Volume 61, No. 2
The Bulletin is proudly sponsored by
Bar Association of Erie County Bulletin SEPTEMBER/OCTOBER 2022 | Volume 62 | No. 2
135 th Annual Awards Celebration October 12, 2022 | Seneca One Tower YOU ARE INVITED!
Hon. Trini E. Ross
Lawyers Helping Lawyers
Hon. Lisa Bloch Rodwin
Hugh M. Russ, III
2 | September/October 2022 | BAEC Bulletin
Bar Association of Erie County Bulletin Table of Contents The Features
Letter from the President BAEC 135th Annual Awards CLE Highlight: Unexample Courage In the Public Service: Neighborhood Legal Services From the Erie Institute of Law New Cybersecurity CLE Credit Requirement BAEC Committees and Committee Chairs for 2022-2023 Lawyers Helping Lawyers Committee to Resume In-Person Meetings Farewell to a Friend and Colleague Book Review from Hugh Russ The Case of a Lifetime 2022 Red Mass Offices of Attorneys for Children Introductory Training Webinar Notice of Public Hearings: 2022 Hearings on Pandemic Practices Lawyers for Learning Recognizes 2021-2022 Tutors
13 14 15 17 20 27 29 30 31 37 38 38 39 10 12 18 28 35 36 37 40 43 45 46
In Every Issue 3 6 9
BAEC Sponsors Member Assistance Program Upcoming CLE Programs Bench and Bar in The News BAEC New Members Death and Taxes Paralegal Corner: Paralegal Certification and Licensure In Memoriam Contributions to the Foundation Bulletin Submission Deadline Western District Case Notes BAEC Life Members and Contributing Members Classifieds Bulletin Advertisement Index
Bar Association of Erie County President Vice President Treasurer Jill K. Bond Timothy J. Graber Gayle T. Murphy Sarah M. Washington Anne M. Noble Greg Hirtzel Board of Directors
Deputy Treasurer Executive Director Director of Marketing & Communications, Editor of the Bulletin
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 | September/October 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 | September/October 2022 | BAEC Bulletin
Letter from the President
Ah, September in Buffalo. Many people who live here say that one of the things they love about Buffalo is that we experience four distinct seasons. Some may argue that Buffalo doesn’t experience a Spring—our long winters seem to melt into Summer, but I will save that debate for another day. I have always loved this time of year. We have many perfect days in a Buffalo summer. We also have many perfect autumn days, but each one seems to catch me by surprise and I appreciate them more. There are several signals that we have turned toward fall-- the smell of cinnamon pine cones and brooms in the vestibule of Wegmans; the need to reach for that sweater once the sun goes down. But the biggest signal of fall is the return to school. Last week, I had the opportunity to welcome the Law School Class of 2025 at one of their orientation events. The Bar Association co-sponsored a luncheon after the students had a tour of the Erie County Courthouse and heard from Court of Appeals Justice Shirley Troutman and Chief Administrative Judge Kevin Carter. It was so nice to once again collaborate with the Law School and to meet this class so early in their law school experience. We are proud to offer free membership to law students. We are certain that the students will experience the Bar Association’s offerings and community of lawyers and will transition to paid memberships once they graduate. In a couple of weeks, the Board will get together one evening and call each of those students to welcome them and to encourage them to actively engage by joining committees and attending events. We all benefit from the energy and diversity these students represent. A couple of things really struck me at this event. After Jenna welcomed our new members, she was approached by a female Asian student who told her that she had never met an Asian Woman Attorney before and that it meant so much to see someone that looked like her doing the work she aspired to do. She now has that role model as a mentor! This exchange reinforced to me the importance of the Bar Association’s focus on Diversity and Inclusion. I so hope that this student will stay in Buffalo and have a wonderful career and be another role model for future student members. In August, the Bar Association collaborated with the Minority Bar Association to hold the first Empire State Legal Diversity Job Fair. The event paired qualified diverse candidates with Western New York employers so that we can increase the representation of attorneys of color in Western New York. The event was chaired by Samantha White, President Elect of the Minority Bar Association, who said she became inspired to hold the event because she was frustrated with talking about the issues facing attorneys of color in our
JILL K. BOND President Bar Association of Erie County
BAEC Bulletin | September/October 2022 | 5
Bar Association of Erie County Committees As I was talking to these first year law students, I realized that I was a first year law student 40 years ago. As these bright eyed students are looking forward to a career in the law, I am looking forward too, but mostly I am looking back--back at a career that has brought so much to my life. The practice of law has brought me challenges, fulfillment, pride, friendships and a comfortable living. I am so very grateful. I have decided to dedicate my President’s messages to individuals who have had a special impact on my career. This message is dedicated to Robert community and wanted to start doing things that will address the problem. The event was a huge success. Samantha and her team worked tirelessly for the better part of a year, securing sponsorships, engaging 35 employers and close to 100 candidates from well beyond Western New York. We know that offers were made and hopefully accepted and more young lawyers of color will see the great opportunities here and WNY employers will experience the benefits of adding diverse candidates to their workplaces. As Sam White brilliantly said, “we need to stop looking for cultural fit and start thinking of cultural additions.” Thank you to Sam and her committee for all the hard work and teamwork. You really knocked it out of the ballpark.
