Volume 61, No. 5
The Bulletin is proudly sponsored by
Bar Association of Erie County Bulletin MARCH/APRIL 2022 | Volume 61 | No. 5
Reunited and it feels so good!
Check out our calendar of social and networking events for the Spring on Page 7
Coffee & Conversation | Public Espresso
Ski Day | Holimont
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2 | March/April 2022 | BAEC Bulletin
Bar Association of Erie County Bulletin Table of Contents The Features
5 7 8 9
Letter from the President BAEC Social Events Calendar About the Member Assistance Program A Message from Foundation President Michael Perley Press Release: BAEC Advocates for Changes to the NYS Bar Exam 2021 Holiday Toy Drive Recap Judge Brenda Freedman Appointed to the NYS Juvenile Justice Advisory Group
14 15 15 16 20 21 22 34
In The Public Service: Legal Aid Bureau of Buffalo From the Lawyers Helping Lawyers Committee John Elmore Announces New Father-Daughter Law Firm The Rest of the Story...The Rule of Completeness Lawyers for Learning Bowling Tournament
In Every Issue 3 4 11
Upcoming CLE Programs BAEC Sponsors Bench and Bar in The News BAEC New Members Death & Taxes In Memoriam Contributions to the Foundation BAEC Life Members and Contributing Members Western District Case Notes Classifieds
13 18 27 29 31 32 35 36 37
Bulletin Submission Deadline 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 | March/April 2022 | 3
LIVE CLE PROGRAM CALENDAR
Erie Institute of Law CLE programs currently being held via Zoom web conferencing (unless otherwise noted). 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.
Unlawful Practice of Law: Staying Within Bounds for Lawyers, Paralegals, and Other Non-Lawyers Presented by the Unlawful Practice of Law Committee and the Western New York Paralegal Association March 24, 2022 via Zoom • 12:30pm - 1:30pm 1.0 CLE credit: Ethics (appropriate for all attorneys) $25 BAEC Member, $25 Paralegal, $30 Non-Member Environmental Law Seminar Presented by the Environmental Law Committee April 7, 2022 via Zoom and In Person • 12:30pm - 1:30pm 3.0 CLE credits: Areas of Professional Practice (appropriate for all attorneys) $75 BAEC Member, $110 Non-Member Note: When registering, please let us know if you plan to attend in person or virtually.
Life After Law School: Basic Practice 101 Presented by the Young Lawyers Committee Sponsored by Charles J. Sellers & Co, Inc., Counsel Press, Erie County Bar Foundation, Jack W. Hunt & Associates, Inc., and Stewart Title
April 8, 2022 • 9am – 4:55pm via Zoom May 13, 2022 • 9am – 4:55pm via Zoom
16.0 CLE credits (attendance both days): 3.0 Ethics, 5.5 Areas of Professional Practice, 1.5 Law Practice Management, 6.0 Skills (Approved for all attorneys, but geared toward newly admitted) Registration for 1 day: $100 newly admitted, $120 experienced, $50 law students Registration for both days: $180 newly admitted, $220 experienced, $80 law students Please note: If you have attended this program in the past, you will be unable to obtain credit for repeat attendance. Privacy and Data Security: Legal Landscape and Insurance Considerations in 2022 April 27, 2022 • 12pm - 1pm Hybrid – in-person at Hodgson Russ and via Zoom 1.0 CLE credit: Areas of Professional Practice (appropriate for all attorneys) $25 BAEC Member, $30 Non-Member Note: When registering, please let us know if you plan to attend in person or virtually.
SAVE THESE DATES! May 24 – Committee for the Disabled Half Day Seminar May 26 – Surrogate’s Court Guardian Ad Litem Training June 7 and 8 – 18 th Annual WNY Bankruptcy Conference
CLICK TO VIEW CLE DETAILS AND TO REGISTER
4 | March/April 2022 | BAEC Bulletin
Bar Association of Erie County SPONSORS Proudly Announcing Our 2022 Sponsors! These organizations have partnered with the BAEC for 2022. We are tremendously grateful for their support and generosity!
Law Firm Sponsors
A T T O R N E Y S
THE LAW OFFICES OF TIMOTHY M. O’MARA
BAEC Bulletin | March/April 2022 | 5
Letter from the President
Ever since I was a kid, I’ve loved reading the sports page. When Buffalo had two daily papers — The Courier Express and the Buffalo Evening News — I would read the sports page twice a day. I especially enjoyed reading the principal columnists, Phil Ranallo for the Courier and Steve Weller for the News. Later, Larry Felser wrote the lead sports column for the reconfigured Buffalo News. Felser was a notorious homer, but I guess I am, too. To this day, I still read the sports page first, before the rest of the paper. Holding the written sports page in my hands has provided a kind of stability — a cherished routine — in this world of accelerating change. Once a month or so, perhaps on a slow news day, Felser would address several different subjects and share numerous different opinions in a single column. On those occasions, Felser would commence, “it’s one of those opinionated days,” giving his readers fair warning of what to expect. I hope you have appreciated my approach to these presidential columns. I have endeavored to explain my thoughts and hopes rather than to recite the details of upcoming programs, CLEs, and events. I have tried to share my thinking on important topics we all face. I endeavor to have promoted reflection and discussion.
HUGH M. RUSS, III President Bar Association of Erie County
With a nod to Larry Felser, it’s one of those opinionated days.
