How to Lose a Client in 10 Steps

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VOL. 80 | NO. 6
How to Lose a
Client in 10 Steps
Don’t turn a promising relationship
into a one-off representation
by Richard B. Friedman
and Carla M. Miller
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NYSBA Journal | July/August 2008 | 3
“Helping Lawyers,
Helping Clients”:
The Wrongfully Convicted
s you know from my first
President’s column, the theme
I have chosen for the coming
year is “Helping Lawyers, Helping
Clients.” I decided to devote this column to a problem with which we
have become far too familiar of late:
the plight of innocent persons who
served time in prison for crimes that
they did not commit. This is an issue
that affects not only those wrongfully convicted but also their families,
the lawyers who represent them, the
criminal justice system and, in a larger
sense, our society.
The number of exonerations in New
York and elsewhere undermines the
belief that the criminal justice system
will protect the innocent. With increasing frequency, the media have reported not only about the innocent who
have served time in prison for crimes
that they did not commit, but also
about those who committed the crimes
who escaped prosecution. When this
happens with regularity – more than
200 people have been freed across the
country – there is need to take a step
back and review our criminal justice
system. Most of the exonerations have
resulted from advances in DNA identification, but many convictions are not
susceptible to such proof.
Since 1992, Barry Scheck and Peter
Neufeld have cut through a swath
of wrongful incarcerations nationwide
with the establishment of the renowned
Innocence Project at Cardozo Law
School. Anthony Capozzi was one of
their clients. In 1985, Capozzi was
charged with three rapes in Buffalo.
The rape victims told police that
their attacker was about 160 pounds.
Capozzi weighed 200 to 220 pounds.
None of the victims mentioned a prominent three-inch scar on Capozzi’s face.
All three victims identified Capozzi in
court as the attacker. In 1987, he was
convicted by a jury of two rapes and
acquitted of the third. He was sentenced to 35 years, and served 20.
Luckily, biological evidence had
been collected from two victims (and
stored in a hospital drawer). When
the evidence was tested in 2007 at the
request of Capozzi and his attorney,
sperm collected during the rape examinations of both victims matched the
DNA profile of another man currently
in state custody – and proved that
Capozzi could not be the rapist.
Capozzi was exonerated and
released from jail in April 2007. His
is one of many reported cases in New
York going back as far as 1984. It is
obvious that there will be many more
to come.
There are many causes for convictions going awry: problems with
eyewitness identification procedures;
the collection, testing and retention of
forensic evidence; and investigative policies – to name a few. In 2004, the State
Bar first addressed one issue involved
in convicting the innocent – false confessions and the manner in which
those confessions were preserved. Our
Criminal Justice Section and the New
York County Lawyers’ Association
presented to the House of Delegates a
joint resolution urging the Legislature
to enact laws requiring the videotaping
of custodial interrogations. The House
overwhelmingly passed the resolution,
and the issue became one of our legislative priorities.
A working group spearheaded by
Vincent Doyle was formed to draft
proposed legislation. Under Vince’s
leadership, the group successfully
advocated for the establishment of a
pilot project to tape confessions. In
2006, at the urging of Vince, and Ron
Kennedy of State Bar staff, the State
Legislature allotted $100,000 for a pilot
project in Broome and Schenectady
Counties. The Legislature appropriated an additional $100,000 in 2007, and
we are in the process of bringing two
additional counties on board. These
projects are under way, and we will
report on the results we receive from
the participating counties.
Not every conviction is infused
with the problems I have mentioned.
The greatest number of people who
are convicted fully deserve to be convicted. In addition, our prosecutors
often decline to prosecute cases where
guilt is not clearly established.
To date, no New York bar association
has undertaken a study, in one place,
of the relevant cases. One of the State
BERNICE K. LEBER can be reached at
[email protected]
NYSBA Journal | July/August 2008 | 5
Bar’s missions is to study and improve
the law. For this reason, I have asked
Barry Kamins to chair a Task Force
on Wrongful Convictions. The blue
ribbon panel of prosecutors, defense
lawyers, law school professors, civil
litigators, and representatives from the
police and the Fortune Society will
examine both reported and pending
cases of wrongful convictions in order
to identify the causes and to attempt
to eliminate them. The task force will
isolate the systemic causes that produced these injustices. By focusing on
current rules, procedures and statutes
that were implicated in each case, the
task force also will propose solutions
in the form of procedural changes and
You should also watch for a series
of hearings later this year in different
regions around the state that the task
force will be holding about the issue
of wrongful convictions. Part of the
mission of the task force is to provide
opportunities to educate the profession
and the public about the experiences of
those intimately involved in all phases
of the criminal justice system. The purpose of the hearings will be to expand
on and garner further views on the
causes of these erroneous convictions,
with the aim of ensuring that our laws,
policies and practices are designed
to reduce the risk of convicting the
innocent and increase the likelihood of
convicting the guilty.
I am hopeful that under the task
force leadership of Barry Kamins,
our Association will continue make
a systemic difference in the manner in which cases are prosecuted. I
started this column by intending to
share with you an issue that affects
our society, our profession and our
clients. Fundamentally, we became
lawyers in order to help others.
Through this task force, we may
shed light in an area deserving of
study and remain constant to our
mission as lawyers.
There are millions of reasons to do Pro Bono.
(Here are some.)
Each year in communities across New York State, indigent people face literally millions of civil legal matters without
assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their
homes. All without benefit of legal counsel. They need your help.
If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid
or pro bono program, we could make a difference. Please give your time and share your talent.
Call the New York State Bar Association today at
518-487-5640 or go to
to learn about pro bono opportunities.
6 | July/August 2008 | NYSBA Journal
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Mention Code: PUB0314
How to Lose a Client
in 10 Steps
By Richard B. Friedman and Carla M. Miller
any litigators in law firms devote a great deal of time and energy to developing new relationships and winning new corporate clients. Once the client
has signed on and a case is under way, however, too often outside counsel
concentrates so much upon the matter at hand that they neglect the client relationship.
While outside counsel may be unaware of this inadvertent lack of attention, the client
will certainly notice. This failure to communicate properly can easily turn a promising
long-term relationship into a one-off representation, no matter how favorable the outcome of the matter. Maintaining a good working relationship with in-house counsel is
the key to keeping that client.
In our careers as outside counsel with extensive experience in litigation and arbitration matters and as in-house litigation counsel for several major corporations, we have
seen how a lack of communication, as well as failing to meet in-house counsel’s expectations and ignoring the client’s corporate dynamics, can quickly ruin the relationship
between outside and in-house counsel. Whether through oversight, overwork or lack
of attention, these 10 common missteps will help to make sure that the client does not
come back.
1. Don’t Learn About the Client’s Industry, Business Lines and Internal Dynamics
While the facts of any given case may be plain enough for outside counsel within the
framework of the law, the context of the matter is often more important for the corporate client. The only way to assess the relative importance of a given matter for a
corporation is to understand how it fits in with the client’s industry, business lines and
internal dynamics. For instance, while the matter may involve a relatively small revenue stream, the business unit at issue could be a rapidly growing, high-profit line that
senior company personnel view as crucial to a strategic shift from older, low-margin
lines. By neglecting to develop an understanding of the client, outside counsel cannot
properly prioritize and will be unable to provide the value-added advice and counsel
that keeps a client coming back.
2. Don’t Discuss Projected Fees
Outside counsel will, of course, want to achieve the best possible result for the client
on any given matter. While focusing on winning a case, however, counsel may lose
([email protected])
([email protected]) are
co-chairs of the NYSBA’s Corporate
Litigation Counsel Committee of
the Commercial & Federal Litigation
Section. Mr. Friedman is a partner in
the Litigation Department at Dreier
LLP. Ms. Miller is the Senior DirectorLitigation Counsel, Business & Legal
Affairs, Universal Music Group.
NYSBA Journal | July/August 2008 | 11
sight of the overall context of the matter for the client.
Corporate executives assess most corporate-related projects in terms of revenues, costs, margins and income.
Litigation is an added, if unavoidable, cost that corporate clients want to keep as low as possible. They may
seek a fee cap; they may want to be notified when fees
for a given matter hit a certain level; or they may want
to take advantage of, or initiate, early settlement possibilities. Outside counsel may be confident that they are
performing excellent work for the client, but the price
of such services may simply be too high. Surprising the
client with a higher-than-expected bill is a surefire way
to strain, if not end, what might seem to be a thriving
business relationship.
3. Ignore the Client’s Billing Guidelines
Use of outside legal services, such as in a takeover contest, almost always represents a cost center for corporations that reduces the money available for more profitable
endeavors (the most notable exceptions being when a
corporation sues to gain advantage in a business dispute
or to recover a substantial amount of damages). While
litigation is not a cost that can be unilaterally reduced,
an overwhelming number of large corporations still seek
to manage litigation costs to the extent possible through
the implementation of billing guidelines. Outside counsel have the duty to adhere to those guidelines. If a case
demands an exemption from certain guidelines, counsel
should seek client approval for such exemption for a matter in its entirety or for a particular period of time; they
also should be able to provide a compelling argument as
to why those guidelines would be counterproductive in
the pending matter. Clients hate surprises, particularly
costly ones. Failing to pay attention to billing guidelines
will present clients with the kind of surprise they will not
wish to repeat.
4. Ignore the Client’s Staffing Preferences for
Outside Counsel
Like any other corporate department, the legal department has to live within its budget, or the head of the
department must be able to explain why it could not.
To make it easier to estimate legal costs and to keep fees
manageable, many companies have gone to a great deal
of trouble to develop staffing guidelines for outside counsel. For instance, the guidelines may specify that no more
than two attorneys can attend a deposition or conference
absent explicit client approval. If outside counsel believe
that the staffing guidelines are unreasonable in a given
case, they need to seek permission from the client before
departing from those guidelines so that in-house counsel
can make the case to their own management. Budgeting
for litigation is difficult enough for in-house counsel.
Making that job even harder is one way to quickly alienate a corporate client.
12 | July/August 2008 | NYSBA Journal
5. Change Key Personnel Without Telling the Client
The relationship between in-house and outside counsel is
built upon the interaction between people. The better the
communication between the client and outside counsel, the
stronger the relationship will be. A key part of that communication involves staffing. If outside counsel is contemplating staffing changes, counsel should communicate them to
in-house counsel. The client may have strong preferences as
to which attorneys are involved in certain aspects of a given
matter. In addition, the client may work very well with particular support staff and an unexplained personnel change
may cause a serious disruption to the relationship. Clients
often like the certainty gained by dealing with people they
know. Changing personnel with little or no notice adds
unnecessary uncertainty for the client and potential strain
to the relationship with outside counsel.
6. Don’t Answer Client Queries Promptly
One of the most important practices within the legal
profession is being responsive to clients. It is, after all,
their money, their time and perhaps their business that is
at stake in the matter. While it is not always possible to
respond to a client query right away due to various circumstances, outside counsel should make it their practice
to respond in as timely a manner as possible. When the
lead partner in the matter is unavailable, another lawyer
should be able to answer the client query or find someone
who can do so. If the client does not hear back in a timely
manner, he or she may assume that outside counsel is not
actively working on the matter, even if that is decidedly
untrue. A failure to communicate is one of the fastest
ways to jeopardize a client relationship.
7. Don’t Explore Settlement Possibilities
Everyone likes to win, but for corporations the definition
of winning generally comes down to the bottom line.
Viewed through that lens, an expensive win may be far
less desirable for a corporation than a less expensive loss or
settlement. Accordingly, outside counsel should not only
be focused on winning the case. When the final costs are
tallied, that success may be too expensive in the corporate
context. Besides the cost in money, corporations also must
account for the cost in time and disruption to day-to-day
business. Reaching an early settlement on the most favorable terms may not be as gratifying to outside counsel as
winning a difficult case in court, but winning at all costs is
not a winning strategy for keeping corporate clients.
8. Engage in Unduly Aggressive Tactics
No one wants a lawyer who is not going to aggressively
represent his or her interests. As U.S. Supreme Court
Justice Antonin Scalia said in a case involving the right to
choose defense counsel, “I don’t want a ‘competent’ lawyer. . . . I want to win.”1 No court, however, wants to have
to deal with overly aggressive counsel or to wade through
pages of gratuitously nasty correspondence. While it may
seem like an easy way to demonstrate a winning attitude
for clients, unduly aggressive tactics and offensive communications rarely, if ever, serve a client’s best interests in
any particular matter. Such behavior by outside counsel
only alienates judges and results in unnecessary costs,
which will eventually alienate the client.
9. Don’t Communicate Key Dates
In-house counsel need to be able to properly oversee litigation. To do that they may want to attend certain depositions and/or hearings to observe the interaction between
outside counsel, on the one hand, and adverse counsel and
the judge, on the other hand. Outside counsel should make
it a practice to always alert in-house counsel to key events
ahead of time so that the client can choose whether to
attend. Indeed, in-house counsel should be considered not
only as clients but as partners in the litigation and should
be kept abreast of all upcoming key dates. It is demeaning
to the client if in-house counsel are not given the opportunity to participate meaningfully in the client’s own case.
10. Send Working Drafts and Submit Briefs for
Review at the Last Minute
Unless they have specifically said otherwise, clients do
not want to see working drafts that are not ready to
be filed. In addition, in-house counsel have a host of
non-litigation responsibilities which may make it impossible to review briefs on very short notice. While briefs
must sometimes be turned around very quickly, outside
counsel should strive to give the client sufficient time
to review all draft papers. Outside counsel should also
devote the same care to invoices, which may be the only
work product the client sees for weeks. Failing to ensure
that work product is of the highest quality will not engender respect or consideration for future matters.
While it is easy enough to lose a client through these
10 steps, the key to keeping the client happy is, simply,
communication. Communication is the key to any good
relationship. Where potential issues arise, communication enables both parties to address these issues and
resolve them in a timely fashion. By making sure to
develop and maintain open lines of communication
with in-house counsel, outside counsel improve their
chances of achieving the best possible result for the client in the matter at hand and heighten their prospects
for future business.
Linda Greenhouse, Justices Hear Case on Right to Choose Defense Counsel,
N.Y. Times, Apr. 19, 2006.
NYSBA Journal | July/August 2008 | 13
DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New
York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the
Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on
the subject.
Don’t Cry Over Spilt Milk!
he Court of Appeals has returned
to, and decided, an issue left
open in its 2004 decision, MetLife
Auto & Home v. Joe Basil Chevrolet,1 in
Ortega v. City of New York,2 “whether
New York recognizes the tort of thirdparty negligent spoliation of evidence.
We conclude that the tort is not cognizable in this state.”3
After a van burst into flames, injuring the plaintiffs (the owner/driver
and passenger), the vehicle was towed
from the scene by a private towing
company, Ridge, at the direction of
police investigating the accident. It
was eventually brought to a police
facility in Queens.4 The attorney for
the passenger commenced a special
proceeding against Ridge and the New
York City Police Department to prevent destruction of the vehicle until it
could be inspected, and the trial court
issued an order granting the plaintiffs5
a period of 60 days to inspect the
vehicle and precluding its alteration or destruction until completion of the inspection. The preservation order was served on Ridge
and the police department. The
Legal Bureau of the police department promptly forwarded a written request, along with a copy of
the court order, to the property
clerk at Queens Point Auto Pound
directing preservation of the vehicle pending Peralta’s inspection.6
In an all-too-predictable series of
events, the vehicle was destroyed
before any inspection could take place.7
The plaintiffs did not commence an
action against the vehicle manufac-
14 | July/August 2008 | NYSBA Journal
turer, the prior owner, or the service
station that had serviced the vehicle
the day before the fire, electing instead
to sue the city of New York (“the City”)
on two legal theories: first, a claim of
negligent spoliation of evidence and,
second, civil contempt for violating the
court’s preservation order, rendering
it liable, the plaintiffs claimed, for all
damages flowing from the preservation order.8
The plaintiffs moved for summary
judgment on both claims:
In support of the motion, plaintiffs submitted the affidavit of an
accident reconstruction expert who
opined that the destruction of the
vehicle and resultant inability of
plaintiffs to inspect it presented a
fatal obstacle to determining the
cause of the fire or identifying the
responsible parties. As a result of
the City’s negligence, plaintiffs
contended they were precluded
from recovering damages from
any of the tortfeasors who were
ultimately responsible for their
The Court noted that the City
opposed the motion,
alleging that the negligent spoliation of evidence claim was inherently speculative because inspection of the vehicle might not have
revealed the cause of the fire, and
that destruction of the vehicle did
not necessarily preclude a viable
lawsuit against the true tortfeasors. The City’s expert, an automotive engineer, concluded that other
methods of investigation – includ-
ing the review of product design,
recall information, previous lawsuits, service records and the like –
might have revealed circumstantial
evidence regarding the cause of the
fire sufficient to support a lawsuit
against the vehicle manufacturer,
previous owner or the service station that inspected the vehicle.10
The trial court dismissed the contempt claim, reasoning that the claim
should be adjudicated by the court
that had issued the preservation order
in the special proceeding (a finding
that was not challenged), dismissed
the owner/driver’s claim for spoliation, since she had not been a party
to the special proceeding and had not
demonstrated that the City breached
a duty it owed her, but permitted the
passenger’s claim for negligent spoliation to proceed.11
The Appellate Division agreed that
the owner/driver’s claim was properly dismissed, and held that the passenger’s claim was not supportable after
a search of the record.12 The Court of
Appeals granted leave.13
The Court began with an overview
of the current state of spoliation law
in New York before turning to the
issue at hand, namely, the viability of a
third-party claim for negligent spoliation, a claim the Court did not have to
reach in MetLife since the plaintiff in
that action had failed to demonstrate
the existence of a duty owed by the
The Court next reviewed the origin of third-party claims for negligent
spoliation and the elements the plaintiffs proposed for the claim in New
York, including a rebuttable presumption that “but for” the spoliation, the
injured party would have prevailed in
pending or potential litigation.15
The Court’s analysis began with
whether a redress should exist for
every wrong:
In New York, while the desire
to provide an avenue to redress
wrongs is certainly an important
consideration underlying our tort
jurisprudence, the recognition that
there has been an interference with
an interest worthy of protection
has been the beginning, not the
end, of our analysis. “While it may
seem that there should be a remedy for every wrong, this is an ideal
limited perforce by the realities of
this world.”16
New York courts “also weigh other
judicial and social policy concerns in
determining whether to recognize new
tort causes of action.”17 While not condoning the violation of the preservation order, the Court said:
[W]e are not convinced that existing New York remedies are inadequate to deter spoliation or appropriately compensate its victims.
Based on a review of cases across
the nation, it appears that destruction of evidence by an entity without ties to the underlying litigation
is not a frequent occurrence. As
the California Supreme Court concluded when it ended its state’s
15-year experiment with the tort:
“If existing remedies appear limited, that may well be because third
party spoliation has not appeared
to be a significant problem in our
Would the plaintiffs be able to obtain
any redress?
As the present case demonstrates,
there will be unfortunate instances
when third parties with a duty
to preserve evidence but no connection to the underlying lawsuit
will negligently breach that duty,
presenting a situation where discovery sanctions are inadequate
to address the spoliation victim’s
loss. But even in this case, plaintiffs were not left without recourse.
Under our civil contempt statutory
scheme, a party who suffers a loss
or injury as a result of violation of
a court order can seek full compensation from the contemnor. The
City conceded at oral argument
that, had plaintiffs pursued their
contempt claim, they would – at
the very least – have been entitled
to monetary damages in an amount
necessary to reimburse them for
additional investigation, research
or expert expenses incurred in
attempting to prove the underlying negligence claim absent inspection of the vehicle.19
The Court acknowledged the plaintiffs’ argument that the contempt remedy was not adequate, since they
would not be able to recover for pain
and suffering and emotional distress,
which concededly were not caused by
the City, but determined that the speculative nature of the claim outweighed
the arguments for the creation of a
new tort:20
The same concerns about speculation are evident in this case.
Plaintiffs contend that examination of the vehicle would have
revealed either a design or manufacturing defect, improper maintenance or faulty repair services.
But it is also possible that the fire
caused so much damage to the
van that an inspection would fail
to disclose a conclusive cause. Or
an inspection could have resulted
in conflicting expert opinions with
differing views on causation, rendering plaintiffs’ success in a lawsuit dependent on which party’s
expert the jury found most credible. Finally, inspection of the vehicle might not have disclosed any
maintenance issues, manufacturing deficiencies or design defects,
thereby failing to supply a basis to
hold any of those defendants liable.
These are among the possibilities
that the finder of fact would have
to ponder were we to recognize
NYSBA Journal | July/August 2008 | 15
the spoliation of evidence cause of
action, with no meaningful way for
the jury to reliably resolve whether
the destruction of evidence was, in
fact, the cause of plaintiffs’ failure
to obtain damages for their burn
injuries from the original tortfeasors.