DiVita. Bob is a self-described “country lawyer.” He had a solo general practice law firm. He took a chance and hired me as his law clerk after my first semester of law school and I stayed with him until I graduated. I learned so much from him. He seemed to handle everything --real estate, corporate law, divorces, wills and estates, personal injury, and criminal law. He actually was defending a homicide case when I joined him. It was amazing how much he knew about so many different areas of law. He worked tirelessly for his clients and they loved him. Many of his clients were his closest friends. He exhibited integrity in everything he did. Bob’s wife Doreen was his Legal Assistant. Their office was at their home on Maple Road in Williamsville. Together Bob and Doreen also showed me the beauty of a strong marriage and that co-workers can become family. I have stayed in touch with them over the years and my admiration for them has only grown over the years. Bob is mostly retired now but he will always be a person I think of when I consider all that is good about this profession.
With gratitude, Jill •
www.eriebar.org/Committees Our Committees have begun meeting for the Fall! Click the link below to view the calendar and request to join a new Committee!
BAEC Bulletin | September/October 2022 | 7 BAEC’s 135th Annual Awards to Be Held October 12 at Seneca One Tower The Bar Association is excited to announce the 135th Annual Awards Celebration! This year’s event will be on Wednesday, October 12, 2022 at 5pm and will be at the Seneca One Tower. A special thank you goes out to Nota as our Presenting Sponsor. President Jill Bond and Vice President Timothy Graber will be hosting the evening, presenting awards to six extraordinary people and organizations for the incredible work they have done in our community. The event is open to all. Registration is open and tickets can be purchased by visiting https://eriebar.org/events/annualawards/ . Following the presentation of our awards in the Seneca One Auditorium, there will time to mingle and connect with friends and colleagues along with drinks, carving stations, and passed hors d’oeuvres. We are excited to have local attorney and BAEC Board member, Katie Kestel Martin, showcase her talents on piano during this time as well! • Meet Our Award Honorees
LAWYER OF THE YEAR HON. TRINI E. ROSS United States Attorney of the Western District of New York
HON. JOHN T. CURTIN PROFILES IN COURAGE AWARD LAWYERS HELPING LAWYERS COMMITTEE of the Bar Association of Erie County Pictured: Tim Andruschat (Chair), David Gutowski (past Chair), Mary Moorman Penn (past Chair), and Ian Harrington (Vice Chair)
OUTSTANDING JURIST AWARD HON. LISA BLOCH RODWIN Erie County Family Court (ret.)
CHARLES H. DOUGHERTY CIVILITY AWARD JOEL DANIELS Managing Partner, Law Office of Joel Daniels
AWARD OF MERIT HUGH M. RUSS, III Partner, Hodgson Russ LLP
SPECIAL SERVICE AWARD SAMANTHA I.V. WHITE Staff Attorney, Legal Aid Bureau of Buffalo
8 | September/October 2022 | BAEC Bulletin
Congratulations to Stephanie J. Calhoun
Hon. Kevin Carter Tolulope F. Odunsi Dionne Williamson Glenae R. Garlock For their Exemplary Work 2022 Minority Bar Foundation Annual Awards
THE COMPANY OF FRIENDS. THE SUPPORT OF COLLEAGUES.
Learn More At: eriebar.org/foundation
BAEC Bulletin | September/October 2022 | 9
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.
4th Department Criminal Update Part 2 This program is being held in collaboration with the Monroe County Bar Center for Education September 19, 2022 via Zoom • 12:15pm - 2pm 2.0 CLE credits: Areas of Professional Practice (appropriate for all attorneys) $80 BAEC/MCBA Member, $120 Non-Member, $50 Legal Service Provider The CROWN Act: Reviewing the History of Hair Discrimination and Its Current Protections September 22, 2022 via zoom • 12pm - 1pm 1.0 CLE credit: Diversity, Inclusion & Elimination of Bias (appropriate for experienced attorneys) $25 BAEC Member, $65 Non-Member Public Speaking for Lawyers DATE TBA Via zoom • 12pm - 1pm 1.0 CLE credit: Skills (appropriate for all attorneys) $25 BAEC Member, $65 Non-Member Unexampled Courage: Sergeant Isaac Woodard and the Unknown Road to Brown v. Board of Education This program is co-sponsored by ABOTA Buffalo Chapter, Counsel Press, Erie Institute of Law, Paramount Settlement Planning, IMES National, and WBASNY WNY October 17 in person at the BAEC • 3pm - 5pm 1.5 CLE credits: Diversity, Inclusion & Elimination of Bias (appropriate for experienced attorneys) $50 BAEC Member, $80 Non-Member What’s Happening at the Workers’ Compensation Board: Your Workers’ Compensation Update This program is sponsored by Bell Chiropractic Injury & Pain October 21 in person at the BAEC • 8:45am-12pm 3.0 CLE credits: 2.5 Areas of Professional Practice, 0.5 Skills (appropriate for all attorneys) $75 BAEC Member, $140 Non-Member