F. Scott Fitzgerald’s The Great Gatsby begins:
“In my younger and more vulnerable years my father gave me some advice that I’ve been turning over in my mind ever since. ‘Whenever you feel like criticizing anyone,’ he told me, ‘just remember that all the people in the world haven’t had the advantages that you’ve had.’” As I have previously written, I am often asked how I am “enjoying” my bar presidency. I usually answer with some version of “I am very engaged.” But I have benefitted from advantages all my life. The presidency is just the latest advantage. As I attend more and more conferences (virtually) as part of this position, I recognize that we have a tremendous bar association. We are “ahead of the curve” on many critical legal issues. We have interesting, enthusiastic, and involved members. We have a warm and skilled bar staff. And, we have an amazing Executive Director. If I depart in June only with the friendship of Anne Noble, I will have succeeded. I am very fortunate to hold this position, and I thank you all for the advantage you have bestowed on me. It has been a privilege.
6 | March/April 2022 | BAEC Bulletin ***
almost the entire world appears to be coming together to oppose Putin’s aggressions, feed and house the refugees, and to impose sanctions against Russia. In other words, we are joining to defend democracy and to uphold the rule of law. In the face of unspeakable evil, we universally condemn Russia’s actions, and we reach out to embrace the courageous Ukrainian people. We hope that the warm welcome given to Ukrainian refugees is a model for how the world welcomes all refugees, including those of color. This humanitarian response does give me hope. There is light.
My wife, Linda, suggested this next topic. That I am even including it here probably reveals that I am not doing as good of a job at home as I should. Linda urged me to write about how difficult it is to be married to a lawyer. I recognize that I have long taken Linda for granted. But I never really considered that it could be difficult to be married to me, because I am a lawyer. How many spouses share Linda’s perspective that it is difficult to be married to a lawyer? We are trained for three years in law school, and for many more years after, to “think like a lawyer,” which as far as I can tell means to be critical, to find the weakness in our opponent’s argument or the court’s rationale, to tear down rather than to build. Such thinking hardly leads to a nurturing environment. We aspire to perfection and we reasonably expect excellence. And most of us can’t turn it off at 5:00 pm. Many of us work too hard; we are self-centered; we believe our worries are more significant than the worries of those around us; our priorities (for a lack of a better term) take priority; we tend not to save our energy for our families; our patience is often exhausted when we get home. We always have to be right. In my religious tradition we are now observing Lent. It is customary to give up a favorite something for Lent — dessert, cookies, chocolate — you get the idea. A better exercise of discipline, it seems to me, would involve taking on a new practice during Lent, like regular prayer or meditation. During this Lenten period, therefore, I am trying to spend time each day contemplating the ways in which I bring work home, being mindful of what my wife does for me, and practicing gratitude for what I have. I’ll let you know how I do.
I mentioned in my last letter to you that I am constantly searching for sources of light in this pandemic darkness, or as I call it “all this nonsense,” I’ve found a beacon, in all places, in the cap of my iced tea bottle this afternoon — a quotation from the famous Greek philosopher Anonymous. While we emerge from the lockdown and resume more full operations, I urge you to remember this bottled wisdom, “if you are too busy to laugh, you are too busy.” Our virtual existence has left us doing all the work of work, without any of the fun of work. As we return to many of our previous practices, let’s have some fun again. •
I feel as if I should say something about Russia’s invasion of Ukraine, or as we used to say, The Ukraine. As I write this letter, the United Nations estimates that over 1.2 million Ukrainians have left their homes to seek refuge in neighboring countries. This refugee crisis has occurred in only three weeks’ time. To give you a sense of perspective, more people have fled Ukraine in three weeks than Americans have died from COVID in the two years of the pandemic. Vladimir Putin shows no signs of easing his invasion. The situation grows more desperate by the day, and the twin specters of cyber and nuclear warfare cannot be ignored. I see little foundation for hope, except…
BAEC Bulletin | March/April 2022 | 7
BAEC Upcoming Member Events Our events calendar is full of fun events for all! We are excited to reconnect with you all. All members are invited to all of our upcoming events. View our full events calendar at the link below or click on details for individual events. eriebar.org/calendar
Cocktails & Conversation Thursday, March 31 @ 6pm | Giancarlo’s, Williamsville Coffee & Conversation Wednesday, April 13 @ 8:30am | Spot Coffee, Orchard Park Judicial Welcoming Ceremony Wednesday, April 20 @ 1pm | Ceremonial Courtroom, Buffalo Cocktails & Conversation Wednesday, April 27 @ 6pm | Day’s Park Tavern, Buffalo Law Day Luncheon Tuesday, May 3 @ 12pm Noon | Templeton Landing, Buffalo Member Assistance Program Orientation Friday, May 6 @ 9am | BAEC Headquarters, Buffalo Southtowns Suburban Lawyers Luncheon Tuesday, May 10 @ 12pm Noon | The Public House, Hamburg Re-Enactment of the Susan B. Anthony Trial Thursday, May 12 @ 8:30am | 20th Century Club, Buffalo Northtowns Suburban Lawyers Luncheon Wednesday, May 18 @ 12pm Noon | 800 Maple Restaurant, Amherst An Evening With the Judiciary Thursday, May 19 @ 5:30pm | Templeton Landing, Buffalo Annual Meeting & Member Reception Friday, June 10 @ 5:30pm | BAEC Headquarters, Buffalo
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BAEC Bulletin | March/April 2022 | 9
FROM THE ERIE COUNTY BAR FOUNDATION
