDATION
In The Company of Friends You have more friends that you know. You really do! How can I be so confident in that statement? The answer is simple: I am a member of the Buffalo legal community. Ordinarily, were some to ask you to name your friends, you would think of your childhood friends, schoolmates, colleagues, and social acquaintances. However large your personal number is, it does not compare to the thousands of friends you have in our local practice. This message was brought home to me recently when I struck up a conversation with an attorney who had just returned to Buffalo from a practice in the mid-Atlantic area. That attorney was unsure how her return would be received after having been elsewhere for years. She was, of course, welcomed back with open arms. If that response surprised her, it should not have. Camaraderie has been, and remains, a hallmark of our local bar. No one knows how or where this sense of community began. We only know that it exists and has been recognized publicly for years. Whatever its origin, we also know that 64 years ago, the pillars of the Buffalo legal community, people who have become household names such as Edward Kavinoky and Robert Fernbach, and others, important stalwarts of the Buffalo legal community, including Sebastian Bellomo, John Heffernan, Peter Murrett, Jr., and Maryann Saccomando Freedman collaborated to establish what is now the Erie County Bar Foundation. Together they created the vehicle that mobilized the public community and allowed it to act privately and confidentially, assisting attorneys in need. If you think about it for a moment, these founders expanded their advocacy for others, from their clients to their colleagues. It was, and is today, an expression of friendship. All of this brings me to a green bracelet. My friend, Hugh Russ, BAEC current President, and I have been committed this year to promote attorney wellness. Unfortunately, the statistics are alarming. Essentially, the incidence of mental health challenges and other related issues among attorneys is roughly twice the national average, across the board. Together Hugh and I, though our respective boards, purchased green elastic bracelets imprinted with the phrase “Better Together.” Many of these bracelets currently reside at Bar Association headquarters, but that should not be their permanent home. One recently moved to my right arm where it can be found every day. I have personally committed to wear though the end of this year and am likely to continue to do so indefinitely. It is a reminder to me that my health matters – as does the health
MICHAEL F. PERLEY President Erie County Bar Foundation
BAEC Bulletin | November/December 2021 | 9
of my friends and colleagues -- and perhaps more importantly, that I have the privilege of practicing in a close knit and caring legal community. Also, that , as a member of that community I have the opportunity to help others in need. I invite all of you to join in this enterprise; to care for yourself; to look out for your colleagues; to realize that you reside in the company of friends. Somewhere near this letter you will see the Foundation logo. Inside are the same words with which I ended the last paragraph, “THE COMPANY OF FRIENDS.” When you read that, consider how large
that company really is.
For the past 64 years the Foundation has lived within that “company.” Its message remains consistent: WE’RE HERE! Let us know if we can help. •
Erie County Bar Foundation 2021-2022 FOUNDATION CAMPAIGN
The Foundation needs your help. We are funded almost exclusively by private donations from the legal community. Let’s come together to help our colleagues in their time of need. The Foundation’s mission is to assist lawyers and their families in times of crisis. The Foundation steps in when attorneys face illness, disability, job loss, mental health issues, substance use disorder, or financial hardship. Donate today.
eriebar.org/campaign
10 | November 2021 | BAEC Bulletin Bench and Bar In the News If you are a BAEC member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice and high resolution photo (300 dpi) to Greg Hirtzel at ghirtzel@eriebar.org. Talks, speeches (unless they are of international stature), CLE presentations, and political announcements are not accepted. HOW TO PLACE A BENCH & BAR ANNOUNCEMENT The Coppola Firm is honored to announce the addition of Steven H. Polowitz, Esq. who brings 40 years of experience to the firm, with a practice that is largely focused on commercial real estate, charter schools, and not-for-profit and community/affordable housing developments. Throughout his career, Mr. Polowitz has represented a variety of builders, developers, owners/landlords, property management and not-for-profit community development clients, handling multi-million-dollar purchase, loan, sale, tax-deferred exchange and finance transactions involving multi-family, office and multi-use properties and affordable and low-to- moderate-income housing projects. Mr. Polowitz has represented a number of federally tax-exempt, not- for-profit community development corporations and charter schools and is intimately familiar with not-for- profit corporation law and governance as well as charter school law and regulations. The law firm of Lipsitz Green Scime Cambria LLP is pleased to announce that Robert M. Corp has joined the firm as a Junior Partner. Robert Corp has extensive experience as a litigator and focuses his practice on plaintiff’s personal injury litigation as well as commercial litigation. Mr. Corp’s clients range from Fortune 100 companies in high-stakes ligation matters to victims of catastrophic injuries fighting to recover damages from negligent parties. Prior to joining Lipsitz Green Scime Cambria, Mr. Corp worked at one of the largest global law firms, where he served as a litigator for some of the world’s most high-profile organizations. Mr. Corp received a J.D. from Columbia Law School in 2010 and a B.S., magna cum laude, from The George Washington University in 2007. He is admitted to practice in New York State, Connecticut, New York State Court of Appeals, several districts of United States District Court, and the United States Supreme Court. Nicole Mastrocinque , Associate, has joined Barclay Damon’s Commercial Litigation and Construction & Surety Practice Areas. Mastrocinque concentrates her practice on advising and representing private and public entities in construction and commercial matters. She has gained experience through internships and clerkships where she helped with a range of litigation matters.