Plaintiffs’ claims further present
uncertainties with respect to recovery of damages. Plaintiffs assume
that, had the van not been destroyed,
they would have been able to
obtain a judgment in the full amount
of damages from a responsible
defendant with adequate funds or
insurance coverage. But even if
plaintiffs prevailed in the underlying lawsuit, this outcome would
not be assured. Had more than one
defendant been joined in the action
and multiple causes assigned to
the accident, liability might have
been apportioned among the tortfeasors without any one defendant
bearing responsibility for the total
judgment. If plaintiffs obtained
a judgment against the original
tortfeasor or tortfeasors, there is no
guarantee they would have collected damages in full. The complexities inherent in any multiple party
negligence action would be compounded in a spoliation claim since
litigation emphasizing the impact
of destruction of evidence would
afford the jury no reasonable means
of determining how liability might
have been apportioned among
tortfeasors in the original litigation
or of assessing plaintiff’s own comparative fault, if any.21
The Court concluded its opinion
with another public policy reason for
denying recognition of the claim:
Recognition of the tort has the
potential to create significant liability for municipalities in New
York since these entities perform
a myriad of functions – including
towing and warehousing vehicles
involved in accidents – which
could give rise to spoliation claims.
We are not persuaded that it would
be sound public policy to create a
new tort that shifts liability from
responsible tortfeasors to government entities that serve as repositories of evidence that may or may
not be relevant in future civil cases.
Municipalities might prove unduly
attractive defendants, diverting the
focus of litigation away from the
tortfeasors who actually caused the
injury and resultant damages.22
A notable omission from the
Court’s opinion is any mention of the
Second Department’s 1998 decision in
DiDomenico v. C&S Aeromatik Supplies,
Inc.,23 where a claim by an injured
employee was allowed to proceed
directly against his employer where
the employer destroyed the instrumentality that caused plaintiff’s injuries,
along with records that might have led
to the identification of parties directly
responsible for the harm.24 Whether
any part of DiDomenico remains viable
is unclear.
1 N.Y.3d 478, 775 N.Y.S.2d 754 (2004).
9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007).
Id. at 73.
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Id. at 73–74.
Id. at 74.
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RICHARD L. O’ROURKE is a principal in the
law firm of Keane & Beane, P.C., and argued
the Riverkeeper appeal before the New York
Court of Appeals on behalf of the Respondent,
Glickenhaus Brewster Development, Inc. Mr.
O’Rourke received his B.A. from State University
of New York at Geneseo in 1971and his J.D.
from Pace University School of Law in 1981.
EDWARD J. PHILLIPS is a partner in the law
firm of Keane & Beane, P.C., and was the
principal drafter of the briefs submitted on the
Riverkeeper appeal. Mr. Phillips received his
B.A. from Hofstra University in 1989 and his
J.D. from Fordham University School of Law in
1994. Attorneys Alan I. Raylesberg and Thomas
E. Butler, of the law firm Chadbourne & Parke,
LLP, also served as counsel to the developer on
the appeal.
Riverkeeper v. Planning Board
of the Town of Southeast
The Court of Appeals Reminds Lower Courts Not to
Second-Guess SEQRA Determinations
By Richard L. O’Rourke and Edward J. Phillips
ince its adoption over 30 years ago, the New York
State Environmental Quality Review Act (SEQRA)1
has provided a procedural framework for ensuring
public participation in the land use and planning process.
SEQRA further requires government agencies to strike
a balance by permitting land development only when
potentially significant adverse environmental impacts
have been identified and mitigated to the maximum
extent practicable. Redress for those objecting to SEQRA
determinations is available under CPLR Article 78, and
thousands of such proceedings have been commenced
by disgruntled property owners, members of the public,
government agencies and public interest groups.
Last year, the Journal published an article titled “Is the
Public Being Protected? A Lead Agency’s Duty Under
SEQRA to Review Newly Discovered Information.”2 The
article suggested that many of our court decisions, including those issued by the Court of Appeals, often failed to
provide sufficient guidance as to when “newly discovered
information” was important enough to require a SEQRA
lead agency to reexamine a proposed action. One of the
18 | July/August 2008 | NYSBA Journal
main decisions profiled in the article was Riverkeeper,
Inc. v. Planning Board of the Town of Southeast,3 which was
issued by the Appellate Division, Second Department in
2006. That decision, however, has now been reversed by
the New York Court of Appeals.
The Court of Appeals’s seemingly unremarkable and
straightforward opinion in Riverkeeper upholds the Town
of Southeast Planning Board’s determination not to require
the preparation of a Supplemental Environmental Impact
Statement (SEIS) based upon alleged newly discovered
information and changed circumstances. Thus, the decision reverses the Appellate Division’s directive to the
Planning Board to prepare the SEIS. The Court of Appeals
relied upon its long-standing rule that a lead agency’s
SEQRA determinations must be sustained by a reviewing
court unless found to be “arbitrary, capricious or unsupported by substantial evidence.”4
An examination of the issues before the Court of
Appeals in Riverkeeper confirms that if New York jurisprudence previously lacked clarity with respect to when
“newly discovered information” will require the prepara-
tion of an SEIS (a dubious proposition in our view), any
such deficiency has now been remedied. This article will
discuss the parties’ respective contentions in Riverkeeper,
as well as the arguments raised by the New York State
Attorney General’s Office when it appeared as amicus
curiae before the Court of Appeals and unsuccessfully
argued that the Planning Board’s SEIS determination was
When viewed against the backdrop of the project’s
history and the relevant legal issues, Riverkeeper sends
both a powerful and clear message to lower courts that a
lead agency’s SEIS determination is entitled to significant
judicial deference. This principle should not be compromised or relaxed because a project opponent raises
allegations of newly discovered information or changed
circumstances involving an important natural resource,
such as drinking water. In all instances, the standard
of judicial review is the same. As the Court of Appeals
succinctly states in Riverkeeper, “[i]t is not the province
of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should
be annulled only if it is arbitrary, capricious or unsupported by the evidence.”5 Riverkeeper also reaffirms that
a lead agency can and should rely upon the expertise of
other agencies in connection with its environmental decisionmaking. Finally, Riverkeeper clarifies important legal
and practical issues involving the sequencing of SEQRA
review and the regulatory permitting process for largescale land use projects.
The Project
The project at issue in Riverkeeper involves a 104-lot,
single-family residential development in the Town of
Southeast. The property consists of 310 acres bisected
by a county road, thus creating a northern and southern
parcel. The project is known as “The Meadows at Deans
Corners” or simply the “Meadows.”
In 1988, the applicant sought preliminary subdivision
approval from the Town of Southeast Planning Board.
Initially, the applicant proposed a 139-lot development in
a cluster format. The perimeter of the site, consisting of
approximately 200 acres, would remain undeveloped and
serve as a natural buffer to surrounding properties and as
a wildlife habitat.
The Planning Board initiated the subdivision review
process, as well as an environmental review pursuant
to SEQRA. For purposes of SEQRA review, the Planning
Board served as “lead agency.” In 1989, the Planning
Board issued a “Positive Declaration” for the project,
which triggered full SEQRA review. The environmental
review that followed included, among other things, the
preparation and acceptance of a DEIS, FEIS, SEIS and
In 1991, the Planning Board issued a SEQRA Findings
Statement for the Meadows. The Findings Statement
expressly addressed, among other things, impacts associated with wetlands, the integrity of the watershed, control of phosphorus pollution, water supply, stormwater
runoff and sewage disposal. Such issues were examined
in requisite detail at that early stage of the Meadows
application, and the Planning Board acknowledged that
the project would be subject to further review and refinement by involved agencies during various permitting
The Planning Board’s Findings Statement concluded
that the development of the Meadows property as a
residential subdivision, in the manner proposed in 1991,
would minimize or avoid known adverse environmental
impacts to the maximum extent practicable. No neighboring property owners or other parties challenged the
Findings Statement following its adoption.
Thereafter, the applicant and its technical consultants attempted to work with various regulatory
agencies, including the New York City Department of
Environmental Protection (NYCDEP), to finalize numerous engineering and design issues concerning the project.
During this time, however, NYCDEP was engaged in
updating its regulations governing development in the
New York City Watershed for the first time since 1953.7
This period of regulatory uncertainty and transition
created delays for projects such as the Meadows, which
involved development within the New York City watershed.
In 1998, after the Watershed Regulations became effective, the applicant submitted a proposed preliminary
plat to the Planning Board. At that time, the Planning
Board and its independent planning consultant sought
to determine whether any aspects of the project had
changed since the previous environmental reviews done
in connection with the 1991 Findings Statement. To that
end, the applicant was directed to prepare an updated
traffic study that sampled current and projected traffic
levels. The study concluded that the Meadows would not
adversely affect local intersections. In August 1998, the
Planning Board issued a resolution granting preliminary
subdivision approval for the Meadows pursuant to Town
Law § 276(5). Like the Planning Board’s SEQRA Findings
Statement, the grant of preliminary subdivision approval
went unchallenged.
The applicant returned to the task of completing its
regulatory approvals, but opposition to the project, which
had been gathering, became more vocal and organized.
In 2002, the applicant received a letter purportedly from
the Planning Board chairman, advising that its preliminary subdivision approval had expired. In response, the
applicant filed a CPLR Article 78 proceeding challenging
that determination and seeking a default approval of the
final plat pursuant to Town Law § 276(8). The litigation
quickly settled and, in June 2002, the Planning Board
granted final subdivision approval for the Meadows.
NYSBA Journal | July/August 2008 | 19
Riverkeeper I
The Planning Board’s issuance of final subdivision approval was challenged in two related Article 78 proceedings,
which the parties subsequently dubbed “Riverkeeper I.”
The petitioners claimed that various project revisions and
regulatory and other changes were not addressed, or were
inadequately addressed in connection with the 1991 SEQRA
Findings Statement. In particular, the petitioners argued that
the following matters, among other items, required further
study through the preparation of an SEIS.
• In 1998, the United States Army Corps of Engineers
(ACOE) and the New York State Department of
Environmental Conservation (NYSDEC) completed
remapping the wetlands lines on the project site
which resulted in expansion of the wetlands from
71.8 acres to 79.59 acres.
• In 2000, NYSDEC identified the Muscoot Reservoir,
a source of drinking water for New York City, as
water quality limited based on current conditions.
This finding recognized that the Muscoot Reservoir
did not meet water quality standards, established
pursuant to the Clean Water Act, based upon its
existing phosphorus levels. The project site contains
a watercourse known as Holly Stream, which is an
indirect tributary to the Muscoot Reservoir.
• In April 2001, NYSDEC and NYCDEP developed
total maximum daily loads (TMDLs) for phosphorus
loading for drinking water reservoirs located in the
Town of Southeast. These TMDLs provide planning
goals to achieve non-point source8 reductions in
phosphorus loading.
• In December 2001, Governor Pataki designated
the East of the Hudson portion of the Watershed,
including the Town of Southeast, as a “Critical
Resource Water” (CRW).
• In May 2002, ACOE also designated all water bodies
and wetlands in the Watershed East of the Hudson
as Critical Waters, stating that “[t]his watershed
is considered to have special environmental and
ecological significance that warrants the additional
protection of CRW designation.”
• The NYCDEP practice of flagging watercourses had
resulted in the realignment of planned roadways
within the development and the addition of two
unpaved, emergency access roads.
• Responding to requirements imposed by NYCDEP,
the applicant had increased the number of detention
basins designed to capture stormwater runoff from
nine to 20.
• Other residential development near the project site
potentially increased traffic impacts and impacts to
the quantity and quality of the potable water supply.
• And, in 1999, Hurricane Floyd purportedly caused
flooding of Holly Stream, which crosses a portion of
the project site.
20 | July/August 2008 | NYSBA Journal
In February 2003, Justice Francis A. Nicolai, J.S.C.,
issued a decision annulling the final subdivision approval granted by the Planning Board.9 The court remitted
the matter to the Planning Board for consideration of
whether an SEIS was required with respect to certain specific project revisions and regulatory and other changes
identified by the petitioners, occurring after approval of
the preliminary plat in 1998. In particular, Justice Nicolai
instructed the Planning Board to focus upon the abovementioned areas of environmental concern in determining whether an SEIS was needed.
Upon remittal, the Planning Board examined existing
reports and analyses that related to the revisions and
changes identified in the trial court’s decision. It also
reviewed new information generated in connection with
the project’s applications before permitting agencies.10
Based upon these materials, the Planning Board determined that the project modifications and regulatory and
other changes identified in Riverkeeper I did not give rise
to potentially significant adverse environmental impacts
that were not previously examined by the Planning Board.
In April 2003, the Planning Board adopted a seven-page
resolution describing the scope of its review and setting
forth its conclusion that no SEIS was required.
Riverkeeper II
In May 2003, the same group of petitioners commenced
three Article 78 proceedings (“Riverkeeper II”) challenging
the Planning Board’s determination that an SEIS was not
required.11 All three proceedings were assigned to the
same trial judge (Justice Nicolai) that had remitted the
matter to the Planning Board in Riverkeeper I.
By decision dated October 31, 2003, Justice Nicolai
concluded that the Planning Board took the required
“hard look” at the areas of environmental concern identified in Riverkeeper I and made a “reasoned elaboration”
of the basis for its determination that an SEIS was not
required. The court also found that the Planning Board’s
“recognition that other agencies have permitting authority and the Board’s requirements that [the developer]
must obtain the relevant permits prior to final subdivision [approval] is not an improper segmentation or
improper delegation to other agencies.”12
The petitioners then appealed to the Appellate
Division, Second Department. That court, with one justice dissenting (Hon. Robert A. Spolzino, J.S.C.), reversed
the judgments dismissing the petitions and held that the
Planning Board had failed to discharge its duties as a
SEQRA lead agency by dispensing with the preparation
of an SEIS.13 The majority stated that an SEIS was required
to analyze the changes to the regulatory environment and
to confirm the project’s “harmony with the new regulatory scheme.”14
The majority also ruled that the Planning Board
improperly deferred its duties as SEQRA lead agency. On
this question, the majority appeared troubled by an observation made by the Planning Board in its 1991 Findings
Statement, which mentioned that other agencies would
be evaluating the environmental impacts of the Meadows
project. The majority also admonished the Planning
Board for rendering its determination not to require
an SEIS “in the face of an appreciable probability” that
one or more permits would not issue for the Meadows
without further revisions to the project.15 When the
Planning Board had made its SEIS determination, ACOE
had recently received correspondence from NYCDEP, the
United States Department of Environmental Protection
and the United States Department of the Interior, Fish
and Wildlife Service raising concerns about wetland
impacts on the project site.
Justice Spolzino dissented. He applied the standard
of judicial review established in Jackson v. New York
State Urban Development Corp.16 and subsequent cases in
concluding that the Planning Board had “rationally
determined on the basis of substantial evidence in the
record that no supplemental environmental impact statement . . . was necessary.”17 The dissent characterized
the result reached by the majority as improper “secondguessing” of an administrative decision and rejected the
majority’s conclusions about the effect of the passage of
time and changed circumstances.18 The dissent found
ample support in the record for the Planning Board’s
negative determination concerning the SEIS and found
no improper deferral of the examination of any environmental issue by the Planning Board. The dissent noted
that SEQRA encourages lead agencies to draw upon the
expertise and advice of other involved agencies.19
After unsuccessfully moving for leave to appeal in
the Appellate Division, the applicant sought leave from
the Court of Appeals. Because the Court of Appeals
grants less than 10% of motions for leave to appeal, the
applicant’s chances of obtaining a favorable outcome at
this juncture appeared slim. Moreover, the case did not
involve a split in authority among the departments of the
appellate divisions or, for the most part, a novel question
of law. Instead, the applicant’s motion for leave principally argued that the Appellate Division majority had failed
to apply the correct standard of review – established 20
years earlier by the Court of Appeals in Jackson – and
consequently had reached the wrong result.
Nevertheless, the Appellate Division’s departure from
Jackson undoubtedly raised a question of statewide public
importance. The sharply different conclusions reached
by the majority and the dissent also revealed a profound
disagreement over the interpretation of SEQRA. Under
the majority’s view, the Planning Board should have
refrained from issuing its SEIS determination until other
NYSBA Journal | July/August 2008 | 21
involved agencies had completed their permitting processes, or it should have solicited comments from those
agencies before proceeding. Yet, no such requirements are
found in SEQRA or its implementing regulations. In fact,
a lead agency has no authority under SEQRA to compel
an involved agency to provide it with materials or information concerning a permit application.
per se is not harmful, but excessive levels of phosphorus
in a reservoir promote algae growth which, in turn, can
adversely affect the odor and taste of drinking water.20
Phosphorus loading from the project site was among
the various issues alleged by the petitioners to require
the preparation of an SEIS. As mentioned above, a stream
that crosses a portion of the project site is an indirect
Once the case reached the Court of Appeals, the issue of
the project’s adverse phosphorus impacts, if any, seemingly
took on heightened significance.
If the Appellate Division was now instructing lead
agencies to stop and wait for such information, SEQRA
review would undoubtedly become more protracted.
Indeed, SEQRA review could stall in the face of a demand
for an SEIS from a project opponent while the lead agency
struggled to carry out this solicitation process. Despite the
long odds, in March 2007, the Court of Appeals agreed to
hear the case.
Key Issue of Water Quality
In any long-running litigation, it is not uncommon to see
parties make subtle changes in strategy or adjust their
emphasis on particular claims. Arguments are raised,
met with opposition and scrutinized by courts. When the
process involves multiple trips to the courthouse, the parties can (and should) hone their arguments to maximize
their chances of a favorable outcome. Certainly, when
attorneys have a case reach the Court of Appeals they will
be bringing their “A-game.”
Such was the case when Riverkeeper II reached the
Court of Appeals. In coordinated fashion, the petitioners
advanced an array of arguments relating to the project modifications and regulatory and other changes at
issue. But one issue had clearly risen to the top of their
agenda – phosphorus loading into the Muscoot Reservoir.
This issue also attracted the attention of the New York
State Attorney General’s Office, which decided to appear
amicus curiae before the Court of Appeals. The Attorney
General’s Office took the position that the Appellate
Division’s determination should be affirmed, though it
limited its arguments solely to the issue of phosphorus
Phosphorus is a nutrient found naturally in soils and
minerals, living organisms, and water. Man-made sources of phosphorus in the environment include wastewater
treatment plants, failing septic systems and fertilizers.
When it rains, soil material containing phosphorus is
often transported by stormwater runoff, and ultimately
this runoff can find its way into reservoirs. Phosphorus
22 | July/August 2008 | NYSBA Journal
tributary to the Muscoot Reservoir. Additionally, in 2000,
NYSDEC designated the Muscoot Reservoir as “water
quality limited” based on then-current conditions including excess phosphorus loading. And in 2001, NYSDEC
and NYCDEP had developed TMDLs for phosphorus
loading for the Muscoot and other drinking water reservoirs in the Croton Watershed.21
Nevertheless, once the case reached the Court of
Appeals, the issue of the project’s adverse phosphorus
impacts, if any, seemingly took on heightened significance. The petitioners stressed that the Muscoot Reservoir
is one of 12 major reservoirs that supply unfiltered drinking water to approximately 10 million New Yorkers,
almost half the population of the state. Together with the
Attorney General’s Office, the petitioners argued that,
with an important public resource at stake, the Planning
Board was remiss by not requiring the preparation of an
SEIS. In essence, the petitioners’ message to the Court of
Appeals was “better safe than sorry.”
The issue, however, was not that simple. The primary
method of evaluating a project’s phosphorus and related
stormwater impacts is a mandatory engineering study
known as a Stormwater Pollution Prevention Plan (SPPP).
Generally, NYCDEP requires that projects within the
New York City Watershed maintain post-development
stormwater pollutant loading to pre-construction levels
as a condition of approval. In the case of the Meadows,
the applicant’s SPPP contained over 1,500 pages of narrative and stormwater calculations.
At the time of the Planning Board’s SEIS determination, the Meadows’ SPPP had already been subject to several years of review and comments by NYCDEP staff. The
document, which was initially drafted in 2000, was then
in its fourth revised form. Although NYCDEP had not
yet approved the Meadows’ SPPP, it had been deemed
“complete” by NYCDEP when the Planning Board issued
its 2003 SEIS determination. NYCDEP’s acceptance of an
SPPP as “complete” is a significant milestone and typically a precursor to the plan’s approval.22 By the time the
Court of Appeals heard the Riverkeeper appeal, NYCDEP
had approved the Meadows’ SPPP and granted all necessary approvals for the project.