We Are Better Together Last fall, the Bar Association and the Foundation teamed up on two projects important to our profession: jointly funding the creation of our Member Assistance Program to assist all members of the Bar Association in need of counselling and other help, and also making available green bracelets for attorneys to remind all that the mental health of our profession matters. Each bracelet is imprinted with the phrase, “Better Together,” a message to all of us that we are a professional community with a responsibility to ourselves and each other, ensuring that our profession properly serves its clients and the community as whole. None of this would have been possible without the commitment of Bar Association President Hugh Russ and the Board of Directors. Recently, Hugh and I had a luncheon meeting where began another joint project. During that conversation, it was apparent that each of our organizations brought different resources to the project that we were considering. As I jotted down some notes after the meeting, I reflected on numerous instances where I witnessed attorneys helping each other--sometimes with the practice and sometimes with others outside of it. It brought home to me that my career as an attorney was shaped by many lawyers, some in my firms, but many times, with others outside it who took the time to provide advice and guidance not just on what I should do, but how I should conduct myself in the practice. Several helped me personally. Over the last few months, there have been numerous occasions where I have witnessed attorneys helping each other, once again, not only in the practice of law, but in their lives. Whether any of them were wearing our “Better Together” bracelet, is a question that needs no answer. Those attorneys were living out the true nature of our professional community. In some of these instances, help involved the Erie County Bar Foundation. Those are the opportunities for which the Foundation exists, and we welcome the opportunity to provide financial and other assistance to those in need. While some ask for our help on their own, those who direct their colleagues to us perform a vital service to those individuals and the profession. Their concern matters. As this issue goes to press, the days are longer, the weather is (mostly) milder and the warmer days of spring are on the horizon. Based on references in my last letter, some of you may expect me to suggest we usher it in with “Spring” from Vivaldi’s The Four Seasons, a worthy choice indeed. However, I have another suggestion. The third and fourth movements of Antonin Dvorak’s New World
MICHAEL F. PERLEY President Erie County Bar Foundation
10 | March/April 2022 | BAEC Bulletin Symphony, 1 ” are made for dancing. That is something we can all do together. It has been, and remains the goal of the Foundation, to become “Better Together” with our partners, such as the Bar Association, with whom we share the goal of improving our profession. We are also “Better Together,” with those we help through difficult 1 Formally entitled From the New World, the symphony was composed by Dvorak as a result of his trip to America courtesy of a benefactor. Based in large measure on African American spirituals, which the composer considered the future of American music, the symphony nonetheless reflects his Czech heritage. Dvorak based virtually all of his compositions on his native folk music, many of which were Bohemian dances. This influence shines through in the last two movements.
times. For the Foundation, being “Better Together,” is another way of saying, “WE’RE HERE.” •
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.
BAEC Bulletin | Winter 2022 | 11
Bench and Bar In the News
Phillips Lytle LLP is pleased to announce that Partner Patrick T. Fitzgerald has joined the firm’s Corporate Practice Group. After previously serving in the firm’s Land, Environment and Energy Practice Group, Mr. Fitzgerald is lending his expertise from a prior role with a high profile private equity and investment firm as a member of Phillips Lytle’s Corporate Practice Group. Mr. Fitzgerald focuses his practice on corporate law.
V. Julia Luyster has been admitted to practice in the State of New York after 26 years practicing as a member of the Florida Bar. She continues to practice in both jurisdictions in general civil litigation, appeals, trial support, and family law. She is located in Erie County with her family.
Daniel J. Michalek has been named Junior Partner at Stillwell Midgley Visco. Daniel is a Buffalo native and a 2011 graduate of Michigan State University College of Law. At our firm, Daniel’s practice focuses on the defense of claims against hospitals and healthcare facilities, medical, dental and other healthcare providers, toxic tort defendants, and other personal injury litigants.
Barclay Damon announces Andy Oppenheimer has joined Barclay Damon’s Corporate and Tax Practice Areas. His primary office location is Buffalo. Oppenheimer is a seasoned tax and transactional lawyer whose practice focuses on cross-border and domestic tax and corporate matters involving partnerships, limited liability companies, and corporations. He advises business clients on a wide range of transactions, including mergers, acquisitions, divestitures, restructurings, debt and equity financings, and joint ventures. He also advises individuals on their domestic and cross-border tax planning and represents clients in tax disputes with the Internal Revenue Service. Dominick F. Roa has joined Stillwell Midgley Visco as an associate attorney. Dominick is a Buffalo native and earned his J.D. from The University at Buffalo School of Law in 2019. Dominick’s practice is largely devoted to insurance defense litigation for healthcare clients, nursing home litigation, medical and dental malpractice litigation, premises liability, and other personal injury litigants. Kevin Stadelmaier has become the First Deputy Defender at the Erie County Bar Association’s Assigned Counsel Program. Stadelmaier previously served as the Chief Attorney in the Criminal Defense Unit at the Legal Aid Bureau of Buffalo. He serves on the Board of the NYS Association of Criminal Defense Lawyers and is that association’s Legislative Chair. Andrea Tarshus , founder of Tarshus Law Firm, has been appointed to the Grand Island Chamber of Commerce board of directors. She was sworn in during a ceremony on January 24, 2022. In 2015, Ms. Tarshus established Tarshus Law Firm, headquartered in Grand Island, which offers a full range of business and corporate law services. She has over a decade of legal experience, providing counsel to a diverse clientele of small businesses, corporations, and organizations throughout New York State.
Bench and Bar In the News 12 | March/April 2022 | BAEC Bulletin
Lipsitz, Ponterio & Comerford, LLC announced the addition of its newest Senior Partner, Zachary James Woods . Mr. Woods is an experienced trial and appellate attorney, and he continues to concentrate his practice representing clients in Personal Injury Litigation.
