Volume 62, No. 3
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Bar Association of Erie County Bulletin NOVEMBER/DECEMBER 2022 | Volume 62 | No. 3
Mock Trial Building a Pipeline of Future WNY Lawyers Page 8
OLIVER C. YOUNG Of Counsel Barclay Damon
CRAIG BUCKI Partner Phillips Lytle LLP
HON. HENRY J. NOWAK Erie County Supreme Court Eighth Judicial District
MATT FITZGERALD Chair of the Mock Trial Committee
2 | November/December 2022 | BAEC Bulletin Bar Association of Erie County Bulletin Table of Contents
Letter from the President Highlighted Article: Mock Trial Resumes in Person From the Erie Institute of Law
10 13 15 16 17 19 22 29 30 32 34 39 40
Young Lawyers Committee Toy Drive Oral Arguments at the Supreme Court In the Public Service: Western New York Law Center Jeff Baase Named Defense Trial Lawyer of the Year; And Meghan Brown to Receive Civility Award New Cybersecurity, Privacy and Data Protection CLE Requirements Committees of the Bar Association Nominations Sought For Bar Association Leaders Request for Comments: Annual NSCEF Report & Proposed Legislation to Expand E-filing
BAEC President Jill K. Bond Thanksgiving Message David P. Flynn Inducted to Williamsville Wall of Fame Hon. Mary L. Slisz Red Mass Address Hon. Joseph D. Mintz Eulogy
In Every Issue 3 7 11
BAEC Sponsors Member Assistance Program Upcoming CLE Programs Bench and Bar in The News BAEC New Members Death and Taxes In Memoriam Contributions to the Foundation Western District Case Notes BAEC Life Members and Contributing Members Classifieds
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Bulletin Advertisement Index Bulletin Submission Deadline
Bar Association of Erie County President Vice President Treasurer Jill K. Bond Timothy J. Graber Gayle T. Murphy Sarah M. Washington Anne M. Noble
Deputy Treasurer Executive Director Editor of the Bulletin
Chase A. Kalandia Board of Directors
Kara M. Addelman, Samuel A. Alba, Anne K. Bowling, Peter J. Crotty, Stephen C. Earnhart, Jennifer Kimura, Jamila A. Lee, Katie L. Kestel Martin, Sharon Nosenchuck, Maura O’Donnell, Kelly Barrett Sarama, Hon. Stephanie A. Saunders, Carmen L. Snell
BAEC Bulletin | November/December 2022 | 3
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
AT T O R N E Y S
THE LAW OFFICES OF TIMOTHY M. O’MARA
4 | November/December 2022 | BAEC Bulletin
Letter from the President
PRESIDENT BOND’S THANKSGIVING MESSAGE OF HOPE CAN BE READ ON PAGE 32 Post-pandemic, many are still working remotely and feeling isolated and yet they find themselves resisting going back to the office and even attending social gatherings. That all is bad news, but there was good news too. We have colleagues who care and want to be supportive and help each other when we struggle. We have committees for attorneys with depression and those suffering with substance use disorder. We have a Member Assistance Program that provides members with confidential, free counselling; we have the Erie County Bar Foundation to step in when we need financial assistance to get the help we need. People said I was brave to share my story. I felt that to be in my position and to talk about attorney wellness and not share my story would be disingenuous. Once I started, it wasn’t so hard. It certainly wasn’t as hard as facing those dark days. I know it takes bravery to put one foot in front of the other in the darkness. But I also know that when we are in that dark place, it is hard to see that help is within our reach. You just need to take that leap of faith and reach out. In order to further the dialogue, I plan to host informal sessions over coffee, lunch or end-of-the-day pizza so we can just talk. We can share our struggles and successes. Sometimes we can hear from counsellors and experts who might help us with strategies and tools to move us toward health, balance, well being, happiness, contentment, peace. The Holidays are now upon us. I celebrate Christmas and this time of year brings me hope and joy and a reminder to do good for others. The New Year brings a fresh start with commitments to myself to become a better version of myself. I start by cleaning my closet, my desk and my car. This Holiday season, no matter what you may celebrate , I wish you the joy of giving that perfect gift, the peace of knowing your loved ones are healthy and safe, the warmth of being with those you love and the peace of accepting yourself as perfectly imperfect and loved. I dedicate this message to the memory of James R. Walsh. My husband, Keith was blessed to work most of his career with Jim at Walsh, Roberts and Grace. Jim was a well- respected lawyer who worked tirelessly for his clients. More importantly, he was one of the best human beings I have ever encountered. He was kind and generous. Unless you knew him well, you would never know the depth of his generosity with his time and resources alike. He sought no gratitude or recognition of any kind. The giving itself was his reward. We loved his keen intellect and quick wit—he always had a twinkle in his eye. Most of all, he was a man of devout faith and a family man who loved Colleen, his beautiful wife of 58 years, his four children and nine grandchildren more than anything. His favorite quote was from Saint Theresa, “Let no one ever come to you without leaving better or happier.” Jim lived by those words and those who knew him were indeed better and happier because of him. In your life, you are lucky to meet someone like Jim. To be in a position to regularly witness such a good man in action, and to call him your friend, is a tremendous blessing. Rest in Peace, Jim. We are better lawyers and humans for having known you, and we miss you more than words can say. With gratitude an sincere wishes for a wonderful holiday season and the hope and promise that comes with a new year.