Significantly, the Meadows’ SPPP found that, among
other things, the stormwater mitigation measures
designed for the project would actually reduce phosphorus loading from the property after construction was
complete. Specifically, the SPPP calculated that total
phosphorus loads generated from the Meadows property would be reduced by 23.5% in a post-development
The Court of Appeals
Although the record on appeal contained no evidence
contradicting the Meadows’ SPPP, the petitioners nevertheless disputed its methodology and conclusions. The
petitioners alleged that the SPPP had not been sufficiently
available for public review while it was being formulated and vetted by NYCDEP, and thus they did not have
an opportunity to scrutinize its conclusions. The New
York State Attorney General argued that the Meadows’
SPPP had utilized a modeling technique for predicting
phosphorus loads that was less accurate than other available models. The Attorney General also argued that the
Planning Board should have required an SEIS to study
the implementation of additional remedial measures on
the project site, which might have further mitigated phosphorus loading to the Muscoot Reservoir below the 23%
reduction found in the Meadows’ SPPP.
The applicant, in turn, asserted that the Planning
Board reasonably relied upon the Meadows’ SPPP and
its conclusion that post-construction phosphorus loading
from the property would actually be reduced relative to
pre-construction levels, through the project’s advanced
stormwater management features. The applicant further
argued that SEQRA does not obligate a project applicant to implement remedial measures for the purpose
of improving pre-existing environmental conditions as
a condition to developing its property, in addition to
arguing that a SEQRA lead agency has no duty to undertake such an analysis.23 The applicant also pointed out
that regulatory agencies continue to rely upon the same
methodology used in the Meadows SPPP and that, in any
event, SEQRA does not require a lead agency to search
for “scientific unanimity” in rendering determinations
of environmental significance.24 To the contrary, Jackson
requires that a lead agency take a “hard look” at the available information. The lead agency’s assessment of the
available information will not be disturbed unless found
to be “arbitrary and capricious.”25
On the deferral issue, the applicant argued that in
1991, the Planning Board had promptly commenced the
procedural steps required by SEQRA to undertake its
environmental review “at the earliest possible time.”26
As lead agency, the Planning Board examined matters
such as wetlands impacts, the integrity of the watershed,
control of phosphorus pollution, stormwater runoff and
sewage disposal at the level of detail possible at that early
stage of the Meadows application.27
In a project requiring extensive regulatory permitting, such as the Meadows, fully engineered project
plans cannot be finalized until those agencies with
permitting authority have reviewed and approved the
applicant’s technical designs. The overlapping regulatory
review conducted by agencies such as ACOE, NYSDEC
and NYCDEP is a routine and inevitable aspect of any
significant development activity in the New York City
Watershed. Thus, the applicant defended the Planning
Board’s observation in the 1991 Findings Statement that
some systems proposed for the Meadows might undergo
design modifications in light of this overlapping regulatory review; it simply reflected a practical reality for any
such development of a significant scale.28
The Court’s Decision
The Court’s unanimous decision in Riverkeeper was delivered by Chief Judge Kaye, who also wrote the Court’s
seminal decision in Jackson. Chief Judge Kaye began by
returning to Jackson and reiterating that a lead agency’s
determination regarding the necessity for an SEIS “is limited to whether the agency identified the relevant areas
of environmental concern, took a ‘hard look’ at them, and
made a ‘reasoned elaboration’ of the basis for its determination.”29 The Court elaborated as follows:
It is not the province of the courts to second-guess
thoughtful agency decisionmaking and, accordingly,
an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The
lead agency, after all, has the responsibility to comb
through reports, analyses and other documents before
making a determination; it is not for a reviewing court
to duplicate these efforts.30
The Court then analyzed the project’s lengthy and
complex history and the environmental reviews conducted by the Planning Board and various regulatory
agencies. In particular, the Court examined the project
revisions and regulatory and other changes identified in
Riverkeeper I. When viewed through the lens of the Jackson
standard of review, the Court of Appeals reached the
same conclusion as did Justice Spolzino in the Appellate
Division, who had been the lone dissenter below. The
Court held:
We thus conclude that the Board took a hard look at
the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that
a second SEIS was not necessary. The Board relied on
the material already in its file, including the DEIS, FEIS
and initial SEIS, supplemental reports by the Town’s
wetlands consultant and the developer’s engineering
consultant, as well as its own environmental and plan-
NYSBA Journal | July/August 2008 | 23
case here. The Board’s involvement in the Meadows
project spanned almost 15 years at the time of the SEIS
determination. The Board opened public comment
periods when it reviewed the DEIS, FEIS and initial
SEIS. In addition, the Board took into account expert
reports finding that the changes in the project and the
regulations posed no significant adverse environmental impact. That the Board did not solicit comments
for a second SEIS does not mean that it failed to take
a hard look. With an extensive understanding of the
Meadows project, the Board properly applied its own
ning consultant. The Board’s determination that the
changes did not present significant adverse environmental impacts and did not require the preparation of
a second SEIS was not arbitrary or capricious and is
supported by the evidence.31
The Court rejected the petitioners’ claim that the
Planning Board had improperly deferred its SEQRA
responsibilities by making its SEIS determination prior to
the completion of the various permitting processes still
pending at that time. On this point, the Court of Appeals
concluded as follows:
A lead agency improperly defers its duties when it
abdicates its SEQRA responsibilities to another agency
or insulates itself from environmental decisionmaking. While a lead agency is encouraged to consider the
opinions of experts and other agencies, it must exercise
its own judgment in determining whether a particular circumstance adversely impacts the environment.
Though the SEQRA process and individual agency
permitting processes are intertwined, they are two distinct avenues of environmental review. Provided that
a lead agency sufficiently considers the environmental
concerns addressed by particular permits, the lead
agency need not await another agency’s permitting
decision before exercising its independent judgment
on that issue.
The Board’s [SEIS] resolution indicates a familiarity
with the required permits and its mere acknowledgment that the developer would be required to seek
approval from the [ACOE] pursuant to the Clean
Water Act for wetlands disturbance does not rise to the
level of improper deferral. On these facts, the Board,
having access to the relevant permit applications
and making independent decisions as documented
in the April 2003 resolution, was not required to wait
for agency permitting decisions before determining
whether to require a second SEIS.32
Finally, the Court held that the Planning Board did
not have an affirmative statutory obligation under
SEQRA to notify or solicit comments from other agencies
when determining whether an SEIS would be required.
While the Court acknowledged that SEQRA encourages
the open exchange of information between a lead agency
and other involved agencies,33 it reasoned that a lead
agency’s discretion to solicit comments “must be balanced against SEQRA’s mandate that the regulations be
implemented ‘with minimum procedural and administrative delay . . . [and] in the interest of prompt review.’”34
Striking the same balance here, the Court found that
the Planning Board’s failure to solicit comments before
making its SEIS determination was neither arbitrary nor
capricious. The Court explained as follows:
While a lead agency’s failure to solicit comments
before determining that a SEIS is not required may at
times evidence the lack of a “hard look,” that is not the
24 | July/August 2008 | NYSBA Journal
Riverkeeper provides a hearty endorsement of the concept
that a lead agency’s SEQRA determinations will not be disturbed, will not be second-guessed and a reviewing court
shall not substitute its judgment for that of the agency so
long as there is substantial evidence in the record to support the determination. Opponents to land use development may still attempt to seize upon project modifications
and regulatory changes as a basis to stall expeditious and
efficient land use review by complaining that a costly and
time-consuming SEIS must be prepared. But a lead agency’s determination not to require an SEIS will be upheld so
long as it is supported by substantial evidence. Not every
project modification or regulatory change must be examined through the preparation of an SEIS, because doing
so would paralyze economic development in New York
State. A lead agency has latitude in making such decisions
and a court’s review of those decisions must be guided by
the proper standard of judicial review. It is not the job of
the court to inject itself into a lead agency’s deliberative
process by weighing alternatives or speculating as to other
steps that might have been useful.
N.Y. Environmental Conservation Law §§ 8-0101–8-0117 (ECL).
James Bryan Bacon, N.Y. St. B.J. (Jan. 2007) p. 32.
32 A.D.3d 431, 820 N.Y.S.2d 113 (2d Dep’t 2006), rev’d, 9 N.Y.3d 219, 851
N.Y.S.2d 76 (2007).
4. Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298
Riverkeeper, 9 N.Y.3d at 232.
The other acronyms mentioned here, which will be familiar to SEQRA
practitioners, stand for Draft Environmental Impact Statement (DEIS), Final
Environmental Impact Statement (FEIS) and Final Supplemental Environmental
Impact Statement (FSEIS).
NYCDEP did so in response to United States Environmental Protection
Agency regulatory requirements imposed pursuant to the Safe Drinking Water
Act Amendments of 1986. See 42 U.S.C. §§ 300f–300j-26 and the 1989 Surface
Water Treatment Rule, 40 C.F.R. § 141.71. NYCDEP published draft regulations
in 1990 and revised draft regulations in 1993 and 1994. The final Watershed
Regulations did not become effective until May 1997. See 10 N.Y.C.R.R. Part
8. Pursuant to ECL § 17-0105(16), “[p]oint source” is defined so as to include
“any discernible, confined and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit . . . from which pollutants are or
may be discharged.”
9. See Riverkeeper, Inc. v. Planning Bd. of Town of Southeast & Glickenhaus, 2003
WL 2004173, 2003 N.Y. slip op. 50776(U) (Sup. Ct., Westchester Co. 2003).
10. These additional materials included two reports generated by an independent wetlands consultant retained by the Town Board of the Town of
Southeast (the “Town Board”) to review the applicant’s local wetlands permit
application before the Town of Southeast Conservation Advisory Commission
(the “Conservation Commission”). The Conservation Commission is an independent advisory board in the Town of Southeast charged with rendering a
report and recommendation to the Town Board with respect to permit applications for wetlands activities. The independent wetlands consultant was tasked
with evaluating the applicant’s wetlands-related submissions; verifying prior
wetlands delineations made by the applicant and regulatory agencies; and
identifying the extent of wetlands impacts posed by the Meadows project. In
addition, the Planning Board received copies of the applicant’s applications for:
(1) a State Pollution Discharge Elimination System (SPDES) permit to be issued
by the New York State Department of Environmental Conservation (NYSDEC);
(2) a wetlands activities permit to be issued by the United States Army Corps
of Engineers (ACOE); and (3) a Stormwater Pollution Prevention Plan (SPPP)
to be approved by the New York City Department of Environmental Protection
(NYCDEP). There were further materials before the Planning Board, including but not limited to: (1) a report prepared by the applicant’s groundwater
consulting firm setting forth the results of recent testing, (2) submissions from
the applicant’s engineering consultant, and (3) the analyses of the applicant’s
wetlands consultant. These submissions specifically addressed the project revisions, regulatory and other changes identified in Riverkeeper I.
11. A. 61-81, 251-281, 571-590.
12. The court’s October 31, 2003, decision is unreported.
13. See Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 32 A.D.3d 431, 820
N.Y.S.2d 113 (2d Dep’t 2006), rev’d, 9 N.Y.3d 219, 851 N.Y.S.2d 76 (2007).
14. Riverkeeper, 32 A.D.3d at 434. On this point, the majority relied upon
Doremus v. Town of Oyster Bay, 274 A.D.2d 390, 711 N.Y.S.2d 443 (2d Dep’t
2000). Doremus, however, involved the extraordinary situation of a lead agency
utilizing a FEIS to approve the rezoning of an undeveloped 81-acre parcel of
property where it had, 11 years earlier, relied upon the same FEIS to deny an
application to rezone the same property. In the interim, the proposed project
had changed. The lead agency’s action was challenged in an Article 78 proceeding, which alleged the FEIS could not possibly have addressed the potential environmental impacts stemming from the developer’s new proposal. The
trial court found that the differences between the proposals were “radical” and
that the environmental impacts of project’s modifications were “unstudied”
and “unknown.” See Doremus v. Town of Oyster Bay, N.Y.L.J., Jan. 28, 1998, pp.
6, 7 (Sup. Ct., Kings Co. 1998). The Appellate Division, Second Department
agreed with that assessment and affirmed the trial court’s decision.
15. Riverkeeper, 32 A.D.3d at 436.
16. 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298 (1986).
17. Riverkeeper, 32 A.D.3d at 436 (Spolzino, J., dissenting).
18. Id. at 442.
19. Id. at 442–43.
agency is required to examine, or empowered to exact from a property owner,
the implementation of measures aimed at remediating some pre-existing environmental problem.
24. See, e.g., Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Island
Operating Corp., 291 A.D.2d 40, 55, 735 N.Y.S.2d 83 (1st Dep’t 2001) (“[D]iffering conclusions reached by other experts concerning the potential adverse
environmental impacts are insufficient to annul an agency’s determination”),
leave to appeal denied, 97 N.Y.2d 613, 742 N.Y.S.2d 606 (2002); Argyle Conservation
League v. Town of Argyle, 223 A.D.2d 796, 798, 636 N.Y.S.2d 150 (3d Dep’t 1996)
(“[S]cientific unanimity need not be achieved and the FGEIS is not required to
make an exhaustive analysis of every possible environmental impact”); Sun Co.
v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 51, 625 N.Y.S.2d 371 (4th
Dep’t) (“It is not a court’s function to resolve the disparity in data presented to
an agency”), appeal dismissed, 86 N.Y.2d 776, 631 N.Y.S.2d 603 (1995).
25. Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298
26. 6 N.Y.C.R.R. § 617.1(c).
27. See ECL § 8-0109(4) (“[T]he length and detail of the draft environmental
statement will necessarily reflect the preliminary nature of the proposal and the
early stage at which it is prepared.”).
28. See 6 N.Y.C.R.R. § 617.3(b) (“SEQRA provides all involved agencies with
the authority, following the filing of a final EIS and written findings statement
. . . to impose substantive conditions upon an action to ensure that the requirements of this Part have been satisfied”); In re Application of Croton Watershed
Clean Water Coalition, Inc., 2 Misc. 3d 1010(A), 784 N.Y.S.2d 919 (Sup. Ct.,
Westchester Co. 2004) (“[T]he Court has found no authority to suggest that a
lead agency must resolve all permitting issues before a determination of significance may be rendered.”).
29. Riverkeeper, 9 N.Y.3d at 231–32 (quoting Jackson, 67 N.Y.2d at 417 (quotation
marks omitted)).
30. Id. at 232.
31. Id. at 233–34 (footnote omitted). The Court gave short shrift to the petitioners’ contentions regarding the purported need to prepare an SEIS to study the
project’s phosphorus impacts upon the Muscoot Reservoir. As mentioned, the
23% reduction in phosphorus loads calculated in the Meadows’ SPPP was not
contradicted by any evidence in the record. The petitioners’ effort to challenge
the SPPP through arguments advanced by their counsel found no traction in
the Court of Appeals. Similarly, arguments raised by the Attorney General’s
Office that purported to invoke technical materials outside the record were
implicitly rejected by the Court without comment.
32. Id. at 234–35 (footnote and citation omitted).
33. See 6 N.Y.C.R.R. §§ 617.3(d), (e), 617.14(c).
34. Riverkeeper, 9 N.Y.3d at 235 (quoting 6 N.Y.C.R.R. § 617.3(h)).
35. Id.
20. See generally <
protection/html/prestricted.html>; <
21. See generally <>.
22. The acceptance of an application as complete triggers a 45-day regulatory
deadline within which NYCDEP must make a decision on the application. See
10 N.Y.C.R.R. § 128-2.3(d)(5). The Meadows’ SPPP was approved by NYCDEP
on January 28, 2004.
23. See, e.g., ECL § 8-0109(1), (2)(b) (a lead agency must examine “the environmental impact of the proposed action including short-term and long-term effects”
and to choose alternatives that, to the “maximum extent practicable,” minimize
or avoid such adverse environmental effects) (emphasis added); 6 N.Y.C.R.R.
§ 617.7(c)(1)(i) (criteria for determination of significance include, among other
things, whether the proposed action will result in “a substantial adverse change
in existing air quality, ground or surface water quality or quantity . . . a substantial increase in potential for erosion, flooding, leaching or drainage problems”) (emphasis added); 6 N.Y.C.R.R. § 617.7(a)(1) (in making an initial
determination of environmental significance, a lead agency must examine
whether “the action may include the potential for at least one significant
adverse environmental impact.”) (emphasis added); 6 N.Y.C.R.R. § 617.2(b)(1)
(defining the term “action,” in relevant part, as including “projects or physical
activities, such as construction or other activities that may affect the environment
by changing the use, appearance or condition of any natural resource or structure”) (emphasis added); 6 N.Y.C.R.R. § 617.2(r) (defining the term “impact” as
“to change or to have an effect on any aspect(s) of the environment”) (emphasis
added). The plain language of these provisions forecloses the notion that a lead
NYSBA Journal | July/August 2008 | 25
Supreme Court Justice, 7th Judicial
District, Rochester, N.Y., and Chair
of PEAP.
SUSAN L. POLLET is Counsel and
Director of PEAP. She earned
her B.S. degree from Cornell
University, and her J.D. from Emory
We are grateful to Chief Judge
Kaye for her caring and creative
vision, commitment, and continuing support of the parent education program, a much needed
resource for the parents and
children of this state.
The New York State
Parent Education and
Awareness Program
By Evelyn Frazee and Susan L. Pollet
he court system is often criticized as being insensitive, overly complex, costly, and slow – particularly
in the areas of matrimonial and family law. While
the litigation process can be polarizing, for many the courts
present a last chance for positive change, redemption, and
a better life. The New York State Parent Education and
Awareness Program (PEAP or the “Program”) is a court
initiative offering research-based information that can
provide help and hope to parents, and their children, who
are embroiled in custody litigation.
The divorce or separation of parents can be a traumatic
experience for children, one that affects them not only at
the outset, but for life. The PEAP is designed to educate
divorcing or separating parents about the impact of their
breakup on their children. The primary goal is to teach
parents ways they can reduce the stress of family changes
and protect their children from the negative effects of
ongoing parental conflict, in order to help foster and
promote their children’s healthy adjustment and development.
26 | July/August 2008 | NYSBA Journal
You do not have to know someone who is undergoing a
separation, divorce or other child-centered litigation nor
do you have to be personally involved in such an experience to recognize that putting children in the middle
of parental conflict can be detrimental to their health
and well-being. For years studies have documented an
increased risk of adverse outcomes for children from such
conflict, including poor psychological adjustment, greater
incidence of behavioral problems, higher utilization of
mental health services as adults, and higher rates of disruption in their own marriages, to name but a few.1
Many parents have not been educated about these
issues, however, and some, despite their awareness, are
unable to change their behavior because they do not have
the tools to do so. Experience has shown that if parents
are educated to better understand the psychological and
legal process they are undergoing, the breakup and its
aftermath can be less traumatic for both parents and children.2 Indeed, some experts have advocated requiring
parents to attend parent education, describing it as “mandating an opportunity,” with the goal of “empowering”
parents with information and resource options.3
The recognition that such intervention could produce
better outcomes for children affected by divorce led to the
first court-affiliated parent education program in 1978. By
2001, “thirty-five states had established them by legislation or court rule.”4 Institutionalized parent education
now exists in all but six states in the United States.5 While
the benefits of parent education inure to the parents and
their children, these programs also recognize that divorce
and separation may have “social and economic costs for
society as well as for the individual.”6
New York State joined the movement to provide
parent education on a statewide basis in 2001, under
the direction of its Chief Judge, Judith S. Kaye. In her
2001 State of the Judiciary address, Chief Judge Kaye
announced the initiation of the New York State PEAP
and the appointment of a 19-member, multi-disciplinary
Advisory Board to recommend standards, guidelines
and requirements for establishing and conducting parent
education in New York State. The Program was implemented by a 2001 Administrative Order of former Chief
Administrative Judge Jonathan Lippman.7 In October
2003, the Advisory Board released its report and recommendations for uniform standards and procedures for
the certification and monitoring of parent education
programs. The Board’s recommendations, which were
adopted, set minimum standards to ensure that program
content and administration reflect current research and
best practices, including a child-centered approach and
protocols for the safety of victims of domestic violence.
The order was amended in 2004.8
By Court Rule of July 24, 2006, Family Court Judges
and Supreme Court Matrimonial Justices were empowered to order, in their discretion, parents of children
under the age of 18 years who are involved in custody,
visitation, divorce, separation, annulment or child support court actions or proceedings, to attend PEAPcertified parent education programs. The Court Rule
was subsequently revised on May 15, 2007, to clarify
that judges cannot order parents to attend parent education where there is any history, or specific allegations or
pleadings, of domestic violence or other abuse involving
the parents or their children.
In order to accept court referrals, a parent education
provider must be certified. The certification process is
carried out under the direction and oversight of the
Program’s counsel and director. First, a provider must
submit a written application. After the application is
satisfactorily reviewed, a full class cycle is observed and
critiqued to ensure that the applicant’s program complies
with both the administrative protocols and curriculum
requirements. Certification is for a three-year period;
programs are subject to review at the end of that period,
to qualify for re-certification. To promote best practices,
annual training for program provider administrators and
presenters is also conducted.
The Program recognizes the unique, and often dangerous, circumstances of domestic violence victims and has
undertaken several measures, both in the administration
and presentation of parent education, to foster safety and
the dissemination of appropriate information. A child’s
parents are not permitted to attend the same class session.