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 firstname.lastname@example.org. Talks, speeches (unless they are of international stature), CLE presentations, and political announcements are not accepted. HOW TO PLACE A BENCH & BAR ANNOUNCEMENT
Bar Association of Erie County Committees
www.eriebar.org/Committees Not yet a part of a Committee? As a BAEC member, Committees are free to join! Join a Committee today! See the full Committee meeting calendar online:
BAEC Bulletin | March/April 2022 | 13
Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members:
Jeremy M. Amar-Dolan Michelle N. Barr Allana Benton Jennifer E. Brevorka Tevon Carpenter Sareer Fazili Charles J. Gaughan Daniel Gvertz Enoch Ho Chun Ho Chun Kun Amy Inzina Ginette Malpartida Rex M. McKeon Jordan Mroczek Adebare A. Ogunleye Rachel Lewis Schepart Kyra Anne Udziela Ling Yao
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Bar Association of Erie County Advocates for Changes to the NYS Bar Examination and Admission Process
The Bar Association of Erie County (“BAEC”) has passed a resolution in support of eliminating certain questions posed by the New York Board of Bar Examiners about an applicant’s criminal background when applying for admission to the New York State Bar. At its Board meeting on February 8, 2022, the Board voted unanimously for eliminating questions on the admission application, questions that the Board views as discriminatory and as an obstacle to attracting diverse candidates to law school and the profession. Currently, the NYS Bar Admission Application, Question 26, seeks without qualification sweeping information about an applicant’s involvement in the criminal justice system, even as a juvenile and even if the applicant was never convicted. Studies, including a comprehensive report by the New York State Bar Association (“NYSBA”), show that these questions chill applications to law school, especially from people of color. BAEC President Hugh Russ states that the proposed changes, if adopted, are “a vital step in increasing racial diversity in the profession.” “We can and must do a better job of making the profession open to all. Now is the time. It is a matter of fundamental justice, and it is the Bar Association’s responsibility to address these matters. The Minority Bar Association of WNY’s long history of advocating for justice is an important foundation upon which we can build. We are appreciative of the opportunity to partner with them.” President Larry E. Waters Jr. of the Minority Bar Association of WNY states that the proposed changes “are a further step to increasing diversity in the legal profession. The Minority Bar Association has supported and will continue to support efforts that eliminate barriers, obstacles, and deterrents to minorities entering the legal profession. We are appreciative of the support from the BAEC in the continued efforts to increase diversity, equity, and equality in the legal field.”
According to President Russ, the “Resolution reflects a commitment to ensuring that the practice of law in Erie County is inclusive and to removing historical obstacles and bias affecting lawyers of color.” He credits the NYSBA for its comprehensive report. A copy of the Resolution is attached. The BAEC will be collaborating with its partners at the NYSBA and Minority Bar Association of WNY to advance the recommended changes. •
BAEC Bulletin | March/April 2022 | 15
Holiday Toy Drive Recap BY CATHERINE MCCULLE AND CAROLYN DEVAUGHN
Doran & Murphy Goldberg Segalla Hagerty & Brady Jeffrey Freedman Attorneys PLLC Knoer Group Law Office of Lindy Korn Law Office of Wendy J. Christophersen Phillips Lytle LLP Pusatier Sherman Abbott & Sugarman The Tarantino Law Firm, LLP
A Special Thank You!!!
The BAEC’s Young Lawyers Committee would like to thank the participants of the 2021 Toy Drive fundraiser to benefit the Legal Aid Bureau of Buffalo. The following firms competed to raise the most monetary donations for Legal Aid. Every dollar collected went towards the purchase of toys to be distributed to children involved in abuse and neglect proceedings.
Also, thank you to all the individual contributors, non-profit organizations, and non-legal organizations for their donations to our drive! Thank you all for your generous contributions and for making this season a little brighter for these kids! •
With their help, we raised $6,870.42 !
Barclay Damon LLP Bartlo, Hettler, Weiss & Tripi Bouvier Law
Judge Brenda Freedman Appointed to the NYS Juvenile Justice Advisory Group
Hon. Brenda M. Freedman, Erie County Family Court Judge has been appointed by Governor Hochul to the NYS Juvenile Justice Advisory Group (JJAG) for a four (4) year term. The JJAG is responsible for distribution of approximately $2 million in federal Title II funds for use in juvenile justice. They determine strategic priorities and fund services to address them. The JJAG is comprised of the Commissioners of Probation, Department of Corrections, Office of Children and Family Services and other high ranking stakeholders in addition to representatives for families, youth and service providers. Judge Freedman is only the second judge appointed to the Group and the only one outside of New York City. Judge Freedman is a New York State, Erie County Family Court Judge who handles virtually all the Juvenile Delinquency and Persons in Need of Supervision [“PINS”] matters in Erie County. She also hears matters of child abuse/neglect, domestic violence, custody/visitation, child support violations and contested paternity.