JILL K. BOND President Bar Association of Erie County
It has been quite a month since my Thanksgiving message. I have received so much feedback from people I know and people I’ve never met. Mostly, I got support and gratitude for sharing my story. As I read through these notes, there were a few themes that struck me. First, there was confirmation that, while I may have felt very alone when I struggled, I was never alone. Beside me were many colleagues and friends who were also struggling silently. Most of us suffer in silence for a variety of reasons. Our profession requires that we possess a certain air of confidence. We believe that any vulnerability is inconsistent with our and others’ perception of competence. But there is comfort in knowing you are not alone. When you see someone in whose competence you have no doubts and you know they struggle just like you, it helps you get over that obstacle. Our unwillingness to admit to our struggles keeps us from the help that is so close and so needed. The response to my letter made me feel a willingness to accept me despite my struggle. Honestly, I cannot think of anything in my career that elicited such an overwhelmingly positive reaction. If you are struggling and reach out for help, I am confident that you will receive the same support from loved ones, colleagues and even strangers. Many people shared stories of feeling unworthy of all they have accomplished and experiencing “imposter syndrome;” that feeling that someday people will realize that you really aren’t as competent as your position and accomplishments would suggest. I heard from women and men who struggled with depression, sometimes severe, when their children left home. Those whose nests are still full are exhausted from meeting the demands of their families and their profession, often feeling like they are coming up short on both sides of the equation.
With gratitude, Jill •
BAEC Bulletin | November/December 2022 | 5
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6 | November/December 2022 | BAEC Bulletin
Bar Association of Erie County Committees
Our Committee meetings are in full swing! Click the link below to view the calendar and request to join a new Committee!
CLE ONDEMAND VIEW ANYWHERE, ANY TIME!
The Erie Institute of Law offers a robust library of pre-recorded CLE program that are easy to access and watch on your time! Get the CLE credits you need wherever, whenever!
CLICK TO BROWSE PRE-RECORDED CLE LIBRARY
Questions? Contact Alicia Quebral at email@example.com or by telephone at 716.852.8687.
BAEC Bulletin | November/December 2022 | 7
8 | November/December 2022 | BAEC Bulletin Mock Trial: Why We Do It & What It Means
Building a Pipeline of Future WNY Lawyers BY CRAIG BUCKI, HON. HENRY J. NOWAK, OLIVER YOUNG I have been involved in practically all facets of the New York State High School Mock Trial Program. My very first association with the program was serving in 1982 as an attorney-advisor for a school. I then worked with a second school for three years (1983-86). The second school had more than a modicum of success, having placed second in the statewide Mock Trial Finals in 1986. In 1987, I joined the Law, Youth and Citizenship (LYC) Committee of the New York State Bar Association (NYSBA). The LYC Committee, along with NYSBA’s LYC Program, is in charge of the mock trial program, which includes drafting the case materials each year, recruiting attorney-advisors for schools across the state, securing judges for the matches and managing the statewide finals in Albany. For three years (2003-06), I served as chair of the LYC Committee. I subsequently joined LYC’s Mock Trial Subcommittee and from 2008 to the present have served as the principal drafter of, or significant contributor to, each mock trial case since that time. About eighteen lawyers from across the state comprise the Mock Trial Subcommittee and while it involves a significant amount of work, our reward is seeing the commitment, dedication, and effort the students put into the endeavor each year. Although the mock trial program is called a competition, we try to de-emphasize the competitive nature of the program and seek to keep the focus on the educational component of the exercise. Students not only learn about the law, trial techniques, evidentiary rules, and rules of procedure, they also learn how to think on their feet, how to operate under pressure, how to engage in civil discourse, how to work together in a group, and perhaps more importantly how not to be so dogmatic in their thinking (because they have to prepare and present both sides of the case, and hopefully come to realize that there might be more than one valid perspective on an issue.) All in all, what I have observed over the years is that we have ordinary students stepping forward to do something extraordinary. I hope you will join this important endeavor as an attorney-advisor or judge to witness for yourself the brilliance of these young people.