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BAEC Bulletin | November 2021 | 11 Legal Community Celebrates Our Legends of Law
On October 27, members of the BAEC came together at the Transit Drive-In Theatre to celebrate our 2021 Annual Award recipients - our Legends of Law! Thank you to everyone for coming out, tailgating with us, and honoring these incredible men and women who have contributed so much to this community.
DIDN’T GET A CHANCE TO ATTEND? Watch the awards presentation on YouTube!
https://youtu.be/qm1Z8t581eA
12 | November/December 2021 | BAEC Bulletin Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members:
Geoffrey Adonu Andoni Garza Austrich Madison J. Butler Cody Ciura Brian J. Cohen Robert Corp Cristian Cruzado Victoria Dailey Donell L. Gibson, Jr. MacKenie Hamill Arrianna Hart
Riley Laese Deja L. Middlebrook Louis Mussari Noah Neale Timothy Noonan, Jr. Matthew E. Potenza Paige Roseman Emily Sipes Amber Ann Small Andrew Steinhaus Andrea Tarshus
Personal Injury Case Mediation & Arbitration TWO VIEWS, ONE RESOLUTION • 40 years civil litigation experience
“Let me help you bring the opposing sides in your personal injury case together to create a favorable resolution for you and your client.”
• Trained Mediator, 8th Judicial District Recognized Program • Experienced representing both plaintiffs and defendants • Full mediation facility provided • Flexible scheduling, day or evening
Joel B. Schechter, Esq.
Bennett Schechter Arcuri & Will, LLP 701 Seneca Street, Suite 609 Buffalo, NY • (716) 242-8103 jschechter@bsawlaw.com
BAEC Bulletin | November/December 2021 | 13
“To be a good lawyer, one has to be a healthy lawyer . ”
-National Task Force on Lawyer Well-being
Tip the scales toward wellness. Let the C&FS Employee Assistance Program partner with you in making the mental well-being of your lawyers a top priority. • 24/7 access to licensed mental health professionals • Private, solution-focused counseling and coaching • A comprehensive wellness benefit for your employees
Contact Julie M. Loesch, Esq., Director, at jloesch@cfsbny.org or browse our website at https://eap.cfsbny.org/. EAP Employee Assistance Program
14 | November/December 2021 | BAEC Bulletin In the Public Service
WESTERN NEW YORK LAW CENTER
The Tools Needed to Weather The Storm The Looming Mortgage Foreclosure Crisis in New York State New York homeowners continue to suffer gravely from the effects of the global Coronavirus pandemic. Recent Census Bureau data reveals that as of mid-September, 16.3 percent of New Yorkers were experiencing a loss of employment income. The rate of mortgage delinquencies is currently higher than during the Great Recession with approximately 6.5 percent of New York homeowners behind on their mortgages. Looking at the number of Black homeowners behind on their mortgages, the rate increases to 9.1 percent. These numbers are alarming, considering that at the height of the Great Recession in 2009, the mortgage delinquency rate in New York State was around 3.8 percent. Of New York homeowners currently delinquent on their mortgage payments, 16.6 percent are more than four months delinquent. A foreclosure is typically commenced after four missed payments. We are currently approaching the end of New York State’s foreclosure moratorium, set to expire on January 15, 2022. The moratorium was put in place on December 24, 2020 through the NYS COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. Initially, it allowed a homeowner to submit a COVID-19 Hardship Declaration form, self- attesting to a hardship caused by the pandemic, which would result in a stay of all court proceedings through May 1, 2021. The stay of proceedings was extended several times. In the most recent extension passed by the New York State legislature on September 1, 2021, the law was amended to allow foreclosing plaintiffs to request a hearing to challenge the homeowner’s assertion of a COVID-19 hardship. This