Judge Freedman was been appointed lead judge in the eight counties the 8 th Judicial District to implement New York’s Raise the Age legislation, including responsibilities for judicial and attorney training. She represented the district on the state-wide Office of Court Administration Task Force for Raise
the Age and various of its sub-committees, and together with Judge Kevin Carter, Co-Chaired the Erie County implementation team to create the new Youth Part. •
16 | March/April 2022 | BAEC Bulletin In the Public Service
LEGAL AID BUREAU OF BUFFALO
Local Nonprofits Team Up for Tenants BY ALAN WILLIAMS Five Buffalo-based providers of legal services for the needy have embarked on a cooperative project to expand the availability of assistance to tenants at risk of eviction. The Western New York Eviction Prevention Program is administered by Neighborhood Legal Services, pursuant to a grant from the New York State Office of Temporary and Disability Assistance. The program serves tenants in need who reside in Erie, Genesee, Niagara, Orleans, or Wyoming County. Four local nonprofits have received subgrants from NLS to share in the work of serving the tenants: the Legal Aid Bureau of Buffalo, the Center for Elder Law and Justice, the Erie County Bar Association Volunteer Lawyers Project, and the Western New York Law Center. Civil legal services for tenants have long received government funding. Yet, historically, the funding has not been adequate to bring the supply of services up to the level of need. The Eviction Prevention Program has made it possible to serve more tenants, by funding positions for more attorneys and support staff to assist them. The timing is propitious. New York’s most recent eviction moratorium expired on January 15 of this year, and eviction filings have surged. What is more, landlords may overestimate how free they now are to evict tenants who have fallen behind on their rent. Mary Hanson of NLS says, “Now that the hardship moratorium has expired, we see a lot of misunderstandings about which eviction proceedings can proceed and which ones can’t.” Legislation passed during the coronavirus pandemic provided that when an eviction proceeding is pending, the proceeding must be stayed (subject to some limited exceptions) if the tenant provides a hardship declaration, and that unless the court finds the hardship declaration invalid, the stay must continue up to at least January 15, 2022 (L. 2021, ch. 417, Part C, Subpart A, §§ 4, 6[a][ii], 7, 10[a], [c]). It further provided, among other things, that an eviction proceeding may be commenced only if the tenant has received a hardship-declaration form (id. §§ 1, 3). These provisions expired on January 15 (see id. § 11). However, the legal landscape has not changed completely
back to what it was before the pandemic. When a household has applied for funds pursuant to New York’s COVID-19 Emergency Rental Assistance Program “or any local program administering federal emergency rental assistance program funds,” it is (with limited exceptions) unlawful to commence eviction proceedings against that household for nonpayment of rent “unless or until a determination of ineligibility is made” (L. 2021, ch. 417, Part A, § 4). Further, a residential tenant’s failure to pay rent that was due during the period from March 7, 2020, to January 15, 2022, cannot be the basis of a warrant of eviction if the tenant incurred a financial hardship during that period (L. 2020, ch. 127, §§ 1–2; L. 2021, ch. 417, Part D, § 1). Be it noted that this is not an exhaustive discussion of the recently enacted restrictions on landlords’ ability to evict tenants. Some local homeless shelters—though not all—have observed a rise in homelessness since the moratorium expired. (“For sure,” said Thomas Green, Executive Director of Faith Based Fellowship; “Of course,” said Latanya Sims, owner of Latanjas Homeless Shelter; “Definitely,” said Evan Jackson, Homelessness Prevention Program Case Manager at Gerard Place.) There is considerable concern that as time goes on, more eviction proceedings will lead more people to become homeless. The Eviction Prevention Program is dedicated to helping people keep their shelter. Naturally, an important part of the program is defending tenants in eviction proceedings, but by no means is this all. The participating institutions inform the tenants about possible opportunities for financial assistance (private or governmental). They counsel the clients, not just about the law, but about basic matters of life as tenants. Tenants are also informed
BAEC Bulletin | March/April 2022 | 17
of non-financial services that could help address the problems that led to the risk of eviction. Wherever possible, representation of the tenants begins before any eviction paperwork is filed in court. Once the tenants become aware of the landlords’ desire to evict them, if the tenants reach out to one of the institutions taking part in the program, the institution will contact the landlords to try to work out arrangements in which the tenants may stay. Payment plans are drawn up. Counsel advocate for the tenants as human beings, to convince the landlords that the tenants are people worth keeping. Beyond all that, the program has been reaching out to the wider community with educational events explaining the rights tenants have and the resources that are available to them. Attorneys who practice in this field learn that the reality of their clients’ lives is more complicated than many people realize. Hanson says, “There’s definitely a heavy misconception about all the clients that legal-services- type agencies represent—that they’re poor because of something they did wrong or aren’t doing, and there’s a misconception that they’re manipulating the programs and being lazy.” She adds, “A lot of the tenants fell on hard times, or are in a cyclical-poverty problem they can’t get out of—where every time they take steps forward, they get knocked down again. It’s rare that tenants don’t want to better themselves. More often, because of the situation a tenant is in or has grown up in, they just can’t get a break.” Jennifer Metzger Kimura of Legal Aid says, “[T]he rental market has been increasingly becoming unaffordable and the pandemic has exacerbated these issues. When clients’ rents are more than 50 percent of the money you earn, you can never get ahead, and it’s just getting even worse.” Inevitably, even with counsel, tenants in many cases will not be able to stay where they are. Even in these cases, however, lawyers can aid their clients in important ways. One way is by working out a mutual termination (basically, an agreement for a voluntary scheduled departure), lest the client be branded with an eviction record. Another important service lawyers provide is buying their clients more time to find new shelter. Not only does this help protect the clients from homelessness, it also helps reduce the risk of certain adversities that can result from abrupt changes of residence. For instance, a client who lacked adequate time to find housing in the same or a nearby neighborhood may now have problems getting to his or her place of employment. As other examples, noted in a 2018 policy brief by the NYU Furman Center, “There is considerable concern that as time goes on, more eviction proceedings will lead more people to become homeless.”