Have Gavel Will Travel October 26 and 27 SAVE THE DATE AND WATCH FOR MORE DETAILS NYS Civil Practice and Procedure Update November 3 via Zoom • 9am - 12pm SAVE THE DATE AND WATCH FOR MORE DETAILS 68th Tax Institute November 5 in person at Buffalo Marriott Niagara • 8am - 5pm 8.0 CLE credits: Areas of Professional Practice (appropriate for all attorneys) Registration through 10/21: $275 Registration from 10/22-11/5: $300 Introduction to Native American Cultural Competency November 10 via Zoom • 12pm - 1pm 1.0 CLE credit: Diversity, Inclusion & Elimination of Bias (appropriate for experienced attorneys) $25 BAEC Member, $65 Non-Member Canadian Cottage Update November 16 via Zoom • 12-1pm 1.0 CLE credit: Areas of Professional Practice (appropriate for all attorneys) $25 BAEC Member, $65 Non-Member Full Day Matrimonial & Family Law Committee Seminar November 18 in person at the BAEC • 9am - 12pm SAVE THE DATE AND WATCH FOR MORE DETAILS Part 36 Receivership Training November 29 via Zoom • 9am - 12pm SAVE THE DATE AND WATCH FOR MORE DETAILS
CLICK TO VIEW CLE DETAILS AND TO REGISTER
RECENTLY ADDED PRE-RECORDED SEMINARS NOW AVAILABLE ONDEMAND The Empire Strikes Back Against NYSRPA v Bruen: What Attorneys Need to Know About Changes to NY State’s Firearms Law
Character & Fitness: The Impact of Question 26 on Bar Admission for Lawyers of Color 18th Annual WNY Bankruptcy Conference – Business Panel and Consumer Panel CLICK HERE TO PURCHASE AN ONDEMAND PROGRAM TODAY!
10 | September/October 2022 | BAEC Bulletin Bench and Bar In the News
Phillips Lytle LLP Partner Amanda L. Lowe has been appointed by New York State Governor Kathy Hochul to the Board of Trustees for SUNY Erie Community College (ECC) for a term that extends through June 30, 2025. Ms. Lowe is the co-leader of Phillips Lytle’s Education Practice and is a member of National Association of College and University Attorneys (NACUA). She serves as a chief legal advisor to educational institutions and affiliated entities on both overall strategic initiatives and day-to-day operations. Her expertise in representing private secondary and higher education institutions regarding board governance, compliance, labor and employment matters, internal investigations (including Title VII and Title IX), student affairs and conduct, housing policies and risk management, makes her well-positioned to fulfill the duties of the Board of Trustees. Phillips Lytle LLP Managing Partner Kevin M. Hogan has been appointed to the Erie County Bar Association Volunteer Lawyers Project (VLP) Board of Directors. VLP provides free civil legal services to low income individuals and small not-for-profits in Western New York. In addition to his role as Managing Partner, Mr. Hogan concentrates his practice in the areas of environmental law, intellectual property and litigation. He counsels clients on environmental compliance with respect to investigations and enforcement proceedings by state and federal agencies, and on environmental issues arising in corporate and commercial transactions. Benjamin E. Mannion, Esq. has joined Long & Paulo-Lee, PLLC as an Associate Attorney for the Firm. Ben focuses on Civil/Commercial Litigation, General litigation, Business and Corporate law, Labor and Employment Law, Real Estate, Estate Planning, Probate, etc. Before joining Long & Paulo-Lee, PLLC, Ben was a Civil Litigator, and was also an Assistant District Attorney for Queens County, New York where he prosecuted misdemeanors and worked on criminal appeals. Phillips Lytle LLP is pleased to announce that they have hired Sean M. Donahue as part of its recently adopted aggressive growth strategy. Mr. Donahue is an associate in the firm’s Land, Environment & Energy Practice Group. He concentrates his practice on environment and energy law with a focus on environmental compliance, regulations, litigation and due diligence. His depth of experience includes handling matters involving CERCLA/Superfund, federal Brownfields program, Resource Conservation and Recovery Act, emerging contaminants, Risk Management Program, and underground storage tanks. Mr. Donahue previously served as an advisor to the Assistant Administrator for Land and Emergency Management at the U.S. Environmental Protection Agency. He received his J.D. from Florida State University and his B.S. from the University of Central Florida. Phillips Lytle LLP is pleased to announce that they have hired Lucy M. Berkman as part of its recently adopted aggressive growth strategy. Ms. Berkman is special counsel in the Family Wealth Planning Practice Group. She concentrates her legal practice in the areas of estate planning, estate and trust administration, Medicaid advisement and planning, accountings, kinship matters, wrongful death compromises and guardianship proceedings. She assists clients in the preparation of estate planning documents, including wills, trusts, powers of attorney, health care forms and living wills. Ms Berkman received her J.D. from the University of Miami School of Law and her B.S. from the State University of New York at Buffalo. Phillips Lytle LLP is pleased to announce that they have hired Elliott J. Ehrenreich as part of its recently adopted aggressive growth strategy. Mr. Ehrenreich joins the firm as a partner in the Corporate Practice Group, concentrating his practice on general corporate transactions, business acquisitions and financings, real estate development/construction projects, governance and health care matters. His broad base of expertise serves a diverse range of clients including businesses, franchises, physician groups and nonprofit entities in New York and Pennsylvania. Mr. Ehrenreich received his J.D., cum laude, from Duquesne University School of Law and his B.A., magna cum laude, from Gannon University.