was in response to the United States Supreme Court ruling in Pantelis Chrysafis, et. al. v. Lawrence K. Marks, decided on August 12, 2021. This case was a challenge to New York State’s eviction moratorium and the Court ruled that it was a violation of a landlord’s due process rights to impose a stay at the request of a tenant without an opportunity for the landlord to be heard. In addition to the coming expiration of the moratorium, many homeowners have reached the limit of their allowed forbearance periods with their mortgage servicers. The federal CARES Act required that servicers of federally backed loans offer forbearance plans to homeowners where payments would be suspended for a period of time if a homeowner was experiencing a COVID-19 related hardship. New York State Banking Law 9-X required that all mortgage servicers subject to the oversight of the New York State Department of Financial Services also offer homeowners forbearance plans upon an assertion of a COVID-19 hardship. As a result of these two laws, most homeowners in New York had a forbearance option available to them if they were experiencing a COVID-19 hardship. Many homeowners are now reaching the maximum allowable time for forbearance and will have to apply with their mortgage servicer for a more permanent means of resolving the delinquency. Some of these
AMY GATHINGS Supervising Attorney WNYLC
BAEC Bulletin | November/December 2021 | 15
homeowners may end up in foreclosure if they are not
that allow servicers to offer mortgage modifications without extensive underwriting as long as certain criteria are met, including the requirement to lower the monthly mortgage payment. These are positive changes that will help more homeowners get help faster and avoid the application delays of the past where a homeowner might be applying for upwards of a year or two for a mortgage modification. However, advocates have already noted that mortgage servicers are behind the ball when it comes to understanding and implementing these options. Without an advocate ensuring that a mortgage servicer is following the program guidelines for these various programs there is a chance that the mortgage servicer will make a mistake in the review of the options available and either offer the wrong options, or improperly deny a homeowner for any options. This is why it is so critical for New York State to maintain and expand upon its existing Homeowner Protection Program (HOPP) network of free housing counseling and legal service foreclosure advocates. Without these advocates the coming crisis will be far more devastating to our communities. Without the dedication of resources to the foreclosure prevention efforts needed to deal with the coming crisis, a vast number of homeowners will be needlessly displaced, the number of vacant and abandoned homes in New York will increase, and our communities, especially communities of color, will be devastated for years to come. Now more than ever it is critical to keep families in their homes. As housing prices soar and the rental market becomes increasingly unaffordable, the risk of displacement is ever more grave. Not only are rental prices exceedingly expensive, the availability of rental units is slim due to the effects of the pandemic on landlords and tenants. It is crucial for homeowners facing mortgage delinquency to reach out for help as early as possible. Help can be found by contacting the Western New York Law Center at 716- 855-0203 x 118 or the Homeowner Protection Program at (855) HOME-456 or visit homeownerhelpny.com. About the Author Amy Gathings attended UB Law School and graduated in 2009. She has been with the Western New York Law Center since 2011 where she currently serves as the Supervising Attorney of the Foreclosure Prevention Department.
“It is critical to the stability of communities throughout the State of New York that homeowners have access to free foreclosure prevention services.”