“Your Honor, calling this witness an expert in accounting is like calling Shaquille O’Neal an expert in free-throw shooting – just because they do it a lot doesn’t make them good at it!” Annika Wilewicz, City Honors Sophomore, Numerous Rounds of the High School Mock Trial Tournament. So many moments made us smile – creative arguments, clever analogies, vivid themes. As coaches of last year’s Erie County championship team, we got to know twelve wonderful kids. We taught them, challenged them, praised them, laughed with them, and consoled them. We promised them documents would get into evidence and apologized when judges kept them out. By the time we reached the State finals, we felt like we had been engaged in a perilous journey together, where everyone had to carry their own weight and lend a hand when others slipped or stumbled. The case crafted by the Young Lawyers’ Committee of the State Bar Association always includes enough twists and turns to encourage creativity and guarantee surprise from opposing teams and judges, round after round. Students quickly appreciate that the arguments they prepared, which always worked in practice, may backfire spectacularly in competition. At first they were bewildered, but by the season’s end could imitate us saying, “I’ve gotta tell you, this happens in real cases all the time.” The students see enough courtroom drama on TV to pick up the basics pretty quickly – what a leading question is, the role of experts and why they need to by qualified. Hearsay and its exceptions are tougher, as they are for all of us. Our practices are filled with tinkering with the phrasing or sequence of questions, exploring ways to minimize damage or challenge relevancy, and managing what to do if a witness contradicts their prior statement, refuses to answer or rambles on and on. Spending time with the students, analyzing the facts and applying the law and rules of evidence, is often the most fulfilling part. We watch them learn together and are reminded that lawyering is a craft, an art. The Bar Association takes great care to support the teams and ensure that the competition is fair and inclusive. If you haven’t yet participated in the New York High School Mock Trial tournament as either a coach or a judge, certainly volunteer this year. It is one of the more rewarding activities we have experienced as attorneys. You will create memories that last for years.
HON. HENRY J. NOWAK Erie County Supreme Court Eighth Judicial District
OLIVER C. YOUNG Of Counsel Barclay Damon
BAEC Bulletin | November/December 2022 | 9
Every year, thousands of students across New York State compete in the New York State Bar Association’s High School Mock Trial Tournament, administered locally by the Bar Association of Erie County. This competition empowers students to perform as witnesses or advocate as attorneys in a hypothetical trial before volunteer judges from the practicing Bar. Success in the competition requires students to hone their public speaking and critical reasoning skills in a collaborative, team-oriented environment. As part of their preparation, students are required to analyze evidence and craft a case theory to advance in court. To do this, each team is provided a set of affidavits and evidence to review. The evidence provided has included anything from mock financial and medical records, to maps, to even song lyrics. Students must then piece together the evidence to create a persuasive theory of their case. This process compels students to think critically about how each piece of evidence relates to others, and how that evidence can be persuasively deployed to achieve client objectives. Much like they would in the actual practice of law, students must determine the most effective way to make their case to the finder of fact. This requires students to consider how to present the evidence to someone with little knowledge of the case. In addition to considering what evidence is the most persuasive, and how to present that evidence, student attorneys must consider whether that evidence is admissible under an abridged version of the rules of evidence, and be prepared to offer argument concerning application of evidentiary rules in competition.
Not surprisingly, mock trial helps students practice and build confidence in public speaking and presentation skills, which serve them well as future attorneys, or in whatever professional paths they choose to pursue in the future. Perhaps more important, as we can attest from personal experience, mock trial participants also forge lasting friendships with their teammates through hours of practice and competition. As we pursue our own legal careers, we have never forgotten our experiences competing in mock trial. There is no better activity for developing public speaking and critical reasoning proficiency, while also learning respect for the law and the role of the courts in its application. •
CRAIG BUCKI Partner, Phillips Lytle LLP Member of the 1997 NYSBA Highschool Mock Trial Tournament State Championship team representing Canisus High school
MITCHELL P. SNYDER Associate, Phillips Lytle LLP
Member of the 2015 NSYBA Highschool Mock Trial Tournament State Championship team representing Clarence High School
FOR MORE INFORMATION ABOUT THE 2023 MOCK TRIAL PROGRAM AND TO VOLUNTEER CONTACT MATT FITZGERALD, CHAIR OF THE MOCK TRIAL COMMITTEE AT MFITZGERALD@PHILLIPSLYTLE.COM
HAPPY HOLIDAYS FROM YOUR FRIENDS AT THE BAR ASSOCIATION OF ERIE COUNTY
10 | November/December 2022 | BAEC Bulletin
FROM THE ERIE INSTITUTE OF LAW
Even though Anne Noble endeavored to float me out on the proverbial iceberg, I decided to hang around as Dean of the Erie Institute of Law, a fancy title for head of the CLE committee. During the Pandemic, we heard from many of you that some of our more creative CLE presentations were the most important ways in which you felt “connected” to other lawyers and to the bar in general. And, as my top priority during my presidency, I tried to stress the importance of racial justice, diversity, equity, and inclusion. Just this fall, we presented five CLEs addressing these issues. Attempting to capitalize on the momentum of these initiatives (momenta?), we are actively planning for the 2023 CLE season. We hope to present some additional creative CLEs addressing current topics of interest, and not just the ones we have routinely offered for years. At the EIL, we heard your message loud and clear: we must change with the times. We will offer new programs, addressing new topics. As for RJDEI matters (we may need a better acronym), we will continue to push educational programs in this critical area. I have said many times in public that RJDEI issues underlie virtually every meaningful problem we face in law, and in greater society. As lawyers, whether we like it or not, we are leaders. Our community looks to us to do the right thing, and to convince others—clients, judges, juries, partners—to follow. At the EIL, we pledge to assist you in this process. Happy New Year from the EIL. 2023 should be a great year. Let me know if you want to help. •
HUGH M. RUSS III Dean Erie Insititute of Law
BAEC Bulletin | November/December 2022 | 11
LIVE CLE PROGRAM CALENDAR
Erie Institute of Law CLE programs are either being held via Zoom web conferencing or in person. For virtual programs, registrants will receive course material and Zoom link via email 1-2 days in advance of a program. Please note that some program details are not final as of publication time. For additional program details and to register, visit our website at www.eriebar.org/CLE.