BAEC Bulletin | September/October 2022 | 11
Bench and Bar In the News
Mark S. Nemeth joins Hurwitz Fine P.C. as a Member in the firm’s Toxic Tort/Environmental Law practice group. He brings significant experience representing manufacturers, distributors, and contractors with liability for asbestos-related claims. Mark also represents a wide variety of insureds including spray fireproofing contractors, pipe coverers, pump and valve manufacturers, and boiler and furnace manufacturers. Mark received his undergrad from State University of New York at Buffalo in 1987 and his J.D. from Cleveland State University, Cleveland-Marshall College of Law in 1993.
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 email@example.com . Talks, speeches (unless they are of international stature), CLE presentations, and political announcements are not accepted. HOW TO PLACE A BENCH & BAR ANNOUNCEMENT
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12 | September/October 2022 | BAEC Bulletin
Bar Association of Erie County NEW MEMBERS
The Bar Association of Erie County is pleased to welcome the following new members:
Romana Afroze Thomas E. Baines Alana M. Becker Jessica Choai
Michael J. Colletta John Michael Conti Alexandra Shay Heinz Alain Jeff Ifrah William Justyk Anoop S. Kahlon Tyler Derek Myszka Ron Oakes Julia Anne O’Sullivan Zarianna Peterson
Shakora Purks Joshua Scrivani Brianna Shareef Suzanne Starr Stuti Tambar Timothy M. Toy
BAEC Bulletin | September/October 2022 | 13
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Unexampled Courage: Sergeant Isaac Woodard and the Unknown Road to Brown v. Board of Education Monday, October 17, 2022 – 3-5pm In-person at the BAEC Sunroom Auditorium. Registration space is limited. Program may be expanded to include a virtual option to accommodate demand. 1.5 CLE credits: Diversity, Inclusion & Elimination of Bias (appropriate for experienced attorneys) In 1951, United States District Judge, J. Waites Waring, sitting on a 3-judge panel in the Charleston Division of the South Carolina District Court, issued a powerful dissent in Briggs v. Elliott , where, then NAACP lead counsel, Thurgood Marshall, directly challenged the constitutionality of the” separate but equal” doctrine enunciated in Plessy v. Ferguson . In so do, Judge Waring ensured a direct appeal to the United States Supreme Court. Although Briggs was the first such case to arrive in our highest tribunal the Court, for reasons known only to it, chose Brown v. Board of Ed. as the lead case. In his book, Unexampled Courage , United States District Judge, Richard Gergel, traces the paths walked by both Judge Waring and Thurgood Marshall that led both to this direct Constitutional challenge. Judge Gergel’s presentation will outline that state of race relations in the South beginning with the end of World War II, the blinding of Sgt. Isaac Woodard by a southern police officer, and effect it had on President Harry S Truman and ultimately, how the trial of the officer who blinded Sgt. Woodard became a turning point in the outlook of Judge Waring, the descendant of a Confederate soldier, resulting in his transformation from a member of Charleston society to being the most reviled man in the white South, and an ally of the civil rights movement in the 1950; a fact not lost on Marshall as he brought matters before the Judge. Judge Gergel’s presentation will outline that state of race relations in the South beginning with the end of World War II, the blinding of Sgt. Isaac Woodard by a southern police officer, and effect it had on President Harry S Truman and ultimately, how the trial of the officer who blinded Sgt. Woodard became a turning point in the outlook of Judge Waring, the descendant of a Confederate soldier, resulting in his transformation from a member of Charleston society to being the most reviled man in the white South, and an ally of the civil rights movement in the 1950; a fact not lost on Marshall as he brought matters before the Judge. Following the presentation, members of the Federal Judiciary will join Judge Gergel in a panel discussion and receive questions from those in attendance. Welcome and Introductions: Michael F. Perley, Esq., ABOTA Buffalo Chapter, National Board Representative Larry E. Other Waters, Esq., President, Minority Bar Association of WNY Speaker: Hon. Richard Gergel, Judge of the U.S. District Court for the District of South Carolina Following the presentation, members of the Federal Judiciary will join Judge Gergel in a panel discussion and receive questions from those in attendance. CLICK TO REGISTER UNEXAMPLED COURAGE Sergeant Isaac Woodard and the Unknown Road to Brown v. Board of Education Monday, October 17, 2022 – 3-5pm In-person at the BAEC Sunroom Auditorium. Space is limited. 1.5 CLE credits: Diversity, Inclusion & Elimination of Bias In 1951, United States District Judge, J. Waites Waring, sitting on a 3-judge panel in the Charleston Division of the South Carolina District Court, issued a powerful dissent in Briggs v. Elliott, where, then NAACP lead counsel, Thurgood Marshall, directly challenged the constitutionality of the” separate but equal” doctrine enunciated in Plessy v. Ferguson. In so do, Judge Waring ensured a direct appeal to the United States Supreme Court. Although Briggs was the first such case to arrive in our highest tribunal the Court, for reasons known only to it, chose Brown v. Board of Ed. as the lead case. In his book, Unexampled Courage, United States District Judge, Richard Gergel, traces the paths walked by both Judge Waring and Thurgood Marshall that led both to this direct Constitutional challenge.