“Evictions often cause households to move into lower- quality housing in neighborhoods with higher crime, more concentrated poverty, and fewer educational or employment opportunities. . . . Evictions may cause or exacerbate mental and physical health problems, and may disrupt a household’s social support networks” (Vicki Been, Deborah Rand, Nicole Summers & Jessica Yager, Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions 3 [footnotes omitted]). The protection of vulnerable families and individuals is at the heart of our program’s mission. By making more resources available to tenants, by ensuring that more tenants will have an advocate in a process that matters so much to the lives they will lead, the state has improved the fairness of that process. •
Alan Williams, Esq., is a Staff Attorney with the Legal Aid Bureau of Buffalo, Inc.
ST. THOMASMORE GUILD LUNCHEON SAVE THE DATE
May 11, 2022 12:00 PM at the Buffalo Niagara Convention Center Honoring:
Hon. H. Kenneth Schroeder, Jr., United States Magistrate Judge of the Western District of New York With Guest Speaker: Rev. Matt Malone, S.J., President and Editor in Chief of America Media Individual Ticket: $35 Sponsorship: $350 (includes table of 10) For event details and information about grade school, high school, college, and law school scholarships, please visit: www.stthomasmorewny.org
18 | March/April 2022 | BAEC Bulletin Death & Taxes
Remote Online Notarization The New York Legislature has passed, and the Governor has signed, a bill enacting section 137-a of the New York Executive Law, authorizing Notaries Public to perform notarial acts through a completely electronic format. When implemented, this law will permit the Notary to receive a document, sign it electronically, and then email the document back to the sender without ever having to print a paper copy. This differs from the so-called Remote Ink Notary which was temporarily permitted by the Governor’s Executive Order during the pandemic, and which required the Notary to print off a document, and scan or fax it back to the sender. The on-line notarization law requires special registration by Notaries with the Department of State. This registration system of Notaries who are permitted to do on-line notarization still needs to be created by the Department of State. According to the Governor’s signing statement, the Department will need six months or more to create that online registration system. Meanwhile, the Legislature has agreed to try to enact legislation in the coming session to put a Remote Ink Notary system in place during the pendency of the operation of the on-line registration system. The new on-line system will require video and audio conferencing, and the maintenance of a recording of same for ten years from the date. The Importance of Notarization of Prenuptial Agreements The New York Court of Appeals recently handed down two decisions regarding the importance of proper notarization of prenuptial agreements. Anderson v. Anderson , 2021 NY Slip Op 07058 and Matter of Koegel . In Anderson , Candy and Jack negotiated a nuptial agreement. Candy signed and acknowledged the Agreement about a month after the wedding. Jack signed the agreement but he did not acknowledge his signature to a Notary. Seven years later, anticipating that Candy was going to sue for divorce, Jack acknowledged his signature on the nuptial agreement to a Notary, and sued for divorce. Candy then filed for divorce, and moved for summary judgment to set aside the nuptial agreement. Supreme Court denied Candy’s motion to set aside the agreement, but the Fourth Department in a 3-2 decision reversed and granted the motion on the ground that Jack’s signature on the nuptial agreement had not been contemporaneously acknowledged to a Notary, and that the parties had not reaffirmed the agreement when the signature was acknowledged.
PETER J. BREVORKA Partner, Brevorka Law Firm, P.C.
JILLIAN E. BREVORKA Partner, Brevorka Law Firm, P.C.
Jack appealed to the Court of Appeals which unanimously affirmed
BAEC Bulletin | March/April 2022 | 19
the Appellate Division decision. While section 236(B) (3) of the Domestic Relations Law and EPTL section 5-1.1-A both make absence of an acknowledgment fatal to a nuptial agreement, the statutes do not state whether the acknowledgment must be contemporaneous with signing. According to the Court of Appeals notarization of a nuptial agreement is vital because it impresses upon the parties the importance of the document being executed. The Court of Appeals held that Jack could not withhold acknowledgment, so as to later give him a choice to make the nuptial agreement effective or ineffective. The Court said that notarization did not have to be contemporaneous with the execution of a nuptial agreement. But the Court refused to set a deadline as to how soon after the signing of the document the acknowledgment must take place. In this case, however, it held that seven years far exceeded what was reasonable. In the companion case of Matter of Koegel, which was decided in the same opinion as Anderson, the Court of Appeals held the certificates of acknowledgment, which were slightly flawed, could later be cured so that the nuptial agreement was enforceable. The prenuptial agreement in Koegel was signed by both parties, and their respective lawyers took their acknowledgments. But, each acknowledgment certificate failed to attest that the signer of the nuptial agreement was known to the Notary. After the death of the husband, the wife attempted to assert her right of election. The husband’s estate petitioned to invalidate the wife’s election on the basis of the nuptial agreement. The evidence before the Court was that each party was known by the respective lawyer, and that, therefore, the flaw in the acknowledgment certificates was cured. In comparing this situation with Anderson, the Court emphasized that the defect in the certificates in Koegel was through no fault of the parties to the agreement. • “...this law will permit the Notary to receive a document, sign it electronically, and then email the document back...”