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Introduction to Native American Cultural Competency 1.0 credit: Diversity, Inclusion & Elimination of Bias OnDemand: $40 Member (use promo code member2017), $50 Non-member Judges Heckman and Montour provide an overview of traditional Native American cultures, including historical factors that play a part in the health and wellbeing of many Native communities, and the role they play in the development of our laws. Update on NYS Civil Practice & Procedure Fall 2022 3.0 credits: Areas of Professional Practice OnDemand: $85 Member (use promo code member2017), $130 Non-member Brian Gwitt and Bill Savino offer their annual review of statutory and case law from the past few years, with a special emphasis on decisions from the Fourth Department. Catch up on all of the changes you missed! Part 36 Receivership Training 3.0 credits: Areas of Professional Practice OnDemand: $85 Member (use promo code member2017), $130 Non-member This program will provide an overview of the types of situations in which a receiver is available and will provide instruction on applying for and obtaining a receiver, and will also discuss the compensation, duties, and powers of a receiver in various contexts. Attorneys working in a practice area in which the appointment of a receiver may be necessary or helpful; provisional remedy, such as mortgage foreclosures, creditors’ enforcement actions and corporate dissolutions, will also find this useful. Complete your certification and begin getting your appointments!
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12 | November/December 2022 | BAEC Bulletin Bench and Bar In the News
Mughees Jamal Jan joined Phillips Lytle LLP as an associate (admission pending) in the firm’s Litigation Practice Group, focusing on data security and privacy, as well as commercial litigation. He previously served as a law clerk for the Supreme Court of Pakistan. Mughees received his J.D. from Indiana University Maurer School of Law and his LL.M. from the University of Texas School of Law. Lucas A. Hammill joined Phillips Lytle LLP as an associate (admission pending) in the firm’s Litigation Practice Group, focusing on commercial litigation. Lucas received his J.D. from Georgetown University Law Center. Zabrina V. Reich joined Phillips Lytle LLP as a partner when she brought immigration firm Serotte Reich LLP to Phillips Lytle, deepening the bench of attorneys on the firm’s Immigration Practice Team. As team leader, Zabrina assists companies and individuals in strategically navigating the complex U.S. immigration system and handles a wide array of immigration matters. She works with multinational, mid-size and small businesses in obtaining TN, L-1, H-1B, E-1/E-2 and O-1 status for their employees and regularly counsels investors, entrepreneurs and start-ups in obtaining investment-based nonimmigrant visas. Zabrina also handles family-based immigration matters, naturalization and waivers. Due in part to her proximity to the border, Ms. Reich has developed particular expertise in NAFTA/USMCA applications, waiver and admissibility issues and border- problem cases. She received her J.D. from the State University of New York at Buffalo School of Law. Diana E. Konik is an associate at Phillips Lytle LLP in the firm’s Land, Environment & Energy Practice Group. She concentrates her practice on energy law, including permitting and siting of energy projects, and advises clients on natural and renewable natural gas production and infrastructure matters. Diana brings unique perspectives and insights to the firm as she previously served as an engineer for a major Midwest natural gas distributor. She received her J.D. from the University of Akron School of Law. Anthony J. Barone, Jr. brings nearly 50 years of corporate, commercial, real estate, immigration and judicial experience to Phillips Lytle LLP as senior counsel in the firm’s Immigration Practice Team. Anthony focuses his practice on matters involving individual and corporate client employment transfers, USMCA matters including work permits, investor/trader applications and other employment-related aspects of immigration law. He received his J.D. from the University of Toledo School of Law. Lauren M. Adornetto joined Phillips Lytle LLP as an associate in the firm’s Land, Environment & Energy Practice Group. She concentrates her practice in the areas of land use and zoning matters, SEQRA and environmental reviews, regulatory compliance and community association law. She also has general commercial and environmental litigation experience. Lauren received her J.D. from the State University of New York at Buffalo Law School. Rosario Chetta joined Phillips Lytle LLP as special counsel in the firm’s Litigation Practice Group. He focuses his practice on representing corporations in matters involving product liability, mass torts, personal injury and chemical exposure lawsuits. In addition, he has represented manufacturers, distributors and contractors for almost 20 years with respect to lawsuits alleging personal injuries as a result of exposure to asbestos. Rosario received his J.D. from Elisabeth Haub School of Law at Pace University. Lauren E. Weber is an associate at Phillips Lytle in the firm’s Litigation Practice Group. She concentrates her practice on commercial litigation and premises liability. She was named an Upstate New York Super Lawyers® Rising Star in 2022. Lauren received her J.D. and LL.M. from the University of Illinois Chicago School of Law
BAEC Bulletin | November/December 2022 | 13
Bench and Bar In the News
Stephanie R. Messina, Esq. joins Burgio, Curvin & Banker as a Senior Attorney in the firm’s litigation practice. Stephanie concentrates her practice on insurance law and litigation, and appellate practice. Stephanie brings to the firm considerable experience in personal injury law, risk management, auto injuries, no fault, premises liability, and first-party claims. She is admitted to practice in New York and in the U.S. District Court, Western District of New York. Stephanie received her undergraduate degree from the State University of New York at Buffalo in 2009, and her J.D. cum laude from Albany Law School in 2012. She is a member of the Erie County Bar Association, Women’s Bar Association, and New York State Academy of Trial Lawyers. Nicholas M. Rossi, Esq. joins Burgio, Curvin & Banker as a senior attorney in the firm’s litigation practice. Nick concentrates his practice on civil litigation, representing a variety of insureds. He brings considerable experience to the firm in civil litigation and oral advocacy. Nick earned his B.A. summa cum laude from the State University of New York at Buffalo in 2007, and his J.D. from the State University of New York at Buffalo in 2010. Nick has previously been named a Super Lawyers Rising Star.