14 | September/October 2022 | BAEC Bulletin In the Public Service
Don’t Dread Health Insurance Enrollment, Navigate It! BY DANIELLE DUNLAP, CLAIRE LUNDERMAN, AND VERA VENKOVA Finding health insurance, choosing health insurance options, and dealing with health insurance-related issues are tedious and often frustrating tasks that most of us try to avoid as much as possible. The New York State of Health Marketplace has been around for a few years, created as a space where people can find affordable health insurance options. Unfortunately, many people still don’t know that they or their loved ones can qualify for enrollment, e.g., adult children aging off of parental health insurance. One of the reasons for this may be the difficulty in navigating all the available options and programs. Neighborhood Legal Services can help—for FREE! Neighborhood Legal Services’ Health Insurance Navigators provide assistance to the public when choosing affordable health insurance through the New York State of Health Marketplace, regardless of client income. Enrollment assistance and the information that Navigators provide is unbiased and FREE. Anyone can benefit from these services since there are no income or asset limits (yes, self-employed attorney, you heard us right – Neighborhood Legal Services would love to take this off your never- ending “to do” list and assist you as well). Navigators provide information about health insurance options that include Qualified Health Plans, Medicaid, Child Health Plus, and Essential Plan, about the availability of Advanced Premium Tax Credits that may help lower the cost of monthly premiums, and so much more. For example, did you know that you may be eligible to enroll your child(ren) in Child Health Plus even if you are offered employer-based insurance? Doing so may lower your employee contribution and would likely cost less because of the small or no out-of-pocket costs when accessing care with Child Health Plus. There are many categories of people who can take advantage of health insurance enrollment, including self-employed individuals, those employed part-time or who otherwise do not qualify for insurance through their employer, and those looking to retire, but who are not yet Medicare eligible. NEIGHBORHOOD LEGAL SERVICES
Navigators program, Neighborhood Legal Services’ Community Health Advocate Program assists with an array of health insurance issues including coverage denials, representation in fair hearings, medical bill collection, subsidy programs to assist with health insurance costs and premiums and many others—for FREE, with no client income restrictions. Many people are not aware of the programs in place, such as the Medicare Savings and the Medicaid Buy-In programs to save costs on premiums and spenddowns. Neighborhood Legal Services’ Community Health Advocates are happy to assist anyone with health insurance-associated problems. Neighborhood Legal Services’ Navigators and Community Health Advocate programs focus on Erie, Niagara, Wyoming, Genesee, and Orleans Counties, but our Navigators also do a lot of work in Chautauqua County and can assist anyone in New York State. If you or anyone you know could benefit from Neighborhood Legal Services’ Navigator or Community Health Advocate programs, please contact us at (716) 847-0650. • “Enrollment assistance and the information that Navigators provide is unbiased and FREE.”
DANIELLE DUNLAP Neighborhood Legal Services
CLAIRE LUNDERMAN Neighborhood Legal Services
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BAEC Bulletin | September/October 2022 | 15
FROM THE ERIE INSTITUTE OF LAW
Two Buffalos BY HUGH M. RUSS, III Shortly after May 14, I was asked to participate in a podcast about the legal implications of the racist murders. The first question - “describe Buffalo for our listeners” - caught me off guard. I scrambled, and I tried to capture the reality many face on a daily basis. “There really are two Buffalos,” I said, “one for the haves, and one for the have-nots.” I proceeded to explain that the division was largely racial (Black- White) and geographic (East side vs. the rest of the city). I related that the shootings had occurred at the only grocery store on the predominately Black East side of Buffalo. To reveal this reality to listeners around the country disturbed me. I felt as if I were exposing a hidden secret, something shameful. In the weeks that have followed, I have considered our role in creating and sustaining the two Buffalos. And, I began to wonder whether ways exist to unite the disjointed parts. Some of this musing - along with discussions involving Anne Noble and Jill Bond - involved our planned transformation for the Erie Institute of Law. We have a program of seminars scheduled for the fall, and we are actively planning other educational programs and activities. I would request that you stay tuned, as things are evolving rapidly. Remembering Bishop Desmond Tutu’s proverb (how do you eat an elephant? Small bites), I have been trying to think of simple ways in which we can cross the divide, places where a bridge already exists. I recently met a friend for lunch on Food Truck Thursday at the Buffalo Niagara Medical Campus. The BNMC has created a park-like area with tents where people can gather, eat and drink, and even play corn hole. The area allows all BNMC employees to mix and mingle, from C-Suite to
maintenance. During my lunch, I learned that the vast majority of hourly workers at the BNMC, Kaleida, UB Medical School, and Roswell are people of color. In other words when we go to one of the BNMC facilities, which is increasingly more frequent, at least for me, the two Buffalos are likely to personally interact. Pay attention. Be aware. Talk to those who help you. Be grateful. The other small bites we all seem to be taking right now involve our cheering for the Buffalo Bills. I have seen more Bills shirts downtown in the last few weeks than I have ever. (I have even seen some interesting Bills tattoos - but I will save that discussion for later). Bills fans cut across all racial lines and income levels. If I am at the stadium formerly known as the Ralph (especially if I have been tailgating), and the Bills score, I hug and high-five everyone around me. It doesn’t matter what they look like or where they live. When the Bills win, everyone is my long-lost out- of-town relative in for a wedding. Let’s celebrate. I know I am not alone. Why can’t we live with that same spirit of mutual interest on a daily basis? We all share the same dream. While there may be two Buffalos, we don’t have to accept it. •
HUGH M. RUSS, III Dean Erie Institute of Law
16 | September/October 2022 | BAEC Bulletin
ERIE INSTITUTE OF LAW Address Disparity, Lead Inclusively: Fall ’22 CLE Learning Challenge The CROWN Act: Hair Discrimination Ban Thursday, September 22 • 12pm - 1pm • Virtual Program Unexampled Courage Sergeant Isaac Woodard and the Unknown Road to Brown v. Board of Education Monday, October 17 • 2pm - 4pm • In-Person Program Introduction to Native American Cultural Competency Thursday, November 10 • 12pm - 1pm • Virtual Program 1 CREDIT 2 CREDITS 1 CREDIT
CLICK TO REGISTER FOR THESE PROGRAMS
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 Mary Kohlbacher at email@example.com or by telephone at 716.852.8687.