aware of their options or how to navigate this complicated process. It is also important to note that a forbearance suspends and does not forgive payments. This means that homeowners who have been on forbearance for eighteen months and who may have been behind prior to their forbearance now have to find a way to resolve all the arrears, including those that accumulated during the forbearance period. These trends point to a looming mortgage foreclosure crisis coming to a head in the next few months. It is critical to the stability of communities throughout the State of New York that homeowners have access to free foreclosure prevention services to obtain advice on the best course of action to take to try to avoid foreclosure. Trying to resolve a mortgage delinquency is a complicated process. Just obtaining the information necessary to determine what options are available can be daunting. The first step is to determine who owns or guarantees the loan and this can be extremely hard to figure out, even for experienced advocates. Mortgage servicers must abide by a uniform set of rules applied to all loans held by a particular investor. For instance, if a mortgage is backed by the Federal Housing Administration (FHA), there are FHA rules and guidelines that spell out the exact steps a mortgage servicer must take and the eligibility criteria for the programs available for delinquent homeowners. However, if a mortgage is backed by a private investor, it can be nearly impossible to access and understand the rules that are operating in the background to govern what the mortgage servicer is allowed and required to do to help a homeowner in distress. Private investors frequently claim that this information is proprietary and will not reveal how their programs work for homeowners who are behind. There are many new options for homeowners with loans backed by a federal entity, such as FHA, Veterans Administration, Fannie Mae, Freddie Mac, and USDA. These agencies have developed new options for delinquent homeowners who fell behind due to the pandemic and many of these options do not require the lengthy applications that are typically needed to get approved for a loan workout when a homeowner is behind. The Consumer Financial Protection Bureau has passed new regulations in response to the pandemic contained at 12 C.F.R. §1024.41
16 | November/December 2021 | BAEC Bulletin
Volunteer to Tutor A Student! BY TAYLOR C. SCHUBAUER
Lawyers for Learning is designed to assist our community’s young people in improving their academic performance, self-esteem, and self-confidence, primarily through one-on-one tutoring. In light of the circumstances surrounding the COVID-19 pandemic, we know that tutors are needed now more than ever. Tutoring is open to all members of the Erie County legal community, including judges, attorneys, legal secretaries, paralegals, law students, and retirees. This school year, tutoring will take place in the morning, from 8am to 9am, at Buffalo School #18, 750 West Avenue in Buffalo beginning the week of October 25, 2021. Tutoring is a one-hour-per-week commitment. You may also sign up to tutor with other colleagues if you want to share the weekly commitment. If you would like to volunteer to tutor a child, please visit www.lawyersforlearning.org to submit your application. We will work with tutors, students, and the school to address any questions and concerns and facilitate keeping this important program in place. For more information or questions, please contact the Lawyers for Learning tutoring coordinator, Taylor Schubauer, at lawyersforlearning@gmail.com or 716-235-2287. •
The Bar Association of Erie County’s Diversity & Inclusion Committee is one of our most active committees, doing great work in the legal community to advocate for equality and inclusion. The Committee is asking the members of the BAEC to join and assist in these efforts. The mission of the Diversity & Inclusion Committee is to 1) to educate our legal community concerning the importance of racial equity, diversity, and inclusion; 2) to support sustainable programs that foster, build, and develop a diverse legal community; and 3) to ensure the Bar Association of Erie County promotes inclusion and provides significant opportunities for personal and professional growth for all. Diversity & Inclusion Committee Accepting New Members
STEPHANIE CALHOUN Committee Chair
To join the Committee, click the button below! •
CLICK TO JOIN COMMITTEE
BAEC Bulletin | November/December 2021 | 17
A Special Holiday Thank You to Members of Bar Association of Erie County BY MICHAEL S. TAHERI
On behalf of the entire St. Luke’s Mission of Mercy community, I want to say “thank you” to our Bar Association members for all of your generous support over the past 15 years. So many of you – judges, lawyers, paralegals and staff – have been incredibly generous in helping lift up and support this largely impoverished and frequently ignored community on the East-Side of Buffalo. As the pandemic continues, St. Luke’s is providing approximately 8,000 meals a week to people from all walks of life. Our Mission Mall will provide clothing – including coats, boots and mittens – to over 10,000 people this year. All of these acts of kindness are offered at no charge to anyone in need.