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 Chase Kalandia 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
14 | November/December 2022 | BAEC Bulletin
Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members: Aaron Charles Gorski Michael Gossel Zoe Green
Summer Aikin Timothy Allaire Olivia Anderson Danielle Antwi Christopher Atwood Stephanie Aubin Mark C. Bachman Hannah Baker Nathaniel Baldo Pamela Barnes Mark Bassett Michael Battenfeld Asma Bawla Bryana Becker
Amara Mitchell Mark Miskovski Nicia Bottini Morales Omar Caleb Morales-Lopez Taylor Morisey Emma P. Murphy Rachel Nuchereno Margaret A. O’Connor Dakota J. Penkalski Jessica Lila Pisano Marygrace Piskorowski Paula P. Plaza Morrison Plenge Matthew B. Powers Braden Joseph Pritchard Alicia Quarterman Natalia Quevedo de la Espriella Natalie Quevedo Zachary Raber Rachel Margaret Radack Alonni Reid David Reinharz Matthew O’Hara Sara Paltrowitz Thomas Parsons Rani Patel Alexandra Rosenlund Ashley Rovner-Watson Greg Schmidt Dan Scully Jessica M. Senske Stephen Sercu Tessa Elizabeth Shurr Kyle Sobon Sarah K. Spencer Ryan Stamm Lisa Steiner Kim Hong Suy Matthew Taboni Joseph J. Tempski Kyli Tripoli Grace Vensel
Allen J. Greer Merve Gulbay Grant Haffenden Lucas A. Hammill Qui’Essence Harris Lillian Hatch Amanda Hausmann William Hecht Wendy Hechtman Patrick Higgins Kristina Hill Abbygail Hoke Bailey P. Hughes Kaitlin Hughes Keith Hurley Moshin Ilyas Paige E. Irvine Hannah Johnston James J. Kelleher Kelsey Killelea Olivia King Katherine Kio Elizabeth Kostadinovski Kristen Anne Kozlowski Theresa Lee Sierra Leitten William Joshua Levesque Katherine Logan Xiangyu Lyu Shelby MacSwan Amara Mitchell Mark Miskovski Nicia Bottini Morales Omar Caleb Morales-Lopez Taylor Morisey Emma P. Murphy Rachel Nuchereno Margaret A. O’Connor Katherine Kraft Julia Laquidara
Morgan Bedford Noemi Bekteshi Natalia Beltre Bethany Ben Abdallah Joshua T. Benner Tristan Justino Berg Henriques Sara Beyer Jennifer Elizabeth Bigelow-Carlson Alex Bitterman
Katelyn Blencowe Ikwuhze Blessing Alexandra Brockhizen Christina Brooks Lillian Brown Alexis Buckner Giulia L. Buscaglia Emily Cabrera Erin Carlin Bryan Carlo Amelia Carrothers James Carter Andrew Cegielski Chloe Charles Rosario Chetta E Joo Chua Jiyoung Anna Chung Emily Cioch Peter John Ciotta Brian Comerford John D’Aquino Alex DeAntonis Chaz DeLuca Steven Dignam Katharine England Jacob Daniel Fogarty Mia Forney Andrew L. Fromen James Garvey Amelia Goodloe
Matthew O’Hara Sara Paltrowitz Thomas Parsons Julia Laquidara
Emma Vicaretti Gabrielle Walsh Meredith Wattle Quinn Webster Jonah G. Weiss James Wheat Rory C. Wheeler Jonathan Whyte Steven J. Whyte Maddoc Williamson
Theresa Lee Sierra Leitten William Joshua Levesque Katherine Logan Xiangyu Lyu Shelby MacSwan
BAEC Bulletin | November/December 2022 | 15
Is It Time to Get Admitted to the US Supreme Court?
Washington Lawyer magazine has listed “observing oral arguments at the Supreme Court” as the num- ber one alternative for “expanding the mind and improving one’s practice”. The U.S. Supreme Court is “distinctly American in concept and function”, as former Chief Justice Hughes has observed. Rarely can one observe an entire branch of the Federal Government in action. The Bar Association of Erie County has been organizing and scheduling in person admissions to the United States Supreme Court Bar. Bar Association members are admitted in open Court before all nine Justices and listen to oral argument. The experience is always enjoyable. This year’s excursion to Washington, D.C. is set for Monday, April 17, 2023. Interested applicants must be admitted to practice for three years, free from any adverse disciplinary action, and sponsored by two members of the U.S. Supreme Court Bar. A $200 fee is required. There is still time to sign up if you are interested. Dennis J. Bischof, Esq., is coordinating the Admissions Program for the Bar Association. Feel free to call Dennis at 630-6500.