BAEC Bulletin | September/October 2022 | 17 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.
The New York State Continuing Legal Education Program Rules are being amended to:
(a) add Cybersecurity, Privacy and Data Protection as a new category of CLE credit - 22 NYCRR 1500.2(h) and
(b) require experienced and newly admitted attorneys to complete at least 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of their CLE requirement.
Providers may issue New York CLE credit in Cybersecurity, Privacy and Data Protection to attorneys who complete courses in this new category on or after January 1, 2023. Beginning on July 1, 2023, both experienced and newly admitted attorneys will need to comply with the 1-credit requirement in the Cybersecurity, Privacy and Data Protection category of CLE credit. The Erie Institute of Law is committed to providing our members with relevant continuing legal education programs that increase competency and fulfill the requirements of the MCLE Board. Cybersecurity is obviously more important than ever for law firms. The Erie Institute of Law will aim to coordinate programs that provide an understanding of threats to the critical infrastructure of law firms, along with recommendations you can use to protect yourself, your firm, and your clients.
If you would like to be involved in this new effort, please contact Mary Kohlbacher at firstname.lastname@example.org.
18 | September/October 2022 | BAEC Bulletin Death & Taxes
Ehlenfiled v. Kingsbury , 206 A.D. 3d 1671 (4th Dept., 2022) This case contains several fascinating legal nuggets. Decedent was survived by his brother Richard, who was named executor of decedent’s Will. The Will left a parcel of real property to the Plaintiff. However, the estate lacked sufficient liquid assets to pay debts, funeral and administration expenses. With the knowledge and alleged consent of the Plaintiff and her first two attorneys, the executor sold the real property to defendant. After satisfying the mortgage on the property, the executor put the net proceeds of the sale in the estate account and waited for the seven-month creditors’ period to pass. After that period expired, the executor asked Plaintiff through her then-attorney, not one of the two original attorneys who were involved in the agreement, to sign a release for the balance of the cash. Plaintiff refused to sign the release and commenced the within action, seeking a declaration that the defendants had no interest in the property, and for costs and legal fees. Plaintiff and defendants each moved for summary judgment. Supreme Court denied Plaintiff’s motion, granted defendants’ motion, dismissed the complaint, and declared the deed to the property valid and that defendants are the owners of the property free and clear from any claim by Plaintiff. In the Appellate Division, Plaintiff argued that because of the specific devise of the property to her in the Will, title to the property vested in her at the moment of death. The Appellate Division agreed that title had vested, but that vesting was subject to the executor’s power to sell the property to satisfy the estate’s debts and other obligations. But, the Court pointed out that the executor cannot sell specifically devised property pursuant to EPTL 13-1.3(c) without leave of the Surrogate’s Court [EPTL 11-1.1(b)(5)(E)]. Unfortunately, the executor did not seek Surrogate’s permission before selling the property to the defendants. However, the Appellate Division concluded that the sale was valid because the Plaintiff and her first two attorneys affirmatively consented to the sale. The Court noted that the Plaintiff’s consent to the sale was evidenced by the terms set forth in various e-mails and text messages exchanged between Plaintiff, the executor and their respective attorneys. It is well established that “e-mails exchanged between counsel, which contain their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds” and can be the basis of a binding agreement (Williamson v Delsener, 59 AD3d 291, 291, 874 N.Y.S.2d 41 [1st Dept 2009]). 206 A.D.3d 1671 Plaintiff claimed that her initial two attorneys in agreeing to the sale either acted without her knowledge or were “tricked” into agreeing to the sale. While such questions of credibility are often an issue of fact for trial, the Court noted that there are instances where credibility may be determined as a matter of law. The Court concluded that the plaintiff’s self-serving statements were contrary to all of the other evidence, including Plaintiff’s own prior messages consenting to the sale. Further, the Court held that defendants had established on their cross motion that they are bona fide purchasers for value and, as such, are entitled to summary judgment. Plaintiff contended that the defendants had a duty to inquire because the sale was consummated via an executor’s deed.