Enrollment information is confidential and will not be
revealed. Providers are required to have a safety plan and
security measures. In addition to the Court Rule prohibiting courts from ordering parents to parent education when
domestic violence is present, victims of domestic violence
are able to “opt out” of attendance. A domestic violence
Features of the Program
Unlike many states, New York’s parent education program is provided for separating parents who may not
have been married as well as for divorcing parents. In
addition to being ordered or referred to parent education
by the courts, parents are free to self-refer and attend voluntarily; they may be referred to parent education by their
attorneys, mental health professionals or other entities and
individuals with an interest in them and their children.
NYSBA Journal | July/August 2008 | 27
victim who opts out is provided with the Parent’s Handbook
distributed in class and a certificate that can serve to counter any inappropriate attempts by the other parent to use
parent education attendance as an issue in litigation.
The curriculum is sensitive to domestic violence
and the possibility of inadvertently sending a domestic
violence victim messages that could be harmful or compromise the victim’s safety. Thus programs are required
in 2007, as of October 30, there were approximately 4,334
attendees. It is anticipated that with continued outreach
efforts these numbers will keep growing.
PEAP offers ongoing assistance to help foster the efficient operation of existing programs and to encourage
new providers to establish programs so quality parent
education is available to all parents in the state. A Web
site10 is maintained as a resource for parents, providers
The curriculum is sensitive to domestic violence and the
possibility of inadvertently sending a domestic violence victim
messages that could be harmful or compromise the victim’s safety.
to teach parallel parenting – how to parent with an
abusive former partner or spouse or when there is high
conflict – as well as cooperative parenting. The curriculum is “skills based”; it incorporates skills for conflict
management, such as adopting a more businesslike
approach, and disengaging from inflammatory verbal
exchanges and interactions with the children’s other
parent. This provides parents with exposure to behaviors
that can alter often entrenched and dysfunctional ways of
relating to each other and gives them the opportunity to
practice these techniques.
The required curriculum addresses parenting issues
and the legal process.9 In the Parenting & Child WellBeing portion of the curriculum, four broad topics are
covered: creating and maintaining supportive parentchild relationships; providing a stable, supportive home
environment; maintaining healthy parental functioning
and psychological well-being; and protecting children
from ongoing conflict between parents (this includes a
discussion of parallel and cooperative parenting).
The curriculum also includes a short overview of the
legal process. It covers legal terminology in the area of
custody and visitation, the various options for resolving
disagreements, information about how the court makes a
custody/visitation decision, the importance of the timely
payment of child support, and the necessity of obeying
court orders.
Implementation and Current Status
The PEAP program began in July 2005. There are 50 certified providers that cover all 62 counties in New York
State; classes are offered at 93 sites. As of October 2007,
approximately 7,957 parents have attended parent education classes since the Program’s launch. These figures
also reveal increasing awareness and utilization of the
Program: there were 575 attendees from July through
December 2005; a total of 3,623 parents attended in 2006;
28 | July/August 2008 | NYSBA Journal
and the courts. The public portion of the Web site sets
forth the protocols, procedures and requirements of the
Program as well as an updated list of certified providers.
Providers and the courts can obtain additional information and assistance in a password-protected portion of
the Web site.
To ensure the delivery of appropriate information in
a way that meets best practices, PEAP has obtained feedback via surveys of judges, judicial officers, and court
clerks; parents’ viewpoints and comments are obtained
from a post-class survey administered to all attendees.
Valuable insight is gleaned from the required reports
filed by providers. Input is also solicited from interested
individuals and groups, such as lawyers and domestic
violence advocates. The information received from these
and other resources has been applied to make changes
and improvements to the Program.
Does Parent Education Make a Difference?
According to a study of the A.C.T. – For the Children
(Assisting Children through Transition) program, which
served as a model for the PEAP curriculum, “[p]arents
reported overwhelmingly that they (a) found the program helpful, (b) have increased their understanding of
their children’s divorce-related needs and how to meet
them, and (c) were planning to put into practice program
principles and skills.”11 A follow-up study was conducted
via telephone interviews with 85 randomly selected parents to assess outcomes at six months and one year after
participating in the A.C.T. program.12 The key results
included “statistically significant decreases in conflict
between parents (especially on child-related issues),
increases in effective parenting practices, decreases in the
need or desire to litigate and, more importantly, increases
in children’s healthy adjustment.”13 While much of the
data upon which the survey relies is subjective and anecdotal, it does indicate that parents are finding value in
that program and their children are finding some relief
as a result of their parents’ heightened awareness of
risk factors and the measures that can be undertaken to
reduce them.
Similar sentiments are echoed by the majority of parents who attend the PEAP’s certified programs. Parents
repeatedly express gratitude for the information they
receive, and the form in which they receive it. Comments
frequently heard from parents who have attended parent
education include, “I wish I had taken this class sooner – I
had no idea that what I was doing could be harming my
child, I would not have done things in the same way” or
“All divorcing or separating parents should be required
to take this course.” This translates to children making
healthier adjustments – one of the key outcomes of the
vice to clients engaged in divorce, separation or custody
and visitation proceedings, practitioners should encourage
parent education attendance.
1. See Joanne Pedro-Carroll & Evelyn Frazee, Program Can Help Protect
Children in Break-ups, N.Y.L.J., Jan. 4, 2001, p. 1, col. 1; Brenda L. Bacon &
Brad McKenzie, Parent Education After Separation/Divorce – Impact of the Level
of Parental Conflict on Outcomes, 42 Fam. Ct. Rev. 85 (Jan. 2004).
2. See Stephen W. Schlissel, Board Developing Standards on Parent Education
Programs,” N.Y.L.J., Oct. 7, 2003, p. 16, col. 1.
3. Virginia Petersen & Susan B. Steinman, Helping Children Succeed After
Divorce. A Court-Mandated Educational Program for Divorcing Parents, 32 Fam. &
Conciliation Cts. Rev. 27, 28 (Jan. 1994).
4. Nancy Ver Steegh, Book Review: The Unfinished Business of Modern Court
Reform: Reflections on Children, Courts, and Custody by Andrew I. Schepard, 38
Fam. L. Q. 449, 460–461 (Summer 2004).
See October 2003 Report of the Advisory Board, Appendix A.
Admin. Order 145/01 (Feb. 1, 2001).
Admin. Order 208/04 (May 12, 2004).
The Parent Education and Awareness Program is a valuable resource that can reduce the polarization often engendered by litigation. It provides much-needed education
and support for separating or divorcing parents, and in
turn, helps make their children’s lives more liveable. While
still relatively new to New York State, a formal system of
parent education is becoming part of the fabric of divorce
or separation when minor children are involved. As a ser-
9. Curriculum content is set forth in detail in the October 2003 Report of the
Advisory Board (pp. 23–48) and on the Program’s Web site, address below.
10. The Program Web site address is <>.
11. October 2003 Report of the Advisory Board at 387, 388.
12. JoAnne Pedro-Carroll, Ph.D. & Evelyn Frazee, J.S.C., A.C.T. – For the
Children: Helping Parents Foster Resilience and Protect Children from Conflict in the
Aftermath of a Break-up, N.Y.L.J., Jan. 4, 2001, col. 1, p. 1.
13. Id.
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NYSBA Journal | July/August 2008 | 29
([email protected]) is a
member of the firm of Shayne,
Dachs, Corker, Sauer & Dachs, LLP,
in Mineola, New York. Mr. Dachs is
a graduate of Columbia College of
Columbia University and received
his law degree from New York
University Law School.
2007 Insurance Law Update
Uninsured, Underinsured and Supplementary Uninsured
Motorist Law – Part II
By Jonathan A. Dachs
his article is the second of two that survey general issues concerning coverage and claims; it will
report on developments in uninsured motorist
(UM), underinsured motorist (UIM) and supplementary
uninsured motorist (SUM) law addressed by the courts in
2007, as well as other issues more specific to these separate categories of coverage.
Conflicts of Law
In Progressive Ins. Co. v. Ramnarain,1 the respondent
(claimant) was a New York resident. At the time of the
accident, he was operating a vehicle registered in New
York and insured by a New York policy. The accident
took place in Pennsylvania and the offending vehicle
was registered in Pennsylvania. The rental contract for
the adverse vehicle was entered into in Pennsylvania
and the insurance policy on that vehicle was contracted
in Pennsylvania. Under New York law (applicable at the
time), vicarious liability attached to the owner of a vehicle
negligently operated in New York.
Under Pennsylvania law, however, vicarious liability
does not attach because to impose liability on a person
for an injury resulting from the operation of a motor
vehicle, he or she must either be in the actual operation or
control thereof, or stand in the relation of master or principal to the person whose act occasions the injury (unless
liability is otherwise imposed by statute). Further, under
Pennsylvania law, a lessor of a motor vehicle is generally
not liable for the negligence of a lessee while operating
30 | July/August 2008 | NYSBA Journal
the vehicle, unless it can be demonstrated that the lessor
was negligent in leasing the vehicle to a person whom
the lessor knew to be incompetent. Since New York and
Pennsylvania laws conflicted on the issue of vicarious
liability, the court was forced to engage in a choice of law
The court applied the analysis set forth in Neumeier v.
Kuehner,2 i.e., the rule that “the conduct of a domiciliary
within their own state which does not cast them liable,
should not result in liability by reason that liability would
be imposed under the tort law of the state of the victim’s
domicile” and that “[i]f the parties are domiciled in different states with conflicting laws, the law applied will usually be determined by the situs of the tort, unless displacing it will advance the relevant substantive law purposes
without impairing the smooth working of the multi-state
system or producing great uncertainty for litigants.” The
court held that Pennsylvania law applied and determined
that vicarious liability could not be imposed upon the
owner of the offending vehicle, and thus its insurer was
not obligated to provide indemnification.
In Jones v. AIG Ins. Co.,3 the defendant issued a Florida
insurance policy covering a vehicle that was registered in
Florida to the tortfeasor, who was purportedly a Florida
resident. The plaintiff, who was injured in an accident in
New York, submitted a claim for no-fault benefits to the
defendant, which claim was denied on the ground that
the policy was revoked for material misrepresentation
– i.e., that the insured actually resided and garaged his
vehicle in New York. New York law does not allow for
retroactive cancellation. Insofar as Florida law allows for
the retroactive cancellation of an insurance policy where
a material misrepresentation is contained within the
insurance application, there was a clear conflict between
the laws of Florida and New York that the court had to
resolve. To do so, the court applied the conflict of law
rules relevant to contracts, i.e., the “center of gravity” or
“grouping of contacts” inquiry, to determine which state
had the most significant contacts to the dispute. This
analysis focused on the place of contracting, the place of
negotiation and performance of the contract, the location
of the subject matter of the contract and the domicile or
place of business of the contracting parties. The court
concluded that Florida law should apply.
The court explained,
Defendant issued its insurance policy to [the insured]
in Florida, who purportedly was a resident of Florida,
for a vehicle registered in Florida, which terms incorporated Florida law. The only connection between the
policy and New York is that [the insured] was driving
the vehicle in New York at the time of the accident.4
Moreover, Florida’s significant contacts with the subject
contract and legitimate governmental interest in protecting its honest policyholders from bearing the burden
of paying claims incurred by dishonest policyholders
outweighed New York’s governmental interest in protecting innocent third parties from being deprived of insurance coverage. This was especially true since New York
statutes provide the means to ensure compensation to
persons injured, due to the fault of uninsured motorists
within the state, by requiring New York policyholders to
purchase uninsured motorist coverage,5 and by establishing and providing insurance through the Motor Vehicle
Accident Indemnification Corp. (MVAIC).6
In Atlantic Mutual Ins. Co. v. Goglia,7 the court applied
the New Jersey law governing the definition of a hit-andrun, which did not require physical contact, rather than
New York’s definition, which required physical contact.
The accident at issue occurred in New Jersey when a New
York resident was caused to swerve to avoid a vehicle
that came to a short stop in front of him and struck a utility pole, which then fell across his vehicle and trapped
him inside it. Relying upon Ins. Law § 5103(e), which provides that every automobile insurance policy procured in
New York must provide the minimum uninsured motorist coverage mandated by the law of another state when
the insured automobile is involved in an accident in that
state, the court held that “the statutory and regulatory
scheme contemplates that the New Jersey requirements
for uninsured motorists coverage should be incorporated
into [this] New York contract.”8
Worth Construction Co. Inc. v. Admiral Ins. Co.9 involved
the issue of coverage for a construction accident. The
court used the “center of gravity” analysis to conclude
that the law of New York – where the accident occurred
and the underlying personal injury action was pending,
rather than the law of New Jersey, where the subject
policy was issued – was applicable. Thus, the court held
that the additional insured’s notice of the accident almost
15 months after learning of it was untimely as a matter
of law, and did not apply New Jersey’s prejudice rule,
which would have resulted in a contrary finding, unless
the insurer could demonstrate prejudice.
Statute of Limitations
In Preferred Mutual Ins. Co. v. Rand,10 the court held that
“[c]laims made under the uninsured motorist endorsement of automobile insurance policies are governed by
the six-year statute of limitations applicable to contract
actions. [Furthermore, t]he claim accrues either when
the accident occurred or when the allegedly offending
vehicle thereafter becomes uninsured.”11 Here, the sixyear statute of limitations began to run when it was
determined that the vehicle was stolen. In One Beacon
Ins. Co. v. Espinoza,12 the court noted that the demand for
arbitration was not barred by the statute of limitations
since it was made within six years after the accident
took place.
Uninsured Motorist Issue: Self-Insurance
The court in ELRAC, Inc. v. Suero stated that “[f]rom
an injured claimant’s perspective, ‘[t]he right to obtain
uninsured motorist protection from a self-insurer is no
less than the corresponding right under a policy issued
by an insurer.’”13 Further, the court held that a claim for
uninsured motorist benefits against a self-insured vehicle
owner, while statutorily mandated, remains contractual
rather than statutory in nature and is, thus, subject to a
six-year statute of limitations.
Insurance Law § 3420(d) speaks to an insurer’s duty
to provide prompt written notice of denial or disclaimer.
A vehicle is considered “uninsured” where the offending vehicle was, in fact, covered by an insurance policy
at the time of the accident, but the insurer subsequently
disclaimed or denied coverage. In Topliffe v. U.S. Art
Co.14 and Only Natural, Inc. v. Realm National Ins. Co.,15
the court held that Ins. Law § 3420(d) does not apply to
claims that do not involve “death or bodily injury.”
In Schulman v. Indian Harbor Ins. Co.,16 the court reaffirmed that
Insurance Law § 3420(d) requires an insurer to
provide a written disclaimer “as soon as is reasonably possible.” The reasonableness of the delay [in
disclaiming] is measured from the time when the
insurer “has sufficient knowledge of facts entitling
it to disclaim, or knows it will disclaim coverage.”
The insurer bears the burden of justifying any delay.
NYSBA Journal | July/August 2008 | 31
[Furthermore, w]hile Insurance Law § 3420(d) speaks
only of giving notice “as soon as is reasonably possible,” investigation into issues affecting an insurer’s
decision whether to disclaim coverage obviously may
excuse delay in notifying the policyholder of a disclaimer.17
Based upon the record before it, the Schulman court
concluded that the defendant failed to establish satisfactorily that the delay in disclaiming was occasioned by its
need to conduct a thorough and diligent investigation.
The complaint in the underlying personal injury action,
and the circumstances surrounding the initial cursory
inquiry by the defendant’s claim analyst, provided sufficient criteria that the insured may have breached the
applicable notice requirements or that a more thorough
investigation would have revealed whether that was so.
The disclaimer was issued approximately 10 months after
the insurer acknowledged the untimely notice of claim,
and almost five months after it learned that the insured
may have been untruthful as to his knowledge of the
claim and commenced investigation into the facts. Thus,
the disclaimer was held to be untimely.
On the other hand, in Tully Construction Co. v. TIG Ins.
Co.,18 the court observed that
it is the insurer’s responsibility to explain its delay in
giving written notice of disclaimer, and an unsatisfactory explanation will render the delay unreasonable
as a matter of law. However, an insurer’s delay in
notifying the insured of a disclaimer may be excused
when the insurer conducts an “investigation into
issues affecting [its] decision whether to disclaim
coverage.” In that case, the burden is on the insurer to
demonstrate that its delay was reasonably related to its
completion of a thorough and diligent investigation.19
In Tully Construction, the court held that a delay of 42
days was not unreasonable where the insurer conducted
a thorough and diligent investigation into whether it had
grounds for a disclaimer based on late notice. The facts
and circumstances of this case presented an issue that
warranted further investigation.
In Hermitage Ins. Co. v. Arm-ing, Inc.,20 the court held
that a delay of two months, occasioned by the insurer’s
need to investigate the claim to determine when its
insured received notice of the accident, was reasonable under the circumstances. In Ace Packing Co., Inc. v.
Campbell Solberg Assocs., Inc.,21 the court held that where
the insurer, upon receipt of late notice, immediately
retained an investigator to investigate the claim and the
issue of late notice (i.e., when the plaintiff first learned
of the accident and/or lawsuit, whether the plaintiff
would claim that prior notice was given), the adjuster
sought to interview the plaintiff about those issues, but
the plaintiff refused to cooperate with the adjuster for
32 | July/August 2008 | NYSBA Journal
30 days, and the insurer disclaimed eight days after it
received the pertinent information from the plaintiff,
the court held that the 38-day delay in disclaiming was
Where the initial notice to the insurer did not make
it readily apparent that the claim was being asserted
under the claimant’s father’s policy, rather than his own
policy, the court, in New York Central Mutual Fire Ins. Co.
v. Gordon,22 held that notice was insufficient to commence
the time running on the insurer’s disclaimer, based upon
an exclusion from coverage under the father’s policy.23
In Massot v. Utica First Ins. Co.,24 the court held that a
disclaimer was sufficiently specific where it identified the
applicable policy exclusion and set forth the factual basis
for the insurer’s position that the claim fell within that
exclusion. It is well established that
[a]n insurance carrier that seeks to disclaim coverage
on the ground of lack of cooperation must demonstrate that it acted diligently in seeking to bring about
the insured’s cooperation; that the efforts employed
by the insurer were reasonably calculated to obtain
the insured’s cooperation; and that the attitude of the
insured, after his [or her] cooperation was sought, was
one of “willful and avowed obstruction.”25
The court upheld the insurer’s lack of cooperation
defense in New South Ins. Co./GMAC Ins. v. Krum,26
where the evidence established that the insurer placed
unsuccessful calls to the insured at his home and work
numbers, sent three certified and regular-mail letters to
his last-known address, personally visited his home on
two occasions and left a message with his mother to stress
the importance of his cooperation, but the insured never
Similarly, in Continental Casualty Co. v. Stradford,28 the
insured ignored a series of written correspondence and
telephone calls from its insurer’s representatives and from
defense counsel, repeatedly refused to provide requested
documents, records and evidence, and unreasonably
refused to consent to a recommended settlement based
upon adverse findings of experts. Notwithstanding his
own request for new counsel, he refused to execute stipulations consenting to a change of attorney. He also failed
to appear for scheduled depositions and meetings. Two
letters sent to him, advising that he risked a disclaimer of
coverage if he continued to breach the cooperation clause
of his policy, were returned as “unclaimed.”
In two other claims, Continental obtained orders in
a declaratory judgment action relieving it of its duty to
defend and indemnify as a result of the insured’s failure
to cooperate in the defense of those claims. Under these
circumstances, the court held that the insurer carried its
burden to establish that it acted diligently in seeking to
bring about the insured’s cooperation; its efforts were
reasonably calculated to obtain the insured’s cooperation;
and the attitude of the insured after his cooperation was
sought was one of “willful and avowed obstruction.”29
The court further held, however, that the insurer’s disclaimer for lack of cooperation was untimely. The court
reasoned that the lapse of time, in excess of two months
a disclaimer issued to an insured for failure to satisfy
the notice requirement of the policy will be effective as
against the injured party as well.”35 In that case, there was
no evidence that the injured plaintiff ever gave notice to
the insurer, and the insurer’s disclaimer also specified the
One of the investigators stated that the insured’s principal avoided all
attempts by the investigator to contact him for approximately one month.
from the date it was readily apparent that the insurer’s
efforts to obtain the insured’s cooperation were fruitless,
until the date it sent its disclaimer, was, without explanation, not “as soon as is reasonably possible” within the
contemplation of Ins. Law § 3420(d). The court specifically rejected the excuse that the insurer “was consulting
with claims counsel to determine whether the six-yearlong, well-documented pattern of willful non-cooperation warranted a disclaimer of coverage.”30
In Preferred Mutual Ins. Co. v. SAV Carpentry, Inc.,31
the insurer presented evidence that it sent the insured
numerous letters regarding its discovery obligations and
hired two separate investigators to locate and interview
the insured’s principal. One of the investigators stated
that the insured’s principal avoided all attempts by the
investigator to contact him for approximately one month.