Certificate of good standing: www.NYCourts.gov/AD4
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16 | November/December 2022 | BAEC Bulletin In the Public Service
The Small Business Legal Clinic Relaunches Public Drop-In Clinics BY NEHA M. KARAMBELKAR The Western New York Law Center, Inc. is home to the Small Business Legal Clinic (SBLC), the only legal clinic in WNY that provides free legal services to small business owners and entrepreneurs at all stages of their business life cycle. Services include business formation, document review, contracts, insurance, employees, taxes, buying/ selling/dissolving a business, and more. In addition to these services, the SBLC also helps clients develop their network of third-party technical and business advisors, who provide free mentoring/business planning services, and free or low-cost training. This is accomplished through our relationships with several small business partner organizations. By introducing our clients to our small business network, they receive additional non-legal assistance at critical times in their business life cycles, thereby increasing their potential for success. The SBLC’s main goal is to help our clients create and sustain their business. In New York, the entrepreneurship rate among low-income people (0.42%, or 420 entrepreneurs per 100,000 low- income residents) exceeds the national entrepreneurship rate for people of all income levels (0.30%). Small businesses are the backbone of the local economy. Historically, over 100 business certificates are filed in Erie County every week, which means that approximately 6,000 small businesses are formed in the county every year. This data suggests that low-income entrepreneurs are starting businesses in significant numbers. During the pandemic, we saw an uptick of business formations and continue to see this trend post- pandemic. We are also receiving more and more calls from small business owners facing commercial eviction and commercial foreclosure with the pandemic-related moratoriums lifted. We meet with clients daily via Zoom. Our virtual model was adopted during the pandemic to serve clients remotely but has stuck around since it became a more efficient way to provide transactional services to our clients. Many of our clients are also juggling full-time employment while they get their businesses up and running, so having the WESTERN NEW YORK LAW CENTER
convenience of logging onto a meeting with our clinic during a lunch break at work allows them to meet with us during business hours. Our virtual model has also allowed us to serve folks who reside outside of WNY and in other counties across the state, including downstate. The SBLC recently relaunched public drop-in clinics in July of this year, which had been on hold since March of 2020. We host four drop-in clinics per month with a few of our small business partner organizations at various locations around Western New York. Our public drop-in clinics allow visitors to meet with an attorney on site to receive legal assistance with their business. These clinics have been particularly helpful in reaching small business owners who may not know of all the resources available to them in WNY’s small business ecosystem. Our drop in clinics are held at the following locations on the following days/ times: 1) Westminster Economic Development Initiative (WEDI), 436 Grant Street, Buffalo, NY 14213, on the 1st Monday of the month from 1-3 p.m.; 2) Women’s Business Center at Canisius College, 2001 Main Street, Buffalo, NY 14208, on the second Wednesday of the month from 10 a.m.-12:00 p.m.; 3) The Exchange at Beverly Gray, 334 East Utica Street, Buffalo, NY 14208, on the third Wednesday of the month from 3-6 p.m.; and 4) the Small Business Development Center at Buffalo State College, Cleveland Hall, 1300 Avenue, Room 206, Buffalo, NY 14222, on the last Friday of the month from 10 a.m.-12:00 p.m. by appointment only (call 716-878-3573). For more information or to request services, please contact Neha M. Karambelkar, the Managing Attorney for the SBLC, at 716-855-0203 ext. 133 or at firstname.lastname@example.org. • “they receive additional non- legal assistance at critical times during their business life cycles..”