PETER J. BREVORKA Partner, Hodgson Russ LLP
JILLIAN E. BREVORKA Partner, Hodgson Russ LLP
Plaintiff argued that the deed was void ab initio. The Appellate Divison held that
BAEC Bulletin | September/October 2022 | 19
the deed was not void ab initio because it was not a forgery nor was it obtained by false pretenses. At most the deed was voidable, and the defendants as bona fide purchasers for value were protected against rescission. The defendant-purchasers were represented on the appeal by a title company, and their purchase was upheld. But, the entire matter would have been less heartburn-producing if the executor had obtained the required court approval for the sale, or if the defendants has insisted that the Plaintiff join in the deed, rather than relying upon text messages and e-mails by Plaintiff’s attorneys, apparently agreeing to the sale. Matter of Reich , 2022 NY Slip Op 04446 (4th Dept. 2022) This estate litigation raised interesting statute of limitations issues. Decedent and his sons formed a corporation in 2011. Decedent removed funds from the corporation, and later acknowledged that some of those funds belonged to his sons. Decedent died in 2018, without having returned the funds to his sons. Decedent left a Will leaving his entire estate to his wife. In 2019 the sons filed claims against the estate for unjust enrichment and for money had and received. The executor moved to dismiss, asserting that the claims were time-barred. The Erie County Surrogate determined that the claims were subject to a six-year statute of limitations, and that the decedent’s acknowledgment that he owed his sons the money in sworn deposition testimony in 2014, re-started the statute of limitations, so that the claims were timely filed. The Appellate Division unanimously reversed and dismissed the claims. The executor argued that the claims did not state a claim for unjust enrichment. The Fourth Department rejected that argument, but held that even if the claims have a six-year statute of limitations, the statute starts to run upon the occurrence of the wrongful act giving rise to a duty of restitution. The claim accrued when the decedent removed the funds in 2011. The claim for money had and received also had a six-year statute of limitations, which accrued on the date the decedent withdrew the money. That claim was also time-barred when the sons filed their claims in 2019. Thus, the Court held, the burden then shifted to the sons to prove that there was any question of fact that tolled the statute of limitations or made it otherwise in applicable. The tolling provision upon which the Surrogate relied is General Obligations Law §17-101, which in pertinent part provides: “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules.” The Court noted that the sons did not allege any contract with the decedent. Rather, they alleged claims sounding in “quasi- contract”, which the Court said is not a contract at all. The quoted statute only applies if there is competent evidence of a new or existing contract, which there was not in this case.
Alante v. Maika , 206 A.D.3d 1563 (4th Dept., 2022) This 3-2 decision raises some troubling issues about attorney-in- fact conflict of interest. In 2010 Decedent executed a Power of Attorney authorizing five of his 12 children to act on his behalf with respect to various transactions, including real estate transactions, if a majority of his agents agreed to the transaction. His son, Philip, was one of the five agents named in the Power of Attorney. The Power of Attorney did not authorize the agents to make major gifts on Decedent’s behalf. In March 2017 Philip and two siblings, acting in their capacity as attorneys-in-fact, conveyed Decedent’s home to Philip and another sibling as joint tenants, retaining in decedent a life estate. Philip and the other sibling who received the home were the primary caregivers for decedent, who suffered from severe disabilities in the years preceding his death in July 2017. Following Decedent’s death, Petitioner was appointed administrator of the estate, and commenced a proceeding in Supreme Court alleging that the transfer was improper, and that the property should be delivered to the estate. Respondents moved to dismiss. The trial court denied their motion, and sua sponte granted summary judgment on the Petition and set aside the deed. The trial court concluded the transfer was an improper gift, relying on the presumption that where parties are related, services were rendered in consideration of love and affection, without expectation of payment. However, the majority of the Appellate Division found clear, convincing and satisfactory evidence that there was an agreement that the services should be compensated. The two agents who also participated in the deed gave affidavits in which each said that the transfer was intended to compensate respondents for their continued care of Decedent and that respondents’ services allowed Decedent to remain in his home. The Court held that rebutted the presumption and established as a matter of law that the transfer of property was not a gift The two dissenting Justices took the position that when the vote of the attorney-in-fact child, who stands to receive the alleged compensation, is necessary to approve the transfer, that child must rebut the presumption with evidence of the parent’s intent to transfer the property as compensation. •
20 | September/October 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
Business | Employment | Personal Injury | Municipal | Insurance Coverage Litigation is a useful tool for solving disputes, but not the only one. Mediation and Arbitration can offer creative and cost-effective alternative methods to successfully bridge differences between parties. Our mediation attorneys possess the right skill, respect, and experience to serve as effective and impartial neutrals. Resolve your clients' differences in the Hurwitz Center for Alternative Dispute Resolution in the Liberty Building, offering multiple conference and caucus rooms for any size mediations, or virtually through an online meeting with our attorneys.
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Andrea Schillaci, Esq. Amber E. Storr, Esq.