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20 | March/April 2022 | BAEC Bulletin
Alcohol Consumption Increased During Pandemic BY MARY MOORMAN PENN
A recent Buffalo News headline noted more people drank more alcohol since the start of the pandemic. (Alcohol Became a Crutch for a Growing Number During the Pandemic, January 07, 2022). Studies on the subject showed adults drank more from the start of the pandemic through 2020 than they did in previous years. Stress and anxiety brought on by the pandemic was compared with other natural disasters and large scale events that have seen increases in alcohol consumption. Overall consumption came in at more than a third higher than pre-pandemic levels, as did the proportion of those surveyed who exceeded drinking guidelines. Binge drinking was up significantly. Drinking over the guidelines by people of color and women jumped by numbers of 140 percent and higher.
As legal professionals, we are well familiar with stress and anxiety. At the Lawyers Helping Lawyers Committee, we know that the demands of work and family coupled with the isolation brought on by the pandemic can be a recipe for drinking disaster. The members of the Lawyers Helping Lawyers committee are lawyers in recovery, uniquely suited to help others with problem drinking. That help can take the form of peer support, links to treatment and other recovery resources. We also partner with the Bar Foundation to obtain financial support if that is needed. If you or someone you care about is struggling, don’t go it alone. Please reach out online at https://eriebar.org/lawyerwellbeing or call 716- 852-1777. All communications are privileged and confidential pursuant to NYS Judiciary Law §499. •
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BAEC Bulletin | March/April 2022 | 21
Is There a Lawyer in the House? Attorney John V. Elmore Announces New Father-Daughter Law Firm
REPRINTED FROM THE CHALLENGER COMMUNITY NEWS
The Law Office of John V. Elmore, P.C. is pleased to announce a new partnership and a new office location opening at 2969 Main Street at the corner of Main and Hertel in the City of Buffalo. In addition to John’s 38 years of practice as a civil and criminal attorney in both State and Federal court, he is growing his practice into a multi-generational law firm with the addition of his daughter, Attorney Kristen Elmore- Garcia as a partner. Kristen brings years of experience as a former Erie County Assistant District Attorney, as well as experience in insurance defense and as a former associate attorney for one of the largest personal injury law firms in Western New York. Kristen serves on the board of the William Emslie YMCA as well as the Afro Historical Association of the Niagara Frontier. John is the recipient of the Bar Association of Erie County 2020 Lawyer of the Year award, as well as the Buffalo News Citizen of the Year award, and the Minority Bar Association Attorney of the Year Award. John and Kristen hold memberships with the Minority Bar Association of Western New York, the Erie County Bar association, and are life members of the NAACP.
The duo is preparing to re-locate from their offices in Williamsville, into a newly renovated facility in the former Crisis Services building at the corner of Main and Hertel to better serve their clientele. John V. Elmore began his personal injury practice to represent people who have suffered from injuries due to the negligence of others. The Law Office of John V. Elmore, P.C. is an African American owned multigenerational law firm focusing on personal injury. With team of experienced paralegals and office staff, you will be taken care of from day one through the final resolution of your case. •
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
22 | March/April 2022 | BAEC Bulletin The Rest of the Story... The Rule of Completeness
BY HON. THOMAS P. FRANCYZK
No one likes to be quoted out of context or damned by half-truths or incomplete statements that reveal only the inculpatory parts when the remainder, if exposed, would cast the story in an entirely different (and more favorable) light. The law is no different in its distaste for mis-(or under-) representations of fact that would steer factfinders to a particular (i.e., erroneous) conclusion (e.g., that the defendant admitted guilt) if the adversary did not elicit the entirety of the statement. (e.g., “the defendant did admit that he stabbed the victim BUT added that it was in self- defense.”). Dating back to the common law, the Rules of Evidence have allowed that when one party has offered only a portion of a statement or conversation or writing in support of a particular conclusion, the adverse party may offer any relevant remainder that is NECESSARY TO COMPLETE, EXPLAIN OR QUALIFY such evidence. As stated by the Court of Appeals in Rouse v Whited, 28 NY 170 [1862), a Civil War-era case, “where a statement forming part of a conversation is given in evidence, whatever was said by the same person in the same conversation that would in any way qualify or explain that statement is also admissible. (Citing Prince v Samo, 7 Adol & Ellis 627 ). The rule is basically one of fairness that permits the party against whom only some evidence has been offered to clarify or explain an alleged admission, explain a prior inconsistent statement, or put it into proper context by bringing out other parts that fill in the blanks left by the other side. As the Court of Appeals observed in Gratton v Metropolitan Life Insurance Co., 92 NY 274 (1883), “the rule appears to be firmly settled both as to conversations and writings that the introduction of a part renders admissible so much of the remainder as tends to explain or qualify what has been received and that is to be deemed a qualification which rebuts and destroys the inference to be derived from or the use to be made of the portion put in evidence.” THE NEW YORK RULE: New York Advisory Evidence Rule 4.03 (Completing, Explaining a Writing, Recording, Conversation or Transaction), states that: When part of a writing, conversation, recorded statement or testimony, or evidence of part of a transaction is