students have graduated from Canisius College, D’Youville College, Buffalo State, Medaille, and ECC. • We have a third year law student on law review from our community who is attending school in Boston • We have 4 students presently attending Canisius College on various academic scholarships The Erie County Bar has played a large role in the success of these students. They are paying your kindness forward by volunteering to help the next generation of students. The students that you helped are now donating time to mentor students, tutor and also offer financial support. They are giving back to the next generation because of the kindness you showed them when they were in need of help. Thank you for being such great role models and sharing with them the gift of time. As my role in the legal community diminishes, my commitment to St. Luke’s and the needs of this population will increase. But without your kindness and support, many of the success stories especially involving our students may not have occurred. So, as the holiday season, approaches, I wanted all of our members in the Bar Association to know that our community is grateful for all of your gifts of time, talent and resources. You have changed so many lives for the better. Thank you and Happy Holidays! •
The members of our Bar Association have gone above and beyond to offer support and meaningful assistance to the St. Luke’s community. Members of the BAEC have been generous in so many ways including:
• Volunteering to be readers to our students in the home school in grades K – 8th • Serving meals in our dining hall • Holding law firm food drives • Paying tuition for high school and college students • Donating prizes and purchasing raffle tickets for our home school program • Donating money to help fund our home school on the St. Luke’s campus • Donating clothing and other household items to our St. Luke’s Mission Mall • Tutoring students in various high school and college subjects • Assisting community members on immigration matters especially as they related to DACA. • Providing summer employment and career advice to numerous students in high school and college Over the past 15 years, the focus of my time and effort at St. Luke’s has been directed towards education which includes holding an adult reading program. Special highlights relating to our education programs include the following: • We have an 90% graduation rate from Catholic high schools and/or GED Program • We have 5 students who hold DACA cards, have earned college degrees and are all employed full time • We have 14 college graduates including 2 nurses, a person in fashion design and a professional draftsman. Our
16 | November/December 2021 | BAEC Bulletin ECBA Volunteer Lawyers Project’s 2021 Champions for Justice Award Winners
BY GRETCHEN GONZALEZ
The COVID-19 pandemic has caused innumerous changes to the law, to court procedures and how we interact with our clients and colleagues. At VLP, one thing has never changed: our volunteers are amazing! Though there were many changes to how we were able to serve our clients during the pandemic, our volunteers continued to advocate for our clients and provide representation for low-income people fighting for basic necessities of life. Though ongoing concerns regarding the safety of indoor events has caused us to cancel this year’s Champions for Justice Bash, we look forward to a time when we can all celebrate in person again. We would like to say a heartfelt thank you to those attorneys who continued to volunteer despite all of the obstacles and to recognize some stand out volunteers through our 2021 Champion for Justice Awards. Though we cannot be together to celebrate, we will be making the rounds to all of our award winners with small celebrations at their firms. This year’s group of awardees include: long time partners in the court and law enforcement; young attorneys newly dedicated to pro bono; and some stellar volunteers who went above and beyond to answer the call for pro bono volunteers. Congratulations to all of our 2021 award winners. You are all an inspiration to your colleagues and have truly made a difference in the lives of our clients. You are truly Champions for Justice! ECBA Volunteer Lawyers Project (VLP) is proud to announce VLP’s 2021 Champions for Justice Award Winners. Champion for Justice Award Jennifer Amo, FBI Special Agent (Retired) FBI Special Agent (Ret.) Jennifer “Jenny” Amo served as the FBI Buffalo Division’s representative to the Western District of New York Human Trafficking Taskforce from the taskforce’s founding around 2006 until her retirement this year. Human trafficking cases are extremely sensitive and time consuming due to their complexity as well as to trauma suffered by victims. During the eleven years that VLP has done trafficking work, our staff worked with Jenny to help over thirty undocumented victims of human trafficking move towards safety, stability, and justice. We could always count on Jenny to treat our clients with patience and compassion, to support their immigration cases where warranted, and to provide them access to