The court held that this demonstrated that the insurer
diligently sought the insured’s cooperation by means
reasonably calculated to obtain such cooperation, and
that the insured’s non-cooperation consisted of willful
and avowed obstruction. Therefore, the court upheld the
non-cooperation defense.
On the other hand, in State Farm Mutual Automobile Ins.
Co. v. Campbell,32 the court held that the insurer failed to
establish that it was sufficiently diligent or that its efforts
were reasonably calculated to bring about its insured’s
cooperation. In addition, the non-action of the insured
did not constitute “‘willful and avowed obstruction.’”33
In Wood v. Nationwide Mut. Ins. Co., the court observed
that “mere inaction by an insured does not by itself justify
a disclaimer of coverage on the ground of lack of cooperation.”34 Thus, where the insurer offered no explanation
for the failure of its field investigator to travel to the
plaintiff’s house, for the failure of its private investigator
to obtain a statement from the plaintiff or for its failure
to attempt to obtain a transcript of the hearing before the
Workers’ Compensation Board, the court concluded that
the insurer was not entitled to invoke a non-cooperation
defense. In addition, the court held that the insurer’s
19-month delay in disclaiming coverage was unreasonable as a matter of law.
In Maldonado v. C.L.-M.I. Properties, Inc., the court
held that “where an injured party fails to exercise the
independent right to notify an insurer of the occurrence,
plaintiff’s failure to provide timely notice as a separate
ground for disclaiming coverage.
However, in Schlott v. Transcontinental Ins. Co.,36 notice
of the accident, claim and lawsuit was (untimely) provided to the insurance company first – and only – by the
injured parties, as opposed to the insured. The insurer’s
disclaimer letter was addressed to the insured with a “cc”
to the injured parties and only mentioned the insured’s
failure to provide any notice, but did not separately
mention the injured party’s late notice. This is notwithstanding numerous prior decisions, including the Court
of Appeals’s decision in General Accident Ins. Group v.
Cirucci37 and several decisions of the Appellate Division,
including the First Department.38 All of these consistently
held that where notice is provided first (or only) by or on
behalf of the injured party, pursuant to his or her independent right to give notice pursuant to Ins. Law § 3420(a)(3),
the notice of disclaimer must address with specificity the
grounds for disclaiming as to both the injured party and
the insured. In Schlott, the First Department concluded
that Transcontinental “complied with the mandate of
section 3420(d) when it gave notice of disclaimer to the
insured and sent a copy to the injured party.”39
Without citing to any case law and without attempting
to distinguish the above-cited precedents, or the Pattern
Jury Charge based thereon (NYPJI 4:79), which states, “[a]
disclaimer is ineffective as to the injured person where
it relies solely on the insured’s failure to give timely
notice and does not refer to the injured party’s allegedly
untimely notice,” the First Department in Schlott held
that a disclaimer based solely upon the insured’s late
notice will not be effective against the injured party. The
court concluded, “The fact that Defendant omitted from
that notice any specific reference to the injured party’s
own failure to afford the insurer timely notice did not
prejudice Plaintiffs.”40 (It is unclear where, how and/or
why the court obtained the impression that the plaintiffs
were required to demonstrate prejudice as a result of
the defendant’s improper disclaimer under the facts and
circumstances of this case, insofar as no case had ever
previously so held in the context of a case governed by
Ins. Law § 3420(d).)
In GEICO Co. v. Wingo,41 the court held that where
neither the insured nor the injured claimants provided
NYSBA Journal | July/August 2008 | 33
the insurer with notice of the commencement of litigation
by providing a copy of the papers served in the lawsuit,
there was no need to timely disclaim on that ground until
after the insurer first learned of the action, upon receipt
of a copy of a motion for default sent to it by the injured
parties. In Commercial Union Ins. Co. v. Liberty Mutual Ins.
Co.,42 the court held that “since there was no coverage
in the first instance, there was no requirement for [the
insurer] to provide a timely disclaimer.”43 The Second
Department, in Auerbach v. Otsego Mutual Fire Ins. Co.,44
reiterated the general rule that an insurer is not entitled to
insist upon strict adherence to the terms of its policy after
it repudiates liability by disclaiming coverage.
In New York Central Mutual Fire Ins. Co. v. Hildreth,45 the
court restated the well-established rule that a reservation
of rights letter is not a disclaimer. Still, a reservation of
rights letter may be used to rebut a claim that the carrier
waived the right to disclaim by defending its insured. In
that case, the court held that the carrier did, in fact, waive
the right to disclaim by continuing to defend the insured
A reservation of rights letter may
be used to rebut a claim that the
carrier waived the right to disclaim
by defending its insured.
for more than one year after it learned of the grounds for
disclaimer, i.e., settlement of the underlying action without consent. In Progressive Northeastern Ins. Co. v. Heath,46
the fact that the insurer paid no-fault benefits did not
establish that it waived the right to disclaim coverage on
a UM claim (on the basis of a late notice defense).
Cancellation of Coverage
One category of an “uninsured” motor vehicle is where
the policy of insurance for the vehicle had been canceled
prior to the accident. Generally speaking, in order to cancel an owner’s liability insurance policy, an insurer must
strictly comply with the detailed and complex statutes,
rules and regulations governing notices of cancellation
and termination of insurance, which differ depending
upon whether, e.g., the vehicle at issue is a livery or private passenger vehicle, whether the policy was written
under the Assigned Risk Plan and/or was paid for under
premium financing contract.
In Auto One Ins. Co. v. Santos,47 the court held that the
12-point type requirement be used in cancellation notices
is “unambiguous and absolute,” thereby indicating that
there must be strict compliance with that statutory condition. In Halycon Ins. Co. v. Fox,48 the court credited the
testimony of the Assistant Vice President of Claims of a
company that handled claims on behalf of the insurer,
in which he described the manner in which his company stored and printed its electronic records, and gave
34 | July/August 2008 | NYSBA Journal
a detailed explanation as to why the point size on the
version of the notice of cancellation initially submitted to
the court differed from the version of the notice of cancellation sent to the insured, which did, in fact, comply with
the statutory point size requirements. The fact that the
witness did not personally print the replica of the notice
of cancellation went to the weight to be accorded to the
replica, not its admissibility.
In Government Employees Ins. Co. v. Lopez,49 the court
held that a premium finance agency that sought to cancel
an assigned risk policy because of the insured’s failure
to make required payments under the premium finance
agreement did not have to advise the insured of a particular “right of review” in order for the cancellation to
be valid.
While Banking Law § 576(1)(c) and (d) sets forth
detailed requirements for the form and content of
the cancellation notice that a premium finance company must send to the insured, these provisions do
not require the agency to advise the insured that he
or she has the right to have the NYAIP’s Governing
Committee review the cancellation of the assigned risk
automobile insurance policy.50
In Thibeault v. Travelers Ins. Co.,51 the court held that
the insurer met its initial burden of proving that its policy
had been canceled by describing the office practice it used
to ensure that notices of cancellation are properly mailed.
This raised a presumption that the insureds had received
the notice, which shifted the burden to the insureds to
rebut the presumption. While noting that “an insured’s
denial of receipt, standing alone, is insufficient to rebut
the presumption,”52 the court noted that the insureds
submitted additional evidence that there was an omission in the address as stated on the policy application
and used by the insurer, i.e., omitting the name of the
insured’s business under which the post office box was
registered. The court found that this prevented delivery
of the notice, which was sufficient to rebut the presumption and raise an issue of fact as to delivery of the notice.
In Progressive Classic Ins. Co. v. Kitchen,53 the court held
that in the absence of proof that the insurer filed a copy
of its notice of cancellation with the Department of Motor
Vehicles within 30 days of the effective date of the cancellation, the cancellation was ineffective as against persons
other than the named insured and members of the named
insured’s household. In Jones v. AIG Ins. Co.,54 the court
noted that New York law does not allow for retroactive
cancellation of motor vehicle liability insurance polices.
Stolen Vehicle
Automobile insurance policies generally exclude coverage for damages caused by drivers of stolen vehicles
and/or drivers operating without the permission or
consent of the owner. In such situations, the vehicle at
issue is considered “uninsured” and the injured claimant
will be entitled to make an uninsured motorist claim. In
McDonald v. Rose,55 the court determined, as a matter of
law, that the offending vehicle was stolen, based upon
documentary evidence consisting of a theft report from
the date of the accident, an affidavit of theft filed with the
insurer, the accident report indicating that the accident
occurred 11 days after the vehicle was reported stolen
and that the driver fled the scene, and the affidavit of the
insured’s husband, who had borrowed the vehicle on the
day it was stolen and asserted facts relating to the theft.
One of the requirements for a valid uninsured motorist
claim based upon a hit-and-run is “physical contact”
between an unidentified vehicle and the person or
motor vehicle of the claimant. “The insured has the burden of establishing that the loss sustained was caused
by an uninsured vehicle, namely that physical contact
occurred, that the identity of the owner and operator of
the offending vehicle could not be ascertained, and that
the insured’s efforts to ascertain such identity were reasonable.” In Kobeck v. MVAIC,56 the court observed that
the requisite physical contact must result from a collision
and that “[t]he physical contact requirement is intended
to prevent against fraudulent claims, hit-and-run claims
being by their nature ‘easy to allege and difficult to disprove.’”57
Another requirement for a valid “hit-and-run” claim is
a report of the accident within 24 hours or as soon as reasonably possible to a police officer, peace or judicial officer, or to the Commissioner of Motor Vehicles. In Caceres
v. MVAIC, the court held that where a question exists as
to whether an accident report was timely filed pursuant
to Ins. Law § 5208(2)(A) “and the issue cannot be resolved
without a determination of the credibility of [the claimant],” an evidentiary hearing is appropriate.58
In Rojas v. MVAIC,59 the claimant submitted an affidavit, stating that he was injured when struck by a hitand-run vehicle, in support of his application for leave
to sue MVAIC. However, MVAIC submitted an FDNY
Ambulance Call Report in which the claimant was
reported to have stated that he was injured while defending himself and had punched a man. These conflicting
accounts were held to create an issue of fact to be resolved
at a hearing.
Yet another requirement for a valid hit-and-run claim
is the filing of a statement under oath that the claimant
has a cause of action against a person whose identity is
unascertainable. In Eveready Ins. Co. v. Mesic,60 the court
held that the claimant’s failure to file a sworn statement
with the insurer after the alleged hit-and-run accident
vitiated coverage. The fact that the insurer received some
notice of the accident by way of an application for no-fault
benefits did not negate the breach of the policy requirement of a sworn statement as to the hit-and-run.61
Insurer Insolvency
The SUM endorsement under Regulation 35-D includes
within the definition of an “uninsured” motor vehicle a
vehicle whose insurer “is or becomes insolvent.” Under
that endorsement, and whether or not they are covered
by a Security Fund, any and all insolvencies give rise to
a valid SUM claim.62 In cases involving mandatory UM
coverage, as opposed to SUM coverage, only insolvencies
that are not covered by a Security Fund give rise to a valid
UM claim.
In AIG Claims Services, Inc. v. Bobak,63 although the
offending vehicle’s insurer became insolvent, there was
evidence that another insurer had issued an excess policy
on the offending vehicle and the vehicle owner may have
had additional coverage. This led the claimant to file an
SUM claim with his own insurer, and thus the arbitration
was stayed to determine the issues of insurance coverage.
In Progressive Ins. Co. v. Elias,64 the issue before the
court was whether a letter from the New York State
Liquidation Bureau advising a claimant that the PMV
Fund (Public Motor Vehicle Liability Security Fund) was
“financially strained” constitutes a denial of coverage
within the meaning of Ins. Law § 3420(f)(1). There was a
hearing at which the parties, including the Superintendent
of Insurance, relied upon their evidentiary submissions,
which included a copy of the Liquidation Bureau’s letter,
and an affidavit from the Supervisor of the PMV Fund,
with copies of the Fund’s income and disbursement
reports for the pertinent period. At the hearing the parties recited the history of the PMV Fund and the pre- and
post-Regulation 35-D case law on the issue of insolvency
and UM coverage. Justice Jaime A. Rios noted that insofar as the insured did not purchase SUM coverage, but
only mandatory, basic UM coverage and the tortfeasor’s
insolvent insurer paid into the PMV Fund, the claimant
was required to seek payment from the Fund rather than
his or her own insurer, unless the insured could establish
that the Fund “[was] denying them coverage based upon
its inability to pay any allowed claims.”65
The court went on to hold that
notwithstanding the “financial strain” language in the
letter of June 27, 2005, the letter from the Liquidation
Bureau/PMV Fund without more, does not demonstrate an inability of the PMV Fund to pay allowed
claims. To the contrary, the letter confirms that the
claim is a covered claim and advises the Reliance
insured . . . of a certain set of procedures to follow in
the event a claim is pursued against him.66
Indeed, the court noted that the Fund supervisor’s affidavit “sets forth that all allowed claims applied for payment
out of the PMV Fund by the New York State Supreme
Court are processed and paid by the Liquidation Bureau
in order of receipt.” In addition, based upon that affidavit, the court held, “[I]t appears that as of December 31,
2006, the PMV fund had a balance of $113,352.82, unpaid
NYSBA Journal | July/August 2008 | 35
claim obligations of $3,464,353.34, and the claims next in
line to be paid by the PMV fund were received by the
Bureau on February 1, 2006.”67
The court further noted, “Pursuant to Insurance Law
§ 7606, insurers issuing insurance policies or surety bonds
described in VTL § 370 shall continue to make payments
of three percent of all net direct written premiums of such
policies to the PMV fund on a quarterly basis until the
net value of the PMV fund equals fifteen percent of the
outstanding claim reserves of all authorized insurers contributing to the PMV fund.” The court clearly stated that
the PMV Fund did not have sufficient funds to pay all
pending claims at once. However, the Fund supervisor’s
affidavit and annexed financial documents demonstrated
that “despite some delay, allowed claims are being paid.”
Thus, since the evidence failed to demonstrate that the
claimants had been denied compensation from the PMV
Fund due to its inability to pay, they were “unable to
establish that the [tortfeasor’s] vehicle was an uninsured
motor vehicle pursuant to Insurance Law § 3420(f)(1)
and, thus, are precluded from seeking UM arbitration
from Progressive.”68
Actions Against MVAIC
Insurance Law § 5218 provides as follows:
(c) In any action in which the plaintiff is a qualified
person, for the death of, or bodily injury to, any person
arising out of the ownership, maintenance or use of a
motor vehicle in this state and judgment is rendered
for the defendant on the sole ground that the death
or personal injury was occasioned by a motor vehicle:
(i) the identity of which, and of the owner and operator
of which, has not been established, or (ii) which was in
the possession of some person other than the owner
or his agent without the consent of the owner and the
identity of the operator has not been established, that
ground shall be stated in the judgment. The plaintiff,
upon complying with paragraph one of subsection
(a) of section five thousand two hundred eight of this
article, may within three months from the date of the
entry of the judgment make application to bring an
action upon the cause against the corporation in the
manner provided in this section.
(d) In any action commenced in respect of the death
or injury of any person arising out of the ownership,
maintenance or use of a motor vehicle in this state the
plaintiff shall be entitled to make the corporation a
party defendant if the court has entered the order provided for in subsection (a) of this section.
In Steele v. MVAIC,69 the court held that the threemonth extension provided in Ins. Law § 5218(c) is not
a limitations period but, rather, a savings clause. This
clause is intended to provide qualified persons, who
were unsuccessful in litigation in establishing that the
putative owner or operator of a hit-and-run vehicle were
36 | July/August 2008 | NYSBA Journal
actually involved in the accident, additional time to sue
MVAIC in the event the applicable statute of limitations
(i.e., three years for personal injury actions (CPLR 214))
has run in the interim. In so holding, the court expressly
disagreed with two decisions of the Second Department,
which interpreted the three-month provision of § 5218(c)
as a strict limitations period that supplants the applicable
statute of limitations.70
The personal injury action in Steele was terminated by
a stipulation of discontinuance rather than a judgment.
Moreover, the court held that the claimant’s application
for leave to sue MVAIC, brought within three years after
her reaching majority, and only after she had made all
reasonable efforts to ascertain the identity of the owner
and operator of the offending vehicle, was timely and
properly made.
Underinsured Motorist Issues: Trigger of Coverage
In GEICO v. Young,71 the court held that the tortfeasor’s
vehicle was not underinsured where the limits of the
tortfeasor’s bodily injury coverage and the limits of the
claimant’s bodily injury coverage were identical. The
court reached this conclusion despite the fact that payments were made under the tortfeasor’s policy to more
than one claimant.
In Allstate Ins. Co. v. Dawkins,72 the court relied on the
Regulation 35-D SUM endorsement, which provides that
an uninsured motor vehicle includes a vehicle for which
there is bodily injury liability insurance coverage applicable at the time of the accident. However, in Dawkins
the amount of the insurance coverage was reduced by
payments to other persons injured in the accident, to an
amount less than the bodily injury liability limits of the
insured’s policy. In this case, the court held that although
the bodily injury limits of the tortfeasor’s policy and the
claimant’s policy were the same, i.e., $25,000/$50,000, and
since only $12,500 in coverage remained under the tortfeasor’s policy after paying claims of two other individuals, the offending vehicle qualified as “uninsured.” Thus,
the claimant had a valid SUM claim subject to the offset
provisions of the policy.
Offset Provision
In GEICO v. Young, the court held that the offset or
reduction in coverage provision of Condition 6 to the
Regulation 35-D SUM endorsement was “not ambiguous and misleading.” The court then held that GEICO
properly offset the full $50,000 received by the claimants from the tortfeasor’s insurer against the SUM limits
under the GEICO policy, thereby precluding any recovery under the SUM endorsement. In Hament v. State
Farm Mutual Automobile Ins. Co.,73 the court held that
payments received from both the underinsured driver
and the vicariously liable owner of that vehicle were to
be aggregated for purposes of reducing the SUM limits
under the “Maximum SUM Payments” provision of the
Settlement Without Consent
In New York City Transit Authority v. Williams,74 the court
granted the Petition to Stay Arbitration on the basis
of a release signed by the claimant. This was presumably accomplished without the consent of the Transit
Authority, a self-insured party.
724, 732 N.Y.S.2d 66 (2d Dep’t 2001); State Farm Mut. Auto Ins. Co. v. Cooper,
303 A.D.2d 414, 756 N.Y.S.2d 87 (2d Dep’t 2003); GEICO v. Jones, 6 A.D.3d 534,
774 N.Y.S.2d 435 (2d Dep’t 2004); Hereford Ins. Co. v. Mohammod, 7 A.D.3d 490,
776 N.Y.S.2d 87 (2d Dep’t 2004); Halali v. Evanston Ins. Co., 8 A.D.3d 431, 779
N.Y.S.2d 119 (2d Dep’t 2004) ; Pawley Interior Contracting, Inc. v. Harleysville Ins.
Co., 11 A.D.3d 595, 782 N.Y.S.2d 660 (2d Dep’t 2004); Vacca v. State Farm Ins. Cos.,
15 A.D.3d 473, 790 N.Y.S.2d 177 (2d Dep’t 205); Shell v. Fireman’s Fund Ins. Co.,
17 A.D.3d 444, 793 N.Y.S.2d 110 (2d Dep’t 2005); Utica Mutual Ins. Co. v. Gath,
265 A.D.2d 805, 695 N.Y.S.2d 839 (4th Dep’t 1999).
39. 41 A.D.3d at 340.
40. Id.
41. 36 A.D.3d 908, 830 N.Y.S.2d 215 (2d Dep’t 2007).
15 Misc. 3d 897, 838 N.Y.S.2d 375 (Sup. Ct., Queens Co. 2007).
42. 36 A.D.3d 645, 828 N.Y.S.2d 479 (2d Dep’t 2007).
31 N.Y.2d 121, 335 N.Y.S.2d 64 (1972).
15 Misc. 3d 1123(A), 841 N.Y.S.2d 219 (Sup. Ct., Queens Co. 2007).
43. Id. at 646; see also Solomon v. USF&G Co., 43 AD3d 333, 841 NYS2d 39 (1st
Dep’t 2007).
See N.Y. Insurance Law § 3420(f) (“Ins. Law”).
See Ins. Law §§ 5201–5225.
44 A.D.3d 558, 845 N.Y.S.2d 2 (1st Dep’t 2007).
Id. at 560.
9. 40 A.D.3d 423, 836 N.Y.S.2d 155 (1st Dep’t 2007), rev’d on other grounds, 2008
WL1899978 (2008).
10. 15 Misc. 3d 1112(A), 839 N.Y.S.2d 436 (Sup. Ct., Richmond Co. 2007).
11. Id. (citations omitted).
12. 37 A.D.3d 607, 830 N.Y.S.2d 287 (2d Dep’t 2007).
44. 36 A.D.3d 840, 829 N.Y.S.2d 195 (2d Dep’t 2007).