admitted, ANY OTHER PART of that writing, conversation, recorded statement or testimony, or evidence of any other part of the transaction, may be admitted WHEN NECESSARY TO COMPLETE, EXPLAIN OR CLARIFY the previously admitted part. The TIMING of the admission of such additional parts is WITHIN THE DISCRETION OF THE TRIAL JUDGE. (See People v Torre, 42 NY2d 1036 [1977}, People v Gallo, 12 NY2d 12 ). So, for example, if the prosecutor were to admit on direct examination only a portion of a taped jailhouse conversation between the defendant and his girlfriend wherein, he admitted that cocaine was found in his gym bag, defense counsel might: immediately ask the judge to direct the prosecutor to play that part where the defendant claimed that he had previously lent the gym bag to a friend who had recently returned it, or elicit such information on cross examination or bring it in during the defense case (which might well be too late for maximum benefit). See also CPLR 3117(b): If only part of a deposition is read at trial by a party, any other party MAY READ ANY OTHER PART OF THE DEPOSITION WHICH OUGHT, IN FAIRNESS, BE CONSIDERED IN CONNECTION WITH THE PART READ. THE RULE HAS ITS LIMITS: In People v Schlessel, 196 NY 476, 487 (1909), the Court of Appeals reversed the defendant’s conviction for defrauding creditors (by assigning a check payable to him for $1,972.43 to his brother) because the trial court admitted evidence of a third-party petition filed in Bankruptcy Court to set aside the allegedly fraudulent, subsequent sale of the defendant’s house (as evidence of criminal intent when he conveyed the above-referenced check to his brother). The People argued and the trial court agreed that the defendant had opened the door to this evidence when he asked a prosecution witness (receiver-in-bankruptcy) about the sale of the property, specifically whether the petition had alleged that the buyer realized a benefit of $22,000.00 on property for which he only paid $2,700.00. The witness answered that he didn’t know whether such information was contained in the petition. The petition was received into evidence in its entirety over objection and was published to the jury. The court told the defense, “If you open the door on cross examination, they (the People) have the right on rebuttal to prove what they want to prove in the petition.” When the jury asked the court how to interpret the petition
BAEC Bulletin | March/April 2022 | 23
as evidence, the court explained (contrary to its earlier cautionary instruction), that the petition was allowed into evidence just as other checks and transactions were received because they reflected upon the defendant’s intent when transferring his property, including the check which he handed over to his brother. The Court of Appeals found the “open door” argument (permitting evidence of an allegedly fraudulent subsequent sale of his house as evidence of the defendant’s intent in transferring the check to his brother) to be so unsound as to barely warrant serious consideration. The Court observed that there was “no tenable theory” which permits the reception of evidence that is not only irrelevant but is also “intensely hostile’ (i.e., unfairly prejudicial) to the defendant. The Court further explained that where part of a document Is received, other parts may become admissible (because they QUALIFY, LIMIT OR EXPLAIN the relevant matter first introduced), but this was no such case. Here, when the witness claimed ignorance of the bankruptcy petition’s contents, in the Court’s view, there was nothing that required further explanation or clarification. In short, it was reversible error to admit evidence of an allegedly fraudulent sale of his house in bankruptcy (for grossly inadequate consideration) to prove criminal intent in conveying a check to the defendant’s brother months earlier. With respect to the right of a party against whom an utterance has been admitted to offer the remainder in order to elucidate the total tenor and effect thereof, the Court directed that:
transactions), and it provides for an IMMEDIATE response (rather than leaving the timing of the introduction of responding evidence to the judge’s discretion). Like its New York counterpart, the Federal Rule is based on principles of fundamental fairness, thus permitting receipt of other portions of a statement offered only in part. The Federal Rule also allows RELATED STATEMENTS to be admitted to ensure that the jury will view the statement in question in its full context. (See article, “FRE 106: Hardly a Fait Acompli,” by Prof. Veronica Finkelstein, Drexel Law Review, Thomas R. Kline School of Law, 8/14/19, drexel.edu). In the article, the author notes that Federal Circuit Courts are split over whether the rule also admits oral testimony/statements (1st and 7th Circuits-yay, 6th Circuit-nay, [US v Shaver, 81 F Appx 529 [6th Cir 2009]), as well as otherwise inadmissible evidence (e.g., hearsay) to complete or clarify evidence that was introduced only partially. For example, the Sixth Circuit has interpreted FRE 106 to admit only admissible evidence while the First and Third Circuits (focusing more on the rule’s purpose than its text) view the rule as creating an exception to exclusionary rules (e.g., Hearsay) in the interest of providing context, completeness, and fairness. In suggesting that the FRE should be broadened to include oral statements (e.g., memorialized in writings, reports, and letters as in Beech Aircraft Corp v Rainey,
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a. No utterance that is irrelevant to the issue be admitted
b. No more of the remainder of the utterance than concerns the SAME SUBJECT and is EXPLANATORY OF THE FIRST PART is receivable. c. The remainder thus received MERELY AIDS in the CONSTRUCTION OF THE UTTTERANCE AS A WHOLE and is NOT ITSELF TESTIMONY. So, to be admissible, the remainder of the statement must be RELEVANT, EXPLANATORY, LIMITED TO THE SAME SUBJECT MATTER and only serve to aid in the understanding of the entire statement. THE FEDERAL RULE: Federal Rule of Evidence (FRE) 106 states that if a party introduces all or part of a WRITING or RECORDED STATEMENT, an adverse party may require the introduction AT THAT TIME of any other part or ANY OTHER WRITING or recorded statement that, in fairness, ought to be considered at the same time. This rule appears by its terms to be limited to written or recorded statements (unlike the New York Rule which also includes oral conversations, testimony, or evidence of
the topic of ADR. I am a past President of the Western New York Trial Lawyers Association, and a charter member of the NYSBA’s Dispute Resolution Section. I am also a Certified Federal Court Mediator. My fees are extremely reasonable, certainly a more cost effective alternative than a trial. I will be as flexible as possible in terms of scheduling and location, resulting in a quicker and more convenient resolution of your claim. MICHAEL MENARD 69 Delaware Ave., Suite 705, Buffalo, NY 14202 (716) 842-6700 | FAX: (716) 842-6707
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