BAEC Bulletin | September/October 2022 | 21
Committees of the Bar Association
COMMITTEE FOR THE DISABLED Chairs: Kenneth R. Hiller and Ida M. Comerford | Board Liaison: Kelly M. Barrett Sarama The Committee for the Disabled serves the interests of persons with disabilities by: 1) educating the legal community about the special needs of the disabled; 2) encouraging the legal representation of the disabled; 3) advocating for accessibility of services; and 4) advocating for the rights of disabled persons by monitoring legislative and judicial trends. COMMITTEE ON EMINENT DOMAIN AND TAX CERTIORARI Chair: Mark R. McNamara | Board Liaison: Peter J. Crotty The Committee On Eminent Domain and Tax Certiorari updates members on changes in the law and procedures in the fields. The committee invites guest speakers to meetings and produces periodic CLE seminars for Bar members. COMMITTEE ON VETERANS' & SERVICE-MEMBERS' LEGAL ISSUES Chair: Anthony J. Kuhn | Board Liaison: Stephen C. Earnhart The committee will create a network of lawyers knowledgeable in veteran and service members' law and produce programs and publish articles to keep attorneys abreast of relevant legal issues. The committee will also coordinate community outreach to increase awareness of legal issues particular to veterans and service members. COMMITTEE TO ASSIST LAWYERS WITH DEPRESSION The Committee will coordinate, assist and support activities and resources dedicated to assisting lawyers in the Association who suffer from depression.
DIVERSITY & INCLUSION COMMITTEE Chair: Stephanie J. Calhoun | Board Liaison: Jamila A. Lee The mission of the Diversity & Inclusion Committee is: (1) to educate our legal community concerning the importance of racial equity, diversity, and inclusion; (2) to support sustainable programs that foster, build, and develop a diverse legal community; and (3) to ensure the Bar Association of Erie County promotes inclusion and provides significant opportunities for personal and professional growth for all. CRIMINAL LAW COMMITTEE Chairs: Nora B. Robshaw and Amber R. Poulos | Board Liaison: Stephen C. Earnhart The Criminal Law Committee are attorneys primarily engaged in criminal practice, both defense and prosecution, who consider matters which impact on the criminal justice system and the practice of criminal law. The committee considers matters referred to it by the Board of Directors. The committee also presents CLE programs through the Erie Institute of Law and provides lecturers for the Stop-DWI assemblies.
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22 | September/October 2022 | BAEC Bulletin
Committees of the Bar Association
ELDER LAW COMMITTEE Chairs: Kelly Barrett Sarama and Elizabeth A. Ingold | Board Liaison: Kelly Barrett Sarama The Elder Law Committee shares information among members and the public regarding issues of major concern to the elderly and practitioners representing them. Such issues include access to health care, Medicaid, asset planning, housing, community resources and institutional placement, pension benefits, health care decision making, private and Medicare health insurance, administrative proceedings, attorneys' fees, veterans' benefits, and exploitation of the elderly. ENVIRONMENTAL LAW COMMITTEE Chair: Henry A. Zomerfeld | Board Liaison: Anne K. Bowling The Environmental Law Committee provides environmental practitioners and other attorneys with a forum for discussion of current environmental legal trends, DEC/EPA regulatory, statutory, and enforcement initiatives, and current or emerging case law. It also provides education and community/academic outreach programs. The committee has frequent speakers on a wide variety of environmental topics. The Federal Practice Committee fosters an ongoing dialogue with the members of the federal judiciary who sit in this district. Each fall, the committee holds a dinner attended by all district, magistrate and bankruptcy judges from both Buffalo and Rochester. Meetings often consist of an informal discussion with one of the members of the federal bench. The committee provides regular input with respect to proposed changes to the Local Rules of Practice for the district, and conducts one major seminar each year. HISTORY COMMITTEE Chair: Michelle Parker | Board Liaison: Gayle T. Murphy The History Committee is dedicated to the publicizing and preservation of the rich history of the Western New York legal community. FEDERAL PRACTICE COMMITTEE Chair: Timothy J. Graber | Board Liaison: Maura O’Donnell
HUMAN RIGHTS COMMITTEE Chairs: Heather R. Abraham and Sharon Nosenchuck | Board Liaison: Sharon Nosenchuck The Human Rights Committee is concerned with human rights of people. In the past, the committee has examined the conditions of local jails, followed local cases that have human rights implications and heard from experts on the problems of refugees. INTELLECTUAL PROPERTY, COMPUTER AND ENTERTAINMENT LAW COMMITTEE Chairs: Melissa N. Subjeck and Nathaniel W. Lucek | Board Liaison: Anne K. Bowling Intellectual Property, Computer and Entertainment Law Committee shares information about contract issues in music, film and sports industries; publicity rights; Internet and computer law issues; copyrights; trademarks; patents; trade secrets; and unfair competition. About half of each meeting is devoted to a presentation from a committee member or guest speaker on a current topic of legal interest.
ARBITRATE OR MEDIATE YOUR CASE
Since 2001, I have been honored to have been chosen to serve as a mediator or neutral arbitrator in over 3,000 claims which were pending in our court system. The vast majority of the non-binding mediations were successfully resolved. In addition to having over 30 years of experience in the litigation and trial of personal injury claims, I have lectured on behalf of the Bar Association of Erie County’s Erie Institute of Law and have given in-house presentations on
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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