45. 40 A.D.3d 602, 835 N.Y.S.2d 409 (2d Dep’t 2007).
46. 41 A.D.3d 1321, 837 N.Y.S.2d 476 (4th Dep’t 2007).
47. 14 Misc. 3d 1220(A), 836 N.Y.S.2d 483 (Sup. Ct., Suffolk Co. 2007).
48. 44 A.D.3d 662, 843 N.Y.S.2d 165 (2d Dep’t 2007).
49. 44 A.D.3d 256, 841 N.Y.S.2d 130 (2d Dep’t 2007).
50. See also AIU Ins. Co. v. Rodriguez, 43 A.D.3d 1042, 842 N.Y.S.2d 502 (2d Dep’t
51. 37 A.D.3d 1000, 830 N.Y.S.2d 387 (3d Dep’t 2007).
52. Id. at 1001.
53. 46 A.D.3d 333, 850 N.Y.S.2d 1 (1st Dep’t 2007).
13. 38 A.D.3d 544, 545, 831 N.Y.S.2d 475 (2d Dep’t 2007) (citations omitted).
54. 15 Misc. 3d 1123(A), 841 N.Y.S.2d 219 (Sup. Ct., Queens Co. 2007).
14. 40 A.D.3d 967, 838 N.Y.S.2d 571 (2d Dep’t 2007).
55. 37 A.D.3d 781, 830 N.Y.S.2d 765 (2d Dep’t 2007).
15. 37 A.D.3d 436, 827 N.Y.S.2d 880 (2d Dep’t 2007).
56. 16 Misc. 3d 592, 836 N.Y.S.2d 864 (Sup. Ct., Madison Co. 2007).
16. 40 A.D.3d 957, 836 N.Y.S.2d 682 (2d Dep’t 2007).
57. Id. at 597 (citing Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 328, 574 N.Y.S.2d
927 (1991)).
17. Id. at 957–58 (citations omitted); see also Wood v. Nationwide Mut. Ins. Co., 45
A.D.3d 1285, 845 N.Y.S.2d 641 (4th Dep’t 2007).
58. 37 A.D.3d 215, 215, 829 N.Y.S.2d 487 (1st Dep’t 2007).
18. 43 A.D.3d 1150, 842 N.Y.S.2d 528 (2d Dep’t 2007).
59. 37 A.D.3d 216, 830 N.Y.S.2d 65 (1st Dep’t 2007).
19. Id. at 1152 (citations omitted).
60. 37 A.D.3d 602, 831 N.Y.S.2d 426 (2d Dep’t 2007).
20. 46 A.D.3d 620, 847 N.Y.S.2d 628 (2d Dep’t 2007).
61. See also Hanover Ins. Co. v. Etienne, 46 A.D.3d 825, 848 N.Y.S.2d 312 (2d
Dep’t 2007).
21. 41 A.D.3d 12, 835 N.Y.S.2d 32 (1st Dep’t 2007).
22. 46 A.D.3d 1296, 850 N.Y.S.2d 653 (3d Dep’t 2007).
23. See also Temple Constr. Corp. v. Sirius Am. Ins. Co., 40 A.D.3d 1109, 837
N.Y.S.2d 689 (2d Dep’t 2007) (8-day delay not untimely; 47-day delay unreasonable where record is silent as to when insurer completed its investigation).
62. See Am. Mfrs. Mut. Ins. Co. v. Morgan, 296 A.D.2d 491, 746 N.Y.S.2d 726 (2d
Dep’t 2002).
63. 39 A.D.3d 1178, 835 N.Y.S.2d 925 (4th Dep’t 2007).
64. 15 Misc. 3d 1113(A), 839 N.Y.S.2d 436 (Sup. Ct., Queens Co. 2007).
24. 36 A.D.3d 499, 828 N.Y.S.2d 342 (1st Dep’t 2007).
65. Id.
25. Thrasher v. U.S. Liability Ins. Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793 (1967).
66. Id.
26. 39 A.D.3d 1110, 835 N.Y.S.2d 479 (3d Dep’t 2007).
67. Id.
27. See also Gen. Assurance Co. v. Garcia, 37 A.D.3d 466, 830 N.Y.S.2d 237 (2d
Dep’t 2007).
68. Id.; see also to same effect, Integon Nat’l Ins. Co. v. Cittadino, Queens Co. Sup.,
Index No. 15836/04 (Rios, J.), decided March 28, 2007 (as of August 24, 2006,
the PMV Fund had a balance of $2,361,054.07, unpaid claim obligations of
$6,246,404.40, and the claims next in line to be paid from the PMV Fund were
received by the Bureau on July 11, 2005); Mejia v. Santos, N.O.R., N.Y.L.J., Mar.
16, 2007, p. 24, col. 1 (Sup. Ct., Bronx Co. 2007) (notice stating that claim is
covered by PMV Fund is neither a denial or disclaimer; the PMV Fund may
ultimately be a source of recovery; current balance of $126,103.82 as of June
12, 2006, measured against claim obligations of $5,619,576.20, demonstrates
Fund’s financial strain, but Fund is a revolving fund, continually replenished;
delay in payment does not equate with uncollectibility). See Norman H. Dachs
& Jonathan A. Dachs, The “Top 10” Insolvency and the PMV Fund, N.Y.L.J., May
8, 2007, p. 3, col. 1.
28. 46 A.D.3d 598, 847 N.Y.S.2d 631 (2d Dep’t 2007).
29. Id. at 600.
30. Id. at 601.
31. 44 A.D.3d 921, 844 N.Y.S.2d 363 (2d Dep’t 2007).
32. 44 A.D.3d 1059, 845 N.Y.S.2d 88 (2d Dep’t 2007).
33. Id. at 1059 (citation omitted); see also N.Y. Cent. Mut. Fire Ins. Co. v. Rafailov,
41 A.D.3d 603, 840 N.Y.S.2d 358 (2d Dep’t 2007).
34. 45 A.D.3d 1285, 1287, 845 N.Y.S.2d 641 (4th Dep’t 2007).
35. 39 A.D.3d 822, 823, 835 N.Y.S.2d 335 (2d Dep’t 2007).
36. 41 A.D.3d 339, 838 N.Y.S.2d 559 (1st Dep’t 2007), leave to appeal denied, 9
N.Y.3d 817, 851 N.Y.S.2d 126 (2008).
37. 46 N.Y.2d 862, 414 N.Y.S.2d 512 (1979).
38. See Carter v. Mount Vernon Fire Ins. Co., 188 A.D.2d 430, 591 N.Y.S.2d 1022
(1st Dep’t 1992); Legion Ins. Co. v. Weiss, 282 A.D.2d 576, 723 N.Y.S.2d 235
(2d Dep’t 2001); Vanegas v. Nationwide Mut. Fire Ins. Co., 282 A.D.2d 671, 723
N.Y.S.2d 516 (2d Dep’t 2001); State Farm Mut. Auto Ins. Co. v. Joseph, 287 A.D.2d
69. 39 A.D.3d 78, 829 N.Y.S.2d 467 (1st Dep’t 2007).
70. See Gittens v. MVAIC, 7 A.D.3d 528, 775 N.Y.S.2d 571 (2d Dep’t 2004); Kearse
v. MVAIC, 28 A.D.2d 703, 280 N.Y.S.2d 917 (2d Dep’t 1967).
71. 39 A.D.3d 751, 835 N.Y.S.2d 283 (2d Dep’t 2007).
72. 17 Misc. 3d 1117(A), 851 N.Y.S.2d 62 (Sup. Ct., Queens Co. 2007).
73. 2007 WL 143036 (S.D.N.Y. 2007).
74. 36 A.D.3d 706, 826 N.Y.S.2d 580 (2d Dep’t 2007).
NYSBA Journal | July/August 2008 | 37
DAVID H. PEIREZ is a partner
associate at Reisman, Peirez, and
Reisman, LLP, a general practice
law firm located in Garden City,
New York. They were recently
involved in litigation that addressed
the issues discussed herein.
Members of a Limited
Liability Company May
Now Commence Derivative
Actions on Behalf of the LLC
By David H. Peirez and Gabrielle R. Schaich
his past Valentine’s Day, a closely divided Court
of Appeals decided an issue that had been a
point of controversy between the First and Second
Departments of the Appellate Division: Whether a single
member of a limited liability company may commence
a derivative action on behalf of the company, even in
the absence of express language in the Limited Liability
Company Law (LLCL) permitting such a suit, and notwithstanding evidence in the legislative history that
state lawmakers actually had rejected such a right.
Nevertheless, by a four-to-three vote, and over a vigorous
dissent, the Court held in the affirmative.
Lower Courts Hold the Statute
Does Not Permit Derivative Actions
Prior to the decision by the Court of Appeals, courts – especially the Appellate Division, Second Department – had
held that the statute simply did not allow for derivative
actions by individual members of a limited liability company. They pointed to legislative history and found that
38 | July/August 2008 | NYSBA Journal
when the New York State Legislature enacted the Limited
Liability Company Law in 1994, a conscious decision was
made to eliminate that right.1 Prior drafts of the bill had
included such a right, but this provision was eliminated
as a way to help the bill pass.2
The Second Department thus had held that the deliberate omission of such a remedy in the statute was fatal
to any such action.3 Instead, pursuant to LLCL § 408(b),
any lawsuit brought on behalf of a limited liability company must be approved by a majority of the managers
of the company.4 Managing members have statutory and
common law fiduciary duties in connection with their
operation of a limited liability company.5 Accordingly, the
decision to sue remained with managers, who are in turn
responsible to the members of the company by virtue of
their fiduciary duties.6
Minority members of limited liability companies may,
of course, sue managing members in a direct action.7
These claims are founded on a right that belongs to the
minority member personally.8
The view of the Second Department on the issue
was acknowledged and followed by the New York State
Supreme Court, New York County, in Tzolis v. Wolff.9
In Tzolis, the supreme court noted that the Second
Department had been the only one of the Appellate
Division courts to address directly the question of limited
liability company derivative actions and recognized that,
therefore, it was obligated to follow Second Department
precedent on the issue – notwithstanding some nonbinding federal court precedent to the contrary.10
The First Department Recognizes a Member’s
Common Law Right to Bring a Derivative Action
On appeal, the First Department reversed, in part, the
supreme court’s decision in Tzolis.11 The Appellate
Division ruled that “the mere omission of [language in the
Limited Liability Company Law granting a member of a
limited liability company standing to sue derivatively],
a factor other courts see as a sole or significant reason to
reject standing, is not enough to deprive a limited partner
of the right to assert a claim on behalf of the company.”12
The court based its reversal on four premises:
(1) the historic judicial recognition of the common-law
right to bring a derivative action on behalf of a corporation or a limited partnership, both of which share
many of a limited liability company’s characteristics;
(2) the principles of statutory construction, which
provide that only a clear statement of legislative intent
may override the common law; (3) the fact that most
states provide a statutory right to bring a derivative
claim; and (4) the unpersuasive rationale of those decisions which have rejected derivative claims for limited
liability companies.13
as a remedy for limited liability company members. The
Court noted, however, that “since the Legislature obviously did not intend to give corporate fiduciaries a license
to steal, a substitute remedy must be devised.”17 Judge
Smith recognized that there are direct remedies for limited
liability company members, but that such remedies carry
risks that derivative actions do not. For example, where
one member is sued by all other members of a limited
liability company in a direct suit for stealing $100, there
is a likelihood of a double recovery; such may be avoided
by means of a derivative action.
The majority further noted that, notwithstanding the
events preceding passage of the Limited Liability Company
Law, as carefully outlined in the dissenting opinion (see
discussion infra), the legislative history was devoid of
any evidence that there had been an attempt or wish to
eliminate, rather than to merely limit or reform, derivate
suits. In addition, nothing in that history revealed what
questions were raised about the derivate rights provisions
later removed prior to the law’s enactment, or why the
derivative rights provisions had jeopardized the bill’s passage. Judge Smith opined that some legislators did expect,
although no one expressed the expectation, that there
would be no derivative suits; meanwhile, it was entirely
reasonable for other legislators to have expected the courts
to follow established case law and recognize derivate suits
in the absence of a clear prohibition. Indeed, he noted, “[i]t
is even possible that neither [the Senate nor the Assembly]
expected anything, except that the problem would cease
to be the Legislature’s and become the courts’.’”18
After Tzolis, several First Department decisions similarly
upheld derivative actions brought on behalf of limited
liability companies.14 However, the First Department had
granted leave to appeal its Tzolis v. Wolff decision to the
Court of Appeals. On February 14, 2008, New York State’s
highest court issued a four-to-three decision on the issue,
thereby settling the First and Second Department split.15
Four to Three, the Court of Appeals Holds LLC
Members May Bring Derivative Suits
The Hon. Robert S. Smith wrote the Tzolis v. Wolff16 majority opinion, in which Judges Judith S. Kaye, Carmen
Beauchamp Ciparick, and Eugene F. Pigott, Jr., concurred.
Judge Smith introduced the majority decision by noting
that derivative suits have been a part of New York State’s
general corporate law since at least 1832, and that the
common law had permitted derivative actions brought
on behalf of ordinary business corporations and partnerships prior to the passage of any statutory authority.
The majority conceded that the New York State
Legislature had removed sections of the proposed Limited
Liability Company Law providing for derivative actions
NYSBA Journal | July/August 2008 | 39
Judge Smith summed up the majority view by explaining, “[t]he legislative history is, in short, far too ambiguous to permit us to infer that the Legislature intended
wholly to eliminate, in the LLC context, a basic, centuriesold protection for shareholders, leaving the courts to
devise some new substitute remedy.”19
The Dissent
Joined by Judges Victoria A. Graffeo and Theodore J. Jones,
the Hon. Susan P. Read began her vigorous dissent – an
opinion nearly double the length of the majority’s – by
warning, “Never before has a majority of the Court read
into a statute provisions or policy choices that the enacting
Legislature unquestionably considered and rejected.”20
Judge Read carefully detailed events preceding the
passage of the Limited Liability Company Law, setting forth the basis for the Legislature’s deletion of the
express right of limited liability company members to
bring derivative actions. The dissent explained that on
March 31, 1992, a limited liability company bill was introduced in the New York State Assembly. It was substantially identical to the ultimately enacted Limited Liability
Company Law, with one exception: the bill authorized
members to bring derivative actions by or against a limited liability company. On May 12, 1992, another limited
liability company bill was introduced, but this time in
the New York State Senate. The bill was substantially
identical to the Assembly bill with the exception of the
absence of language authorizing derivative actions. Judge
Read pointed out that, when negotiating the bills, legislators expressly noted either the inclusion or exclusion of
the right to bring derivative actions. Nevertheless, the
Assembly and Senate failed to pass a limited liability
company bill in 1992 and resumed efforts to negotiate a
mutually agreeable statute in 1993.
On July 7, 1993 the Assembly passed a bill that
allowed for derivative actions, and delivered it to the
Senate for consideration. The Senate did not act on the
bill, thereby delaying passage of any limited liability
company law for another year. It was not until April 1994
that an Assembly bill was introduced into the Senate;
the bill did not authorize derivative actions (as had been
the case with every prior Senate bill). Judge Read noted
that the bill was quickly adopted by both the Assembly
and Senate, and was delivered to the Governor on July
15, 1994, which he signed into law on July 26, 1994. She
concluded that the Senate had refused to pass a limited
liability company statute if it allowed for derivative suits;
therefore, the deletion of this provision represented a legislative bargain which enabled the bill to pass.
Judge Read next addressed the majority’s discussion
of the common law, under which partners had a right
to bring a derivative action on behalf of the partnership
prior to the passage of the Partnership Law. This statute
ultimately codified the right. Judge Read distinguished
40 | July/August 2008 | NYSBA Journal
this from the majority’s adoption of a common law right
permitting members of limited liability companies to
bring derivative actions. She noted that, with regard to
partnership law, there was no evidence that the Legislature
had ever considered and rejected the issue of whether to
authorize partners to bring derivative suits. The dissent
additionally noted that the Partnership Law contains a
section providing that, in cases not covered thereunder, the
rules of law and equity shall govern. There is no analogous
section in the Limited Liability Company Law.
Clearly troubled with the majority decision, the dissent stated that “the modern Legislature reasonably
expects the judiciary to respect its policy choices.” For
this reason, Judge Read explained, the Court cannot
expect that the Legislature would have written an explicit
prohibition against derivative actions into the law. Judge
Read further noted that there is no settled law, in New
York or elsewhere, on the subject of derivative rights for
limited liability company members, and “whether or not
to vest LLC members with the right to sue derivatively is
a Legislature’s choice to make, not ours.”21
Finally, the dissent pointed out that the majority did
not refer to a single case where the Court of Appeals
had read into a statute a provision or policy choice that
the Court knew the enacting Legislature had rejected.
Instead, Judge Read cited several New York cases finding that the deletion of a certain statutory provision was
indicative of legislative intent.22
The dissent closed with a rather pointed summation:
Fourteen years after the fact the majority has unwound
the legislative bargain. The proponents of derivative
rights for LLC members – who were unable to muster
a majority in the Senate – have now obtained from the
courts what they were unable to achieve democratically. Thanks to judicial fiat, LLC members now enjoy
the right to bring a derivative suit. And because created by the courts, this right is unfettered by the prudential safeguards against abuse that the Legislature
has adopted when opting to authorize this remedy in
other contexts.
Presumably, those businesses electing to organize as
LLCs relied on what the Limited Liability Company
Law says, and counted on the New York judiciary to
interpret the statute as written. Instead, the majority
has effectively rewritten the law to add a right that
the Legislature deliberately chose to omit. For a Court
that prides itself on resisting any temptation to usurp
legislative prerogative, the outcome of this appeal is
In Tzolis, the Court of Appeals opened up two doors: the
first is that New York law permits members of limited
liability companies to bring derivative actions on behalf
of their companies; the second (and perhaps the more
ERIC W. PENZER ([email protected]) is a partner in the trusts and estates litigation department
at Farrell Fritz, P.C., in Uniondale. Mr. Penzer is a graduate of the State University of New York at
Stony Brook and received his J.D. from Fordham University School of Law.
ROBERT M. HARPER ([email protected]) is an associate at Farrell Fritz, P.C. He is a graduate of
Boston College and received his J.D. from Hofstra University School of Law.
Vacating Surrogate’s Court
Judgments, Orders and Decrees
lthough N.Y. Civil Practice
Law and Rules 5015 contains
a list of grounds for vacating
a judgment, order or decree, that list is
not exhaustive. The courts have recognized additional grounds upon which
to grant vacatur. This article explores
the statutory and common law bases
upon which to secure the vacatur of a
surrogate’s court judgment, order or
decree, and addresses the time period
within which a party seeking such
relief must do so.
Grounds for Vacatur
Absent statutory guidance with respect
to the vacatur of judgments, orders
and decrees in the N.Y. Surrogate’s
Court Procedure Act, the CPLR governs requests for such relief in the surrogate’s courts.1 The grounds enumerated in CPLR 5015 apply and provide
that judgments, orders and decrees
may be vacated for the following reasons:
1. Excusable default – if the application is made within one year after
service of a copy of the decree or
order with written notice of its
entry upon the applicant, or if
the decree or order was entered
by the applicant, then within one
year after such entry.
2. Newly discovered evidence
which if introduced at the trial,
would probably have produced a
different result and which could
not have been discovered in time
to move for a new trial under
CPLR 4404.
3. Fraud, misrepresentation or other
misconduct of an adverse party.
4. Lack of jurisdiction to render the
judgment or order.