NEHA M. KARAMBELKAR Western New York Law Center
BAEC Bulletin | November/December 2022 | 17 Jeff Baase Named Defense Trial Lawyer of the Year; And Meghan Brown to Receive Civility Award Buffalo attorney Jeff Baase will receive the 2022 Robert M. Kiebala Defense Trial Lawyer of the Year Award, the highest honor bestowed by the Defense Trial Lawyers of Western New York (DTLAWNY), at the DTLAWNY’s Holiday Party and annual meeting on Wednesday, December 14, 2022 from 5:30- 8:30 at The Mansion on Delaware. The award is given to the attorney who best exemplifies the Association’s mission of “promoting the highest standard of trial conduct through member education and advocating the defense position in civil cases with the judiciary and where appropriate in the New York State legislature.” A founding partner of Rupp Baase Pfalzgraf Cunningham LLC, Baase has defended a wide variety of premises liability, product liability, automobile accident and construction cases during the past 30 years. He is a Fellow of the Litigation Counsel of America, and he has been recognized as one of Buffalo’s “Legal Elite” by Business First, as well as Upstate New York Super Lawyers. In addition, Buffalo attorney Meghan Brown will be receiving the 2022 Sherwood Civility Award, named by the DTLAWNY in honor of attorney Neil Sherwood whose commitment to his profession and volunteer work as a fireman made him a model among his fellow defense trial lawyers. Brown is a partner at Goldberg Segalla, and she has defended personal injury, construction, and professional liability cases for more than a decade. She is vice chair of her firm’s Civil Litigation and Trial practice group, co-chair of their Appellate Group, and she has been recognized in Upstate New York Super Lawyers. Also honored for their service will be outgoing DTLAWNY Directors, Florina Altshiler, Melissa Habberfield, and Christopher Poole, and President, William Kennedy; and membership will vote on new Directors for 2023, Victor Wright, Thomas Digati, and Andrew Kowalewski, as well as officers, Nancy Long (President), Sean Spencer (Vice President/President-elect), Thomas Kawalec (Treasurer), and Elizabeth Midgley (Secretary).•
18 | November/December 2022 | BAEC Bulletin
BAEC Bulletin | November/December 2022 | 19 New Cybersecurity, Privacy and Data Protection Category of CLE Credit and Attorney Requirement As you may have heard, the BAEC has pledged to make the Erie Institute of Law more responsive to the current needs of our members. Please read below about one of our first efforts. There is a new CLE requirement for New York attorneys. • Effective July 1, 2023 , you must complete 1 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of your CLE requirement. The total number of CLE credits that you must complete in your reporting cycle does not increase. • Experienced attorneys (admitted to the New York Bar for more than two years): If you are due to re-register on or after July 1, 2023 (birthday is on or after July 1st), you must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of your biennial CLE requirement. If you are due to re-register in 2023 but your birthday is before July 1st, you need not comply with the new requirement in 2023, but must comply in future biennial periods. Example: If your birthday is on June 30th and you are due to re-register in 2023, then you do not need to comply with the new requirement in 2023, even if you file your registration form on or after July 1, 2023. If you are due to re-register in 2024, or later, you must comply with the new requirement. • Newly admitted attorneys (admitted to the New York Bar for two years or less): If you were admitted to the NY Bar prior to July 1, 2023, you need not comply with the Cybersecurity, Privacy and Data Protection requirement in your newly admitted cycle, but must comply in future reporting cycles. Attorneys admitted to the NY Bar on or after July 1, 2023, must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of their newly admitted attorney CLE requirement.
• Earning Credit : You may start to earn CLE credit in this new category beginning on January 1, 2023.
If you would like to be involved in this new effort, please contact Alicia Quebral at email@example.com
20 | November/December 2022 | BAEC Bulletin Death & Taxes
Alford v. Katz, 2022 NY Slip Op 05397 (4th Dept., 2022) This case illustrates that no good deed goes unpunished. This is an action for legal malpractice brought by Plaintiff, as executor of the estate of her late father (“Decedent”), claiming that defendant attorneys were negligent in preparing Decedent’s Will. In 2006 Decedent and his fiancé entered into a prenuptial agreement in which the fiancé waived rights in Decedent’s retirement and deferred compensation accounts in return for Decedent’s promise to leave a Will containing a $1 million QTIP trust for is soon-to-be wife (“Wife”). The marriage took place, and in 2007 Decedent executed a new Will that include a QTIP trust for the Wife. In 2015, Decedent change the beneficiary designation on his retirement accounts to designate his Wife as beneficiary of Decedent’s contributions to the retirement accounts after their marriage. In 2017 Decedent signed a new Will prepared by Defendants, bequeathing to Wife $1 million reduced by testamentary substitutes including the retirement accounts of which she was the beneficiary. The new Will did not contain a QTIP trust for the Wife. Following Decedent’s death, Wife filed a claim against the estate for a $1million QTIP trust, per the prenuptial agreement. Plaintiff-Executor rejected the claim, and Wife commenced an action against Decedent’s estate. Plaintiff then sued Defendants, alleging that Decedent changed the beneficiary designation on his retirement accounts in exchange for Wife’s waiver of her right under the prenuptial agreement to receive the QTP trust, but Defendants negligently failed to have the Wife execute a written amendment or waiver to the prenuptial agreement. Defendants moved for summary judgment dismissing the complaint as premature because the Wife’s claim against the estate was still pending. Although the two actions were not consolidated, Supreme Court issued a decision and order resolving both actions. In the Wife’s action the court granted Wife’s motion for summary judgment, and ordered Plaintiff to fund a QTIP trust with $1 million. Supreme Court granted Defendants’ motion and dismissed the Plaintiff’s complaint. Plaintiff appealed. The Fourth Department unanimously reversed, denied Defendants’ motion, and reinstated Plaintiff’s complaint.