the criminal justice system they desperately needed. We thank Jenny for her many years of service to our clients and the WNY community and wish her all the best in her retirement. Divorce Award R.J. Friedman and Kristen R. Spulecki of R.J. Friedman Attorneys No one did more in 2021 to assist VLP clients needing divorce services than the team of R.J. Friedman and Kristen R. Spulecki. RJ began volunteering with VLP in 2011, just three years after being admitted to practice. He has consistently accepted pro bono divorce referrals each year since. In June, 2020, Kristen Spulecki, a newly admitted UB Law graduate, joined the firm of R.J. Friedman Attorneys and also volunteered through VLP. This Spring, when asked to choose one referral from the five divorce cases waiting for volunteers, most of which included domestic violence, RJ’s response was, “We’ll take them. What’s the old saying, justice delayed is justice denied? We’ll file them, serve them, get them into court, get attorneys appointed for the kids if need be and get them done for these folks.” We can’t thank RJ and Kristen enough for his dedication to pro bono and for going above and beyond to make sure VLP clients have access to justice. Congratulations! Immigration Award Amy L. Hemenway and Chloe J. Macdonald Harter Secrest & Emery LLP Amy L. Hemenway and Chloe J. Macdonald of Harter Secrest & Emery LLP, represented a detained asylum seeker in her petition for review before the 2nd Circuit Court of Appeals. This Togolese client had been denied Asylum when Amy and Chloe stepped in to handle the appeal on short notice. Their hard work and generosity resulted in a remand for the client who now has another chance to request asylum. Together, these attorneys provided 180 hours of free legal services for this client. Amy and Chloe did not hesitate to help when VLP called and went above and beyond to assist a client in need. They are truly Champions for Justice! Family Court Help Desk Award Kelly Buckley Chef Clerk Erie County Family Court Kelly Buckley is an invaluable resource for VLP. As Chief Clerk of the Erie County Family Court, Ms. Buckley has been instrumental in helping VLP reach our clients during
BAEC Bulletin | November/December 2021 | 19
the pandemic. When Family Court closed to in-person proceedings in March 2020, VLP transitioned the Family Court Help Desk to a remote phone line model serving the Eighth Judicial District. Ms. Buckley immediately began referring people with legal questions to VLP for assistance. VLP has now offered over 2500 phone consultations to low-income clients. Ms. Buckley keeps in frequent contact with VLP regarding Court policy and related changes. She developed an in-person kiosk at the Courthouse so our clients seeking immediate relief can virtually meet with our attorneys and get assistance drafting and filing their pleadings. She is always available to assist our attorneys in obtaining access to justice for our clients. Kelly’s continued dedication to our mission and to providing access to justice for our clients make her an essential partner and a true champion for justice. Attorney of the Morning Award Margaret O’Brien, Esq. The pandemic has disrupted the practice of law in many areas, but housing practice has had more ups and downs than most. Through it all Margaret O’Brien has volunteered regularly with VLP at the Attorney of the Morning Program at Buffalo City Court. Through several changes to the law, to court procedure and to VLP’s model, Margaret continued to volunteer. She represented 15 tenants facing eviction and assisted VLP staff with additional cases. We appreciate her enthusiasm and willingness to help wherever she is needed. The generous gift of her time, especially during the pandemic, made a real difference in providing access to justice for tenants facing eviction this year. Congratulations, Margaret! Ms. Marello is an avid advocate on behalf of low-income taxpayers throughout Western New York, and has assisted numerous clients resolve their tax controversies with the IRS, as well as New York State. Additionally, she consistently provides assistance and support to our Low Income Taxpayer Clinic through the Settlement Day Initiative, as well as the Buffalo Trial Session Calendar Call. She has helped numerous VLP clients resolve their Tax Court case before trial. Ms. Marello’s thorough work on behalf of low-income taxpayers, as well as her consistent Low Income Taxpayer Clinic Award Heather Marello, Andreozzi, Bluestein LLP
willingness to provide assistance to VLP makes her a real champion for justice. Congratulations Heather, and thank you for all that you do! Small Firm Award Pfalzgraf Beinhauer Grear Harris Schuller LLP It is not surprising, that in the midst of a deadly pandemic VLP saw a sharp increase in clients seeking assistance with End-of-Life Planning. In June of 2021, VLP found itself with an abundance of End-of-Life Planning cases that needed Pro Bono representation. We reached out to Pfalzgraf Beinhauer Grear Harris Schuller LLP to take a case and were surprised to have them take 5 cases at once. A Huge thank you to Attorneys Linda Grear, Jean Harris, Amanda Scott, Dan Schuller and Charles W. Beinhauer for the stellar representation of our clients and for stepping up to answer our emergency call for volunteers! Your dedication to pro bono is inspiring!
Rising Champion for Justice Patricia Rauh, Hurwitz & Fine, P.C.
Ms. Rauh began volunteering while in law school through the Community Justice Clinic where she provided assistance to undocumented immigrants and unaccompanied minors. A 2018 graduate of the University at Buffalo Law School, she was admitted to practice in New
James P. Renda, Esq.