5. Reversal, modification or vacatur
of a prior decree or order upon
which it is based.2
Newly Discovered Evidence
The New York Court of Appeals recently applied CPLR 5015 in the context of
a motion to vacate a probate decree
on the grounds of newly discovered
evidence.3 In American Committee for
Weizmann Institute of Science v. Dunn,
the petitioner, a charity to which
the decedent allegedly promised to
bequeath her cooperative apartment,
commenced a proceeding to vacate a
probate decree.4 The petitioner based
its request for relief on two grounds:
(1) newly discovered evidence, namely, letters from the decedent’s former
attorney and the Institute’s vice president, both of which, the petitioner
contended, evidenced the decedent’s
intent to leave her co-op to the Institute
and “form[ed] an integrated contract”;
and (2) newly discovered evidence,
which established that the decedent’s
brother and niece, both of whom cared
for the decedent during her illness,
unduly influenced the decedent into
revising her will and bequeathing the
co-op to her niece some five days
before she died.5
Noting that the letters were insufficient to establish the decedent’s intent
to forgo the right of testation, the Court
cast aside the petitioner’s first argu-
ment and addressed the undue influence argument.6 In that regard, the
Court reiterated that the standard for
vacating a judgment, order or decree
on the basis of newly discovered evidence requires the presentation of a
“substantial basis for challenging the
proffered will” and “‘reasonable probability of success’ on the merits of its
challenge.”7 Applying that standard,
the Court held that the petitioner’s
newly discovered evidence did not
give rise to a substantial basis upon
which to vacate the contested probate
The Court premised its decision on
the theory that the proffered evidence
merely established that the decedent
made a bequest to “a close relative
whose father – the decedent’s brother
and executor – opened his home to
decedent while she received hospice
care for terminal cancer during her
final days.”9
More recently, in In re Efros,
Surrogate’s Court, New York County,
reached a contrary conclusion, based on
the same standard.10 There, JP Morgan
Chase Bank, N.A. (“JP Morgan”) moved
for an order vacating a previously probated will, asserting that there was
newly discovered evidence of undue
influence.11 According to JP Morgan,
the newly discovered transcripts of
telephone conversations established
that the decedent’s closest family
members unduly influenced her into
changing her will.12 Applying the standard set forth in Weizmann Institute,
the court found that the circumstances
NYSBA Journal | July/August 2008 | 41
warranted vacatur,13 reasoning that
the decedent, a 93-year-old woman,
“believed she ‘had no choice’ but to
change her will to accord with the
unremitting demands of her closest
family members.”14
In addition to establishing the requisite substantial basis and reasonable
probability of success on the merits, a
party seeking vacatur on the grounds
appellants did not establish the requisite substantial basis and affirmed the
surrogate’s order.20
Fraud, Misrepresentation or
Other Misconduct
There appears to be some tension with
respect to the standard and its application in the context of vacatur on the
basis of fraud, misrepresentation and
there appears to be a presumption in
favor of fraud, such that the burden
shifts to the fiduciary to establish the
absence of fraud or misconduct by
clear and convincing evidence.27 It has
been held that the fiduciary’s failure to
carry that burden warrants vacatur.28
In re Hunter, in which the respondent, the decedent’s granddaughter,
commenced a proceeding to vacate
The list contained in CPLR 5015 is not exhaustive, and it
does not constrain the surrogate’s courts from vacating probate
judgments, orders or decrees on other grounds.
that there is newly discovered evidence must make a number of other
showings. Most notably, the petitioning party must demonstrate that the
newly discovered evidence is material,
as opposed to cumulative, and could
not have been discovered at an earlier
time by the exercise of due diligence.15
Simply presenting new evidence that
impeaches the credibility of a witness
will not suffice.16
As such, in In re Catapano, the Appellate Division, Second Department
affirmed an order of Surrogate’s Court,
Suffolk County. That court had denied
the appellants’ motion to vacate a
decree on the ground of newly discovered evidence because said evidence
failed to refute the trial testimony of
the respondent’s witness.17
Excusable Default
The standard for vacatur is identical where the basis for such relief is
excusable default. In In re Wang, the
Appellate Division, Second Department considered whether Surrogate’s
Court, Suffolk County, properly denied
the appellants’ motion to vacate a probate decree for excusable default.18
Before answering that question, the
court reiterated that, “[i]n order for the
decree to be vacated, it must appear
that there is a substantial basis for the
contest and a reasonable probability of
success on the part of the petitioner.”19
Accordingly, the court, noting that the
appellants’ evidence amounted to little
more than speculation, found that the
42 | July/August 2008 | NYSBA Journal
other misconduct. On the one hand,
the prevailing view is that the standard
set forth above applies with equal force
in situations involving fraud, misrepresentation and other misconduct.21 For
example, in In re Kaufman, the Appellate
Division, Fourth Department affirmed
an order of Surrogate’s Court, Monroe
County, in which that court denied
the petitioner’s motion to vacate a
decree on the basis of fraud.22 As the
Appellate Division explained, “the
moving party must fulfill his burden
of proof by establishing sufficient facts
from which the court can determine
that a fraud has been committed.”23
On the other hand, there is limited
support for the proposition that the
standard is somewhat more lenient
where the basis for vacatur is fraud,
misrepresentation or other misconduct. Indeed, at least one trial court
has held that a party seeking to vacate
a probate judgment, order or decree
need not plead facts sufficient to establish a reasonable probability of success
on the merits.24 To the contrary, as
Surrogate’s Court, New York County,
explained in In re Sandow, the party
need only show, with some degree
of probability, that its “claim is well
founded and that, if afforded an opportunity, [it] will be able to substantiate”
the claim.25 It is arguable, however,
whether that remains good law in light
of the Weizmann Institute decision.
This point is somewhat more cogent
where there is evidence of a confidential
relationship.26 In such a circumstance,
the court’s decree, helps illustrate the
point.29 The decree settled the first
intermediate account of the co-trustee
of the trust created for the respondent’s
benefit, and the respondent sought
to withdraw her waiver and consent,
arguing that the co-trustee secured
such waiver and consent through
fraud, misrepresentation or other misconduct.30 Upon consideration of the
fraud argument, the court ruled in
favor of the respondent, finding that
the co-trustee failed to make full and
adequate disclosure of the respondent’s rights and the pertinent facts
to the respondent.31 The court was
particularly troubled by the fact that
the co-trustee forced the respondent to
sign the disputed waiver and consent
before reviewing it.32 Accordingly, the
court concluded that the co-trustee
could not establish that the circumstances surrounding the respondent’s
waiver were “just and fair” and vacated its decree.33
Interests of Justice
The list contained in CPLR 5015 is not
exhaustive, and it does not constrain
the surrogate’s courts from vacating
probate judgments, orders or decrees
on other grounds.34 Indeed, New
York courts, including the surrogate’s
courts, are vested with discretionary
authority to vacate judgments, orders
and decrees for good cause shown.35
Although courts typically exercise this
power sparingly, they do so where
the interests of justice require vaca-
tur.36 The standard for vacatur in the
interests of justice is fact-specific and
oftentimes turns upon the peculiarities
of particular cases, rather than broadline rules.37 As Surrogate Preminger
explained in In re Ziegler, “[t]here is
. . . no ready template for this standard.”38
In In re Culberson, the Appellate
Division, Third Department addressed
this very issue.39 There, the decedent
had died, leaving a will in which he
bequeathed all of his property to his
children; he named one of the respondents to act as the executor of his
estate.40 The respondents refused to
furnish the petitioner with a copy of
the decedent’s will or to file said will
for probate for more than four years
after the decedent’s death. Surrogate’s
Court, Rensselaer County, dismissed
the petitioner’s proceeding, sua sponte,
for failure to prosecute.41 Insofar as
the surrogate’s court dismissed the
petitioner’s proceeding without prejudice, the petitioner commenced a second proceeding and moved to vacate
the surrogate’s previous dismissal.42
Although the surrogate’s court had initially denied the petitioner’s motion,
the Appellate Division reversed that
court’s decision, finding that the interests of justice required vacatur.43 The
Third Department based its decision
on the fact that the respondents had
caused the delay in question, among
other things, and, therefore, could not
assert prejudice as a ground for denying the petitioner’s motion for vacatur.44
within a reasonable time may result in
its denial.47
Further, the petitioning party’s failure to make a motion or commence a
proceeding for vacatur within a reasonable time may arm that party’s
adversary with the affirmative defense
of laches.48 Courts have held that the
applying party’s unreasonable delay,
when coupled with prejudice to that
party’s opponent, serves as a valid
basis upon which to deny a motion or
petition for vacatur.49 The lone instance
in which this affirmative defense does
not apply, is a motion to vacate for lack
of jurisdiction, as delay alone will not
suffice for the purpose of conferring
jurisdiction upon a court.50
12. Id.
13. Id.
14. Id.
15. In re Catapano, 17 A.D.3d 673, 674, 794 N.Y.S.2d
403 (2d Dep’t 2005).
16. Id.
17. Id.
18. In re Wang, 5 A.D.3d 785, 787, 773 N.Y.S.2d 578
(2d Dep’t 2004).
19. Id. at 787.
20. Id.
21. In re Leeper’s Will, 53 A.D.2d 1054, 1055, 385
N.Y.S.2d 887 (4th Dep’t 1976).
22. In re Kauffman, 54 A.D.2d 1067, 388 N.Y.S.2d 765
(4th Dep’t 1976).
23. Id.
24. In re Sandow, 25 Misc. 2d 356, 357, 206 N.Y.S.2d
694 (Sur. Ct., N.Y. Co. 1960).
25. Id. at 359.
Given that the list of grounds for
vacatur set forth in CPLR 5015 is not
exhaustive, the prudent practitioner
will recognize the need to look beyond
the text of that statute when called
upon to make or oppose a motion to
vacate a probate judgment, order or
decree. Indeed, because CPLR 5015
does not contain a complete list of the
bases for vacatur, an attorney must
look to the pertinent case law to effectively represent his or her client’s interests on a motion to vacate a surrogate’s
court judgment, order or decree. The
attorney’s failure to review both the
statutory and common law authority,
and to do so within a reasonable time
after the surrogate’s court enters its
judgment, order or decree, may prove
fatal for the purpose of a motion or
petition to vacate a prior decision. ■
26. In re Hunter, 190 Misc. 2d 593, 599, 739 N.Y.S.2d
916 (Sur. Ct., Westchester Co. 2002).
27. Id.
28. In re Levy, 19 A.D.2d 413, 418–19, 244 N.Y.S.2d
22 (1st Dep’t 1963).
29. Hunter, 190 Misc. 2d at 595.
30. Id.
31. Id. at 598–600.
32. Id.
33. Id.
34. In re Culberson, 11 A.D.3d 859, 861, 784 N.Y.S.2d
167 (3d Dep’t 2004).
35. In re Masline, 52 A.D.2d 739, 382 N.Y.S.2d 180
(4th Dep’t 1976).
36. Culberson, 11 A.D.3d at 862.
37. In re Ziegler, 161 Misc. 2d 203, 207, 613 N.Y.S.2d
316 (Sur. Ct., N.Y. Co. 1994).
38. Id. at 207.
39. Culberson, 11 A.D.3d at 860–61.
40. Id.
41. Id.
42. Id.
43. Id. at 861–62.
Time for Seeking Vacatur
Except as to excusable default, for
which there is a one-year limitations
period, CPLR 5015 does not contain
a statute of limitations for the vacatur of a judgment, order or decree.45
However, in the absence of such a
limitations period, courts have held
that a party seeking to vacate a probate
decree must attempt to do so within
a reasonable time after the date upon
which the disputed judgment, decree
or order is entered.46 The failure to
make the requisite motion or petition
11. Id.
1. N.Y. Surrogate’s Court Procedure Act 102
CPLR 5015.
3. See generally Am. Comm. for Weizmann Inst.
of Science v. Dunn, 10 N.Y.3d 82, 854 N.Y.S.2d 89
Id. at 86.
Id. at 91–97.
Id. at 94–96.
Id. at 98.
10. In re Efros, N.Y.L.J., Mar. 27, 2008, p. 34, col. 1
(Sur. Ct., N.Y. Co.).
44. Id.
45. CPLR 5015.
46. Green Point Sav. Bank v. Arnold, 260 A.D.2d 543,
544, 688 N.Y.S.2d 595 (2d Dep’t 1999); see also In re
Smith, N.Y.L.J., Oct. 6, 2006, p. 34, col. 5 (Sur. Ct.)
(explaining that an application for vacatur “must
be made within a reasonable time of the discovery
of the new evidence”).
47. Id.
48. In re Petrolino, N.Y.L.J., July 7, 1995, p. 36, col. 6
(Sur. Ct.).
49. In re Bobst, 165 Misc. 2d 776, 783, 630 N.Y.S.2d
228 (Sur. Ct., N.Y. Co. 1995).
50. David D. Siegel, McKinney’s
Commentary: CPLR 5015 (2007).
NYSBA Journal | July/August 2008 | 43
HOWARD LEVENTHAL is a Special Referee at Supreme Court, New York County. The views expressed in
this book review are solely those of the reviewer in his personal capacity.
Election Law
Goldfeder’s Modern Election Law, Jerry H. Goldfeder, New York
Legal Publishing Corp. (2007)
e are all
ll ffamiliar
ili with
ith the
old saw: “Those who can,
do; those who can’t, teach.”
Jerry Goldfeder dispels this aphorism,
both doing and teaching election law.
Mr. Goldfeder cut his eyeteeth way
back in 1981, aiding the quixotic mayoral campaign of Assembly Member Frank
Barbaro, who was seeking to unseat the
popular incumbent, Mayor Ed Koch, in
New York City’s Democratic Party primary election. Planning a primary election campaign is like a chess game or
military operation. The candidate must
plan moves and countermoves. In order
to avoid a divide-and-conquer strategy by the incumbent, Barbaro sought
to eliminate competitors for the antiKoch vote. This meant knocking Melvin
Klenetsky off the ballot on technicalities
under New York’s arcane, often confusing, Election Law, so that the anti-Koch
forces, theoretically, could coalesce and,
united under one banner, defeat the
incumbent. It sounded good in theory. In practice, Barbaro was unable to
knock Klenetsky off the ballot, and,
in the final analysis, it was irrelevant,
because Ed Koch handily defeated
them both and went on to be elected
to a second, and then a third, term as
mayor. This baptism of fire gave birth
to a lifelong love for and career in election law, however. Goldfeder learned
and played the game, rubbing elbows
and locking horns with the greats in the
field. He went on to teach Election Law
at Fordham Law School.
Goldfeder’s Modern Election Law is a
primer on Election Law, useful at all
44 | July/August 2008 | NYSBA Journal
levels: to the neophyte, to the seasoned
practitioner, to the appellate lawyer,
and to the justices and special referees
who must call the balls and strikes and,
ultimately, decide the cases. (Indeed,
if it were dressed in a yellow cover,
instead of navy blue, it might have
been titled Election Law for Dummies.
But don’t be fooled by the simplicity of
style and colloquial manner in which it
is written.) There’s a lifetime of experience and insightful scholarship packed
into pages that capture the nitty-gritty
of election law. Goldfeder can truly
say, “I served in the trenches.”
Part I of Modern Election Law starts
off stating the obvious: the candidate wakes up one day and has an
epiphany – she1 wants to run for elective public office. The candidate first
must identify the position for which
she hopes to run. There are two ways
of obtaining a place on the ballot in a
general election: by designation of an
established political party (either in
a primary or by a party convention),
or by nomination of an “independent
body.” Professor Goldfeder identifies
the statutes with which a prospective candidate must be familiar – the
Election Reform Act of 1992, the Ballot
Access Law of 1996, and, of course, the
Election Law itself, as well as the Rules
of the Boards of Election. (Years ago,
even finding the applicable rules was a
task in itself.) As if the applicable rules,
regulations and forms are not sufficiently daunting, Goldfeder admonishes the
prospective candidate of the necessity to familiarize herself with political
party rules as well. The playing field
has become more level, thanks, in part,
to the relative accessibility of rules and
forms online.
The issue of residency is discussed
at length – there’s no place like home –
since many public offices require residency within a particular district. New
York recognizes that an individual may
have more than one residence, but only
one may qualify as that place where a
person maintains a fixed permanent
and principal home and to which she,
wherever temporarily located, always
intends to return. (It’s amazing how
many candidates for public office live
in an unheated basement or attic in
a home owned by an aunt or uncle,
bereft of furniture, sleeping on a folding cot, while their spouses and children live in a sumptuous home in
the suburbs. In 2001, a candidate was
actually prosecuted criminally, and
convicted of false registration under
the Election Law, illegal voting, and
offering a false instrument for filing.)
Professor Goldfeder discusses in detail
how a challenger may seek to show
that the bona fides or duration of a
candidate’s residence does not meet
the statutory standard, the burden of
proof, and how the candidate may
demonstrate eligibility.
The petitioning process is the subject of a lengthy chapter. Professor
Goldfeder gives savvy advice as to
the right way to gather signatures and
the pitfalls to avoid – such as making sure overzealous petition gatherers
don’t “jump the gun” by collecting
signatures on designating petitions
before the opening bell. The nit-picking process of attacking the validity
of signatures on the designating petitions of competitors is discussed in
great detail, as only one who has been
engaged in the process can. Helpful
hints are given as to how to ensure that
signatures gathered by your side are
protected from challenges.
Candidates are advised to keep a
healthy distance from the petitions
and to avoid being a subscribing witness. This will prevent the opposition
from subpoenaing the candidate, and
tying up and preventing the latter from
campaigning, and will also avoid the
danger of the candidate being thrown
off the ballot if tainted by allegations of
fraud in the signature-gathering process. If an ordinary signature gatherer
is found to have engaged in fraud, the
entire work product of that person may
be discarded by the court. However, if
the candidate herself is found to have
participated in fraud, however small,
the candidate may be disqualified,
even if there is an otherwise sufficient
number of valid signatures on the designating petition. And what happens
if a voter moves from one residence to
another within the county? Read the
book to find the answers.
There is a whole chapter devoted
to staying on the ballot, general objections, specifications of objections,
board hearings, and the judicial process. Timetables have to be adhered to
rigorously. The failure to commence a
judicial proceeding in a timely manner is a fatal defect. There are differ-
Book Notes
J. Michael Hayes, a past contributor to the Journal and
a chapter author of the New
York State Bar Association’s
upcoming Treatise on Plaintiff’s
Personal Injury Actions in New
York, has just written a new book
titled Liens vs. Subrogation: An
Alternative to Giving Away Your
Client’s Personal Injury Recovery.
Mr. Hayes may be contacted at
[email protected]
ent timetables for petitions to validate
or to invalidate a designating petition.
There are differences between proceedings brought by an objector and by
an aggrieved candidate. Judicial proceedings require meticulous compliance
with the mode of service specified in
the order to show cause. The petitioner
must have standing. All necessary parties, including the Board of Elections,
must be named as parties and properly
served within the time specified by the
court. And as if this isn’t enough, different counties have their own rules
governing election proceedings.
Professor Goldfeder also discusses
little-known alternative methods of
securing a place on the ballot, as well
as the rules applicable to extraordinary
situations, such as death, criminal convictions, disqualification, etc. Money,
the mother’s milk of politics, rates an
entire chapter, discussing, inter alia,
public financing of campaigns, legal
limitations on contributions, and how
one may ascertain the limits for a particular race.
Pragmatic advice is given as to
actions to be taken by a candidate in
the days leading up to and on Election
Day itself, to protect against the election
being stolen. The presence of police and
the role of poll watchers is discussed,
along with what to do if there is equipment breakdown or failure, or if a prospective voter’s name is not listed in the
voter registration book.
The book also features a chapter
on hypothetical ethical issues for election lawyers. This is not surprising.
given that Andrew Cuomo, Attorney
General of the State of New York, and
himself steeped in New York politics,
tapped Goldfeder to be his Special
Counsel on Public Integrity. To his
credit, Goldfeder has included a disclaimer that the views expressed in his
book are his, not those of the New York
State Department of Law.
Part II contains Election Law forms,
rules and reports. Everything you’ll
need is in one concise book.
The law is fully and clearly set
forth, enabling the practitioner to
argue to the jurist presiding, “As it
says in Goldfeder’s Modern Election
Law . . .” Judges and referees have
a very limited time in which to render decisions in election cases; so, if
counsel presents appropriate citations
to case law, statutes, rules and regulations, it conserves judicial resources and furthers the goal of judicial
economy. Why plunk down your
hard-earned money to buy this book?
Easy: it’s the same book which the
judges and referees who decide the
case will be using.
Goldfeder always uses “she” rather than “he.”
let us know.
Notify OCA and NYSBA of any changes
to your address or other record
information as soon as possible!
OCA Attorney Registration
PO BOX 2806
Church Street Station
New York, New York 10008
Email [email protected]
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AS OF 5/27/08 _______________2,084
5/27/08 ___________________67,289
NYSBA Journal | July/August 2008 | 45
WILLIAM MAKER, JR., is a member of McMillan Constabile, Maker & Perone, LLP, Larchmont, NY, and is the
Town Attorney for the Town of Mamaroneck. He received his LL.M. and his J.D. from New York University
School of Law and a B.A. in Economics from Queens College of the City University of New York.
Of Keystrokes and Ballpoints:
Real Estate and the Statute of
Frauds in the Electronic Age
hen cramming for the bar
exam lo those many years
ago, each of us memorized
the legal transactions that require a
writing in order to be enforceable.
While §§ 5-701 and 5-703 of the N.Y.
General Obligations Law (GOL) contain a lengthy list of such transactions, most of us remember only two
or three. The one we all remember is
that an agreement for the sale of real
property is enforceable if it is in writing with a contract, or some memorandum of it, signed by the party who
refuses to acknowledge the contract.1
With e-mail becoming such a popular means of communication, a clash
between electrons and ink was inevitable. So far, New York has produced two
lower court cases involving real estate
transactions where, like the Pilgrims,
the Statute of Frauds found itself in a
strange, new world. Will the Internet
be as friendly to the statute as Squanto
was to Myles Standish or will it produce odd results, like the Pilgrims’
descendants winning two World Series
in the space of four years?2
The two cases reached opposite conclusions. Rosenfeld v. Zerneck3 endorsed
the notion that e-mails can create a
binding real estate contract. Vista Developers Corp. v. VFP Realty LLC4 did not.