PETER J. BREVORKA Partner, Hodgson Russ LLP
JILLIAN E. BREVORKA Partner, Hodgson Russ LLP
BAEC Bulletin | November/December 2022 | 21
The Appellate Division held that Supreme Court’s grant of the wife’s motion for summary judgment, awarding the QTIP Trust, Plaintiff’s action for malpractice was no longer premature. Relying upon Schneider v. Finmann, 15 NY3d 306, the Fourth Department held that the Plaintiff as the personal representative of the decedent’s estate may bring a claim for legal malpractice alleging that Defendants were negligent in the estate planning for Decedent. The Court held that Defendants had failed to meet their initial burden of establishing that Decedent’s estate did not sustain any damages or that any damages were speculative. So, the Decedent gave his wife $1 million outright, yet she is still entitled to a $1 million QTIP trust, and the lawyers who drafted the Will got sued for not terminating the prenuptial agreement. A cautionary tale to all estate planning lawyers. IRS Notice 2022-53 The SECURE Act of 2019 made numerous changes to the rules regarding IRAs. One of those changes was to require that an inherited IRA from which the decedent was taking Required Minimum Distributions must be paid out within 10 years. Many experts interpreted the Act to provide that if a decedent died after his Required Beginning Date (now age 72), his designated beneficiary could withdraw the IRA at any time over the 10 years, and would not be required to take Required Minimum Distributions (RMDs). But. in February 2022, the IRS issued proposed regulations which, among other things, said that if the decedent died after his Required Beginning Date, his beneficiary must liquidate the IRA by the 10-year deadline, and the beneficiary must at least take RMDs in years one through nine as least as rapidly as the decedent was taking them. That proposed regulation brought a torrent of comme nt from tax professionals who did not read the SECURE Act as requiring RMDs In response the IRS issued Notice 2022-53. It continues the RMD/10-year requirement, but provides that in the case of designated beneficiaries who did not take RMDs in 2020 or 2021, they will not be subject to the 50% penalty tax for failure to take RMDs. They will still have to take the RMDs for 2020 and 2021 in 2023, but they will not be subject to penalties.
Resnick v. State of New York, 2022 NY Slip. Op. 51006(U) (Ct. Cl., 2022) This New York Court of Claims decision in regard to a wrongful death claim against the State of New York provides a detailed discussion of the jurisdictional necessity of appending a copy of Letters of Appointment of the fiduciary of the estate of the decedent to the Claim. In this case, the “Proposed Administrator” filed her claim without attaching Letters, because they had not yet been issued. As a result, the Claim was dismissed. Later, after Letters were issued, she filed another claim, but neglected to attach a copy of Letters. In response to a motion to dismiss the claim, the Administrator submitted a copy of Letters as part of her motion papers. But the claim was dismissed as untimely because it was not served with Letters attached, within 90 days of appointment of the estate’s fiduciary. In its decision, the Court of Claims noted that the requirements of the Court of Claims Act with regard to filing a claim within 90 days of appointment of the estate’s fiduciary, and attaching a copy of Letters to the claim, are strictly construed. Strict construction of the Court of Claims act is a precondition to the State’s waiver of sovereign immunity. •
22 | November/December 2022 | BAEC Bulletin
Committees of the Bar Association
Our committees are an integral part of the Association. We are incredibly thankful to our committee chairs for the hard work and time they put into their committees. We are also grateful to all our members who participate in these committees, striving to improve and strengthen the legal profession.
ALTERNATIVE DISPUTE RESOLUTION COMMITTEE Chair and Board Liaison: Katie L. Kestel Martin
The Alternative Dispute Resolution Committee educates attorneys and the public about alternative processes that exist for the resolution of disputes without resort to litigation, and the resulting benefits and/or risks of using any such ADR procedures. This goal is accomplished by CLE programs sponsored annually by the committee, by public education programs, and by various special projects. APPELLATE PRACTICE COMMITTEE Chairs: Erin A. Tresmond and Robert C. Brucato, Jr. | Board Liaison: Kara A. Addelman The Appellate Practice Committee focuses on the advancement and identification of issues of concern to members of the bar who are engaged in appellate practice in state and federal courts. AWARDS COMMITTEE Chair: Gayle T. Murphy The Awards Committee is tasked with accepting nominations and selecting recipients for awards for the Bar Association of Erie County’s two major awards events: Law Day and the Annual Awards Celebration. The awardee selections this Committee makes are then presented to the Board of Directors for approval. BY-LAWS COMMITTEE Chair: Michael A. de Freitas The By-Laws Committee provides interpretations of the By-Laws of the Association and drafts proposed amendments at the request of the Board of Directors. The CLE Advisory Committee oversees continuing legal education programs for the Erie Institute of Law. The Committee monitors and evaluates programs to ensure that high quality, effective and timely programs are offered to meet the professional education needs of lawyers in Western New York, and works to maintain the Institute's position as the primary provider of CLE in the surrounding legal community. COMMERCIAL LITIGATION AND BANKRUPTCY LAW COMMITTEE Chairs: Amber E. Storr and Daniel F. Brown | Board Liaison: Sarah M. Washington The Commercial Litigation and Bankruptcy Law Committee deals with current substantive and procedural issues concerning bankruptcy law and the bankruptcy courts and commercial and business litigation in both state and federal courts. The committee provides ongoing legal education to its members in these areas, and each year also presents both a Noonday lecture and a CLE seminar on current topics. The committee also serves as a liaison for the local bar to the United States Bankruptcy Court for the Western District of New York. CLE ADVISORY COMMITTEE Chair: Hugh M. Russ, III | Board Liaison: Carmen L. Snell
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