69 Delaware Ave., Suite 1006, Buffalo, NY 14202 | (716) 885-4335 | JRenda@rendalaw.com
Arbitration of all financial aspects of your divorce case
◊ 8th Judicial District Court Roster of ADR Neutrals ◊ Fellow and Certified Arbitrator of the American Academy of Matrimonial Lawyers ◊ “Best Lawyers in America” designation 2005-2020 and awarded Best Lawyers “Lawyer of the Year 2019” for Family Law Buffalo by Woodward & White ◊ Lawyers of Distinction 2018-2020 ◊ Named in “New York Super Lawyers” 2007-2020 by Thomson Reuters
20 | November/December 2021 | BAEC Bulletin York in January 2019 and two months thereafter accepted her first pro bono referral from VLP. In her young legal career, Patty has already accepted eight referrals through VLP either representing Article 17A petitioners on behalf of persons intellectually or developmentally disabled, or acting as the Article 81 Court Evaluator in cases involving indigent incapacitated persons. She has quickly developed a reputation for competent and reliable advocacy as evidenced recently when one of our local Supreme Court judges reached out to her directly for an emergency Article 81 appointment (which she, of course, readily accepted). We are proud to have Patty on the VLP team of volunteer attorneys and commend her for taking such an active role in supporting our low-income community through pro bono efforts so early in her career. You too can volunteer for VLP! Please join us in congratulating all of our award winners. We hope that their stories have inspired more of you to volunteer your time to provide access to justice for VLP’s clients. We have volunteer opportunities to match any area of expertise and any level of time commitment. If you have as little as an hour to give, VLP has an opportunity for you! For updated
volunteer opportunities please contact Maria Valeri, Pro Bono Administrator at (716) 847-0662 x 321. •
GRETCHEN GONZALEZ CEO/Executive Director Erie County Bar Association Volunteer Lawyers Project, Inc. ggonzalez@ecbavlp.com
THE COMPANY OF FRIENDS. THE SUPPORT OF COLLEAGUES. Learn More At: eriebar.org/foundation
BAEC Bulletin | November/December 2021 | 21
NYS Courts Seeking Comment on NYSCEF Report and Mandatory E-Filing Amendment BY JEFFREY CARUCCI
As you may know, the Office of Court Administration submits a report each February 1 to the Legislature, the Governor, and the Chief Judge evaluating the State’s experience with the Unified Court System’s electronic filing system (NYSCEF). I write again as in past years, to invite your comments on electronic filing for inclusion in the 2022 annual. I write as well to solicit your observations, for inclusion in the February report, on a proposed amendment to CPLR Article 21A and other relevant statutes to authorize the Chief Administrative Judge to make e-filing mandatory across the state — in any or all of the State’s trial courts. This proposal was included in last year’s report, and endorsed in the Report of The Commission to Reimagine the Future of New York’s Courts. 1 Addressing electronic filing generally, the Commission which was created June 2020 by Chief Judge Janet DiFiore, recommended that legislation be enacted to allow the Chief Administrative Judge to institute e-filing on a mandatory basis in all of the State’s trial courts, and that e-filing be made mandatory and standardized statewide given that unnecessary courthouse trips present risk during the ongoing pandemic and can waste resources in ordinary times. The Commission’s Report stated, “In-person filing wastes attorney time, client money, and court resources, and is especially dangerous during the global health crisis we are currently experiencing” (Report, p.9). It further stated: “By implementing mandatory, standardized e-fling throughout the state, courts can save time and money and keep everyone safe. However, the existing exceptions for pro se litigants and technologically challenged attorneys should remain.” (id.). Currently, the Chief Administrative Judge remains restrained from making e-filing mandatory in certain courts and case types throughout New York State. The current proposal, in tandem with the Commission’s recommendation -- to lift the current restraints upon the discretion of the Chief Administrative Judge to introduce mandatory e-filing programs in any court and/or action2 -- would not alter requirements of consultation with the Bar, legal services providers and other groups (as well as the need for consent of the County Clerk in affected counties outside New York City) in advance of any future
expansion or affect other existing provisions in the e-filing legislation. Further, unrepresented persons in cases in which e-filing would otherwise be mandatory would continue to be exempt from e-filing unless they affirmatively choose to participate. Moreover, attorneys in such cases would continue to be able to opt out of e-filing if they lack the equipment or knowledge to participate. Finally, the proposal would not alter current requirements of confidentiality in the treatment of actions that require it. In order that we may have the time needed to prepare the report due February 1, 2022, I ask that as a group, an individual member of a group, or any interested person and/or attorney, submit any comments by December 22, 2021. All comments received will be included in the Annual Report. Comments should be sent by e-mail or regular mail to either of the following addresses:
Jeffrey Carucci Director, OCA Division of E-Filing Office of Court Administration 25 Beaver Street, Rm. 1062 New York, New York 10004 efilingcomments@nycourts.gov
We look forward to your comments regarding NYSCEF and the immediate proposal. • 1 ‘The Initial Report on the Goals and Recommendations for New York State’s Online Court System, Online Courts Working Group of the Commission to Reimagine the Future of New York’s Courts, November 9,2020 (“Report”), available at http://www.nycourts.Rov/whatsnew/odf/OCWG-Report.pdf.
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