In Rosenfeld, a seller responded to
an e-mail and telephone call from prospective purchasers with an e-mail
of his own. In the “Subject” line of
his e-mail, the seller typed the street
address of the property offered for
sale. Below appeared the date and the
names of the parties to whom and by
46 | July/August 2008 | NYSBA Journal
whom the message was sent. The text
“Dear Tom & Debbie,
“This note is to confirm yesterday’s
telephone conversation in which
I accepted your all cash offer of
$3,525,000 for 18 PPW, with no
contingencies for financing or sale
of your present residence, to close
no later than July 1, 2004.
“As we discussed, please contact
Liz early next week to schedule
your inspection. My attorney will
prepare a contract of sale, to be
signed after your engineer’s report.
(What is the contact information
for your attorney? Will you be
making the purchase jointly? What
is your present address?)
“With kind regards,
When Michael refused to consummate the transaction because no formal contract was signed, Tom and
Debbie commenced suit for specific
performance, arguing that Michael’s
e-mail, when coupled with an earlier one of theirs, constituted a legally
binding contract. The first question
was whether Michael’s typed signature on the e-mail satisfied the Statute
of Frauds.
Because no other New York cases
had dealt with this issue, the Rosenfeld
court drew from Parma Tile Mosaic
& Marble Co. v. Estate of Fred Short.6
Real estate was not at issue in Parma.
It involved another type of transaction that requires the signature of the
party to be held accountable, i.e., a
promise to pay another’s debts. The
Court of Appeals was confronted with
the question of whether the imprint
of a sender’s name on a telefacsimile
(“fax”) transmission of a guaranty was
a subscription by the sender sufficient to satisfy the Statute of Frauds.
Although recognizing that a signature
can be printed, the court held that
a printed signature must be inserted
“‘with an intent, actual or apparent,
to authenticate a writing.’”7 Here the
fax machine was programmed to print
the sender’s name automatically when
the recipient’s fax machine printed the
transmission. That was not enough
to “constitute a signing authenticating the contents of the document for
Statute of Frauds purposes.”8
The Rosenfeld court distinguished
the Parma fax from Michael’s e-mail,
noting that Michael purposely typed
his name at the end of the message,
“manifest[ing] his intention to authenticate this transmission for statute of
frauds purposes.”9 Hence, Michael
could not escape liability based upon
the Statute of Frauds. (The case was
dismissed, however, because the
e-mails did not set forth the amount
of the down payment – an essential
Vista Developers Corp. v. VFP Realty
LLC involved a series of e-mails
between a prospective buyer and seller. Each e-mail contained a typewritten signature. Again the seller was
the defendant, urging dismissal of
the purchaser’s complaint for specific
performance based upon the Statute
of Frauds. The Vista Developers court
never dealt with the content of the
exchanged e-mails for it found as
a matter of law that e-mails cannot
satisfy the Statute of Frauds in real
estate transactions. The court’s logic
focused on the difference between
GOL § 5-703, which governs real
estate transactions, and GOL § 5-701,
which pertains to other transactions
that require a writing.
The plaintiff’s argument hinged on
GOL § 5-701(b)(4), which provides:
For purposes of this subdivision,
the tangible written text produced
by telex, telefacsimile, computer
retrieval or other process by which
electronic signals are transmitted
by telephone or otherwise shall
constitute a writing and any symbol executed or adopted by a
party with the present intention to
authenticate a writing shall constitute a signing.
the ancient world and one from modern times.
Often when confronted by newfangled
innovations, courts will look to the rules
established when dealing with earlier
technology.14 The Vista Developers plaintiff might have argued that the case law
involving the “original e-mail,” i.e., the
telegram, was pertinent.
Now forgotten, the telegram once
was a major means of communication.
A sender would give a message either
in writing or orally to a telegraph company that would transmit that message
over wire to its office nearest the recipient. There, the impulses from the wire
would be converted to written words
with the sender’s name subscribed at
the bottom. The telegram then would
be delivered to the recipient. The use of
telegrams satisfied the Statute of Frauds
long before GOL § 5-701 was amended
by adding paragraph (b)(4).15
This similarity between telegrams
and e-mails cogently argues for the
importation of “telegram jurisprudence” into the world of e-mails.
The Electronic Signatures and
Records Act
Article III of the N.Y. State Technology
Law16 has ushered in a new legal world
that most of us have yet to explore. The
Legislature’s stated intention is “to
support and encourage electronic commerce and electronic government by
allowing people to use electronic signatures and electronic records in lieu
of handwritten signatures and paper
documents.”17 With that in mind, the
law states that “unless specifically provided otherwise by law, an electronic
signature may be used by a person
in lieu of a signature affixed by hand.
Thus, argued the plaintiff, the
e-mails complied with the “[subscription] by the party to be charged”
requirement of the Statute of Frauds.10
The defendants countered by noting
that paragraph (b) of GOL § 5-701
applies only to what the statute defines
as “qualified financial contracts”11 and
that contracts for the sale of real property are not included in that definition.12
Because the modernization of the
Statute of Frauds contained in GOL
§ 5-701(b)(4) does not appear in GOL
§ 5-703, the court reasoned “that the
intent of the Legislature was to amend
the method for establishing agreements
required to be in writing other than
those involving contracts and conveyances concerning real property, which
are purposely dealt with in a separate
section of Article 5.”13 Accordingly,
e-mails could not satisfy the statute’s
subscription requirement for real estate
Two Smoking Guns Ignored
Not presented to the Vista Developers
court were two arguments that may
have swayed its decision – one from
NYSBA Journal | July/August 2008 | 47
The use of an electronic signature shall
have the same validity and effect as the
use of a signature affixed by hand.”18
While GOL § 5-703 does not specifically authorize electronic signatures
on real estate contracts, it does not
specifically disavow them. Moreover,
the areas where the State Technology
Law, by its own terms, does not apply,
include such matters as wills, powers
of attorney, health care proxies, negotiable instruments and “any conveyance or other instrument recordable
under article nine of the real property
law”19 but not real estate contracts.
Vista Developers may have been
decided differently if the State
Technology Law had been brought to
the court’s attention.
While there is now a particular conflict
between courts of co-ordinate jurisdiction, in time either the appellate courts
or further legislation will quiet that
controversy. However, there is a more
important point.
Though obviously focused upon
the commercial arena, the State
Technology Law is predicated upon a
legislative finding “that it is in the best
interest of the state of New York, its
citizens, businesses and government
entities for State and federal law to
work in tandem to promote the use of
electronic technology in the everyday
lives and transactions of such individuals
and entities.”20 As a result, we and our
clients unwittingly may be entering
into binding agreements every day
through the casual use of e-mail. Think
about that before e-mailing an invitation to lunch. If you’re not careful, you
may be obligating yourself to pick up
the check.
1. GOL § 5-703(2): “A contract for . . . the sale, of
any real property, or interest therein, is void unless
the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful
agent thereunto authorized by writing.”
2. Massachusetts’s answer can be found in
Shattuck v. Klotzbach, 14 Mass. L. Rptr. 360 (Super.
Ct. 2001), where it was decided that e-mail can
satisfy the Statute of Frauds.
3. 4 Misc. 3d 193, 776 N.Y.S.2d 458 (Sup. Ct., Kings
Co. 2004).
4. 17 Misc. 3d 914, 847 N.Y.S.2d 416 (Sup. Ct.,
Queens Co. 2007).
Rosenfeld, 4 Misc. 3d at 194–95.
87 N.Y.2d 524, 640 N.Y.S.2d 477 (1996).
7. Id. at 527 (quoting Judge Cardozo in Mesibov,
Glinert & Levy, Inc. v. Cohen Bros. Mfg. Co., 245 N.Y.
305, 310 (1927)).
8. Id. at 528. It is imperative to remember that the
events in Parma predated an amendment to GOL §
5-701 and the enactment of Article III of the State
Tech. Law (discussed below). Either may have led
the Court to a different conclusion.
9. Rosenfeld, 4 Misc. 3d at 196. See also Stevens v.
Publicis, S.A., 854 N.Y.S.2d 690 (1st Dep’t 2008).
(“The e-mails . . . constitute ‘signed writings’ within
the meaning of the Statute of Frauds, since plaintiff’s name at the end of his e-mails signified his
intent to authenticate the contents.”).
10. GOL § 5-703(2).
12. Vista Developers Corp. v. VFP Realty LLC, 17 Misc.
3d 914, 919–20, 847 N.Y.S.2d 416 (Sup. Ct., Queens
Co. 2007).
13. Id. at 921. GOL § 5-703 actually appears in Title 7
of Article 5 of the N.Y. General Obligations Law.
14. For example, the Court of Appeals declined to
hold an Internet service provider liable for defamatory e-mails sent by one of its subscribers. The Court
analogized libel by e-mail to slander by telephone.
Since years ago it had exonerated the telephone companies from such liability, the Court freed Internet
service providers as well, holding that such providers play the same passive role with respect to message content as telephone companies do. Lunney v.
Prodigy Servs. Co., 94 N.Y.2d 242, 701 N.Y.S.2d 684
(1999), cert. denied, 529 U.S. 1098 (2000).
15. La Mar Hosiery Mills, Inc. v. Credit & Commodity
Corp., 28 Misc. 2d 764, 768, 216 N.Y.S.2d 186 (City
Ct., N.Y. Co. 1961) (“The signature on the telegram
in suit, although typed in the office of the telegraph
company, is therefore defendant’s authorized signature within the requirements of the Statute of
16. State Tech. Law §§ 301–309. The federal government has a similar statute – the Electronic Signatures
in Global and National Commerce Act (15 U.S.C.
§§ 7001–7006), known colloquially as the E-Sign Law.
Though applicable only to transactions “affecting
interstate or foreign commerce” (15 U.S.C. § 7001(a)),
the term “transaction” includes “the sale, lease,
exchange, or other disposition of any interest in real
property, or any combination thereof.” 15 U.S.C.
§ 7006(13)(B). Furthermore, while the law specifically
exempts areas that historically have been the sole
province of the states, such as wills and family law
(see 15 U.S.C. § 7003(a)(1), (2)), no specific exception
appears for intrastate real estate sales.
17. 2002 N.Y. Laws ch. 314, § 1.
18. State Tech. Law § 304(2). Section 302(3) defines
an “electronic signature” as “an electronic sound,
symbol, or process, attached to or logically associated with an electronic record and executed or adopted
by a person with the intent to sign the record.” The
definition of an electronic signature in the E-Sign
Law, 15 U.S.C. § 7006(5), is nearly identical.
19. State Tech. Law § 307(1), (2), (3).
11. GOL § 5-701(b)(2)(a)–(j). It also does not apply to
contracts involving a natural person.
20. 2002 N.Y. Laws ch. 314, § 1 (emphasis supplied).
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We understand the competition, constant stress, and high
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48 | July/August 2008 | NYSBA Journal
8. Choosing the right font. Many
writers believe that any font will do for
legal documents.
Typefaces, also called fonts, affect
the readability of documents. Use fonts
that make the text easy to read. In legal
writing, that means fonts like Times
New Roman, Courier New, or any font
with the word “book” in it rather than
the Arial font. Times New Roman and
Courier New are serif fonts. Arial is a
sans serif font. A serif font has small
lines at the top and bottom of each letter. A sans serif font has no lines. The
lines in the serif font draw the reader’s
attention and let the eye move easily
from letter to letter. The writer’s goal is
to make it easy for the reader to move
through the text.
Don’t mix fonts in the same document. Keep it professional.
rupts readers: It forces readers to stop
and readjust to the spacing on each line.
Although full justification presents a
clean and crisp document, it’s difficult
to read. Right-ragged promotes reading
You’ll find the right-ragged effect in
textbooks more than in novels. Because
justified text is more formal than nonjustified text, most newspapers use
justified text.
To create a right-ragged effect, use
the left justification (or align left) feature on your computer program.
10. Word and line spacing. Word
spacing: The trend is to put one space
between sentences in publishing. For
unpublished, typed documents, put
two spaces between sentences.5
Line spacing: Single-spaced final
copies of a document are easier than
double-spaced documents for readers
to see and comprehend. Single-space
the Bluebook. New York practitioners
should use the Tanbook when writing
for New York courts.
Under the Tanbook, citations are
surrounded by parentheses and supporting information is added in brackets. Periods are omitted in key places,
such as after the “v” in “versus.” Three
examples from the 2007 Tanbook:
Caselaw: (Matter of Ganley v Giuliani,
253 AD2d 579, 580 [1st Dept 1998], revd
94 NY2d 207 [1999].) Statute: (Penal
Law § 125.20 [4].) Secondary authority:
(The Bluebook: A Uniform System of
Citation [Colum L Rev Assn et al. eds,
18th ed 2005].).
Unlike the Bluebook, ALWD makes
no distinction between citing for law
reviews and law journals and citing in
practitioners’ legal documents.
12. The one-sentence paragraph.
Some readers believe that a one-sentence paragraph signals undeveloped
Leave plenty of white space on the right-hand side of the page;
it’s easier on the eye.
9. Right-ragged effect. Some legal
writers recommend full justified text.
Others recommend non-justified text.
Also known as non-justified or
flush-left, a right-ragged effect refers to
allowing lines of text to end naturally
on a page. The text is aligned, or flush,
to the left. It creates a loose, or ragged,
right edge. A right-ragged effect leaves
varying amounts of white space (no
words appear) at the end of lines, It
doesn’t force the text to line up flush
with the margin. Ragged right is the
most common ragged alignment. The
opposite — full justification, or flushright — creates a straight right-hand
edge to the text.
Leave plenty of white space on the
right-hand side of the page; it’s easier
on the eye. Readers prefer unjustified
text. It’s easier to follow. Full justification causes the spacing between words
to fluctuate from line to line. Full justification cramps or stretches out words.
The text must be even on the left- and
right-hand sides. Full justification dis-
50 | July/August 2008 | NYSBA Journal
all correspondence, but double-space
between paragraphs.
Make sure you know your audience.
If you’re writing to a judge, check the
court’s rules for spacing requirements.
If you’re writing to your boss, know
your boss’s rules on spacing.
11. Citations. Some legal writers believe that lawyers should cite
according to the Bluebook. Others rely
on ALWD,6 the Association of Legal
Writing Directors Citation Manual.
Still others follow the New York Law
Reports Style Manual, New York’s
Official Style Manual (Tanbook).7
How you cite depends on your audience.8 Most federal judges and practitioners, law-review and law-journal
editors, and Moot Court associations
use the Bluebook.9 Some law school
legal-writing programs use ALWD
instead of the Bluebook. New York
judges use the Tanbook for opinions
published in the official reports. If
you’re an attorney who writes to or
for a New York state court, don’t use
ideas in an unsophisticated, juvenile
style. But one-sentence paragraphs
are acceptable to transition between
two large paragraphs in a document.
Doing so forms a bridge between two
lengthy paragraphs. In a lengthy paragraph, readers must work overtime to
understand the meaning of the words
and the connections between them.
A one-sentence paragraph eliminates
some work for the reader. A one-sentence paragraph also gives readers a
chance to catch their breaths between
long paragraphs. But be careful. Use
one-sentence paragraphs sparingly
for dramatic effect: to emphasize an
important point.
13. Spelling out numbers. From
a tradition that evolved during the
typewriter era and primarily to avoid
forgery, some legal writers spell out
numbers and then identify the number
in parentheses. Example: “Respondent’s
apartment has six (6) bedrooms and
three (3) bathrooms.” Imagine if you
were to say this to someone: “His
apartment has six six bedrooms and
three three bathrooms.” The point is
that you wouldn’t say it: It’s redundant. If you wouldn’t say it out loud,
don’t write it.
Having too
many footnotes
or endnotes will
cause readers to
lose focus.
The Tanbook recommends spelling up to and including the number
nine and denoting with figures numbers above nine.10 The Bluebook11 and
ALWD explain that the legal convention is to spell out zero to ninety-nine
and use numerals for higher numbers.12 ALWD advises readers to designate numbers with numerals or spell
out the numbers, but not both.
The Legal Writer recommends following the Tanbook. Spelling numbers
from zero to nine and denoting numbers above nine with figures is easier
to read.
14. Hyphenating phrasal adjectives.
Hyphens are thought to be old-fashioned and needlessly complex. Others
believe that correctly used hyphens
eliminate confusion.
The Legal Writer recommends
hyphenating compound adjectives.
Example: “I’m a real estate practitioner.” Or: “I’m a real-estate practitioner.” In the first example, without the
hyphen, the reader understands that
your real-estate practice is fake. In the
second example, with the hyphen, the
reader understands that you practice
real-estate law. Correct hyphenation
signals formality and adds clarity.
Adding the hyphen won’t bother anyone. It might even impress your reader
that you know the correct rule.
Don’t hyphenate when the compound is not an adjective phrase.
Correct: “Family-law practitioner.” Also
correct: “Practitioner of family law.”
Correct: “Real-estate owner.” Also correct: “Owner of real estate.”
Don’t hyphenate when the first
word in the adjectival phrase ends in
“ly.” Incorrect: “Physically-incapacitated
defendant.” Correct: “Physically incapacitated defendant.”
Some writers say you shouldn’t
hyphenate two-word modifiers whose
first element is a comparative or a
superlative. The Legal recommends
hyphenating. Examples: “Lowestpriced suit”; “upper-level apartment”;
“best-dressed attorney.” Also acceptable: “Lowest priced suit”; “upper level
apartment”; “best dressed attorney.”
Don’t hyphenate in a compound
predicate adjective whose second element is a past or present participle.
Incorrect: “His judicial opinions were
wide-reaching.” Correct: “His judicial
opinions were wide reaching.”
Hyphenate suspension adjectival
phrases. Incorrect: “Ten and twenty dollar bills.” Correct: “Ten- and twenty-dollar bills.” Or: “10- and 20-dollar bills.”
Conclusion. This ends the Legal
Writer’s 11-part Do’s, Don’ts, and
Maybes series.
1. See Gerald Lebovits, Legal Writer, Do’s, Don’ts,
and Maybes: Legal Writing Punctuation — Part I,
80 N.Y. St. B.J. 64 (Feb. 2008); Gerald Lebovits,
Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing
Punctuation — Part II, 80 N.Y. St. B.J. 64 (Mar./Apr.
2008); Gerald Lebovits, Legal Writer, Do’s, Don’ts,
and Maybes: Legal Writing Punctuation — Part III, 80
N.Y. St. B.J. 64 (May 2008).
2. Robert J. Kapelke, Judges’ Corner, Some Random
Thoughts on Brief Writing, Colorado Lawyer, 29, 29
(Jan. 2003).
Contra Bryan A. Garner, Clearing the Cobwebs
from Judicial Opinions, 38 Court Review 4, 6-8, 10, 12
Richard A. Posner, Against Footnotes, 38 Court
Review 24 (2001).
5. See Gerald Lebovits, Legal Writer, Do’s, Don’ts,
and Maybes: Legal Writing Punctuation — Part I,
80 N.Y. St. B.J. 64 (Feb. 2008); Gerald Lebovits,
Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing
Punctuation — Part II, 80 N.Y. St. B.J. 64 (Mar./Apr.
2008); Gerald Lebovits, Legal Writer, Do’s, Don’ts,
and Maybes: Legal Writing Punctuation — Part III, 80
N.Y. St. B.J. 64 (May 2008).
6. Association of Legal Directors (ALWD) Citation
Manual (3d ed. 2006).
7. New York Law Reports Style Manual (Tanbook)
(2007), available at (html version) and http://
(pdf version) (last visited Apr. 20, 2008).
See Gerald Lebovits, Legal Writer, Tanbook,
Bluebook, and ALWD Citations: A 2007 Update, 79 N.Y.
St. B.J. 64 (Oct. 2007).
The Bluebook: A Uniform System of Citation
(Columbia Law Review Ass’n et al. eds., 18th ed.
10. Tanbook R. 10.2(a)(1), at 58.
Bluebook R. 6.2(a), at 73.
12. ALWD R. 4.2(a), at 29.
GERALD LEBOVITS is a judge of the New York City
Civil Court, Housing Part, in Manhattan and an
adjunct professor at St. John’s University School
of Law. He thanks court attorney Alexandra
Standish for researching this column. Judge
Lebovits’s e-mail address is [email protected]
NYSBA Journal | July/August 2008 | 51
To the Forum:
Dear Stuck:
I am in the middle of a dilemma which
is all the more disconcerting because
it’s mainly of my own making. It
involves a personal injury action and
the derivative claim of a spouse.
About a month ago, a neighbor
of mine (Harry) was involved in an
automobile accident in which one of
his hands was injured. At first the
injury didn’t appear to be severe, and I
was primarily involved in helping him
with the no-fault application. About
a week later he dropped by my office
and we spoke for a few minutes. I then
learned that surgery was indicated and
had him sign a retainer (after giving
him a reduced fee as a neighbor). I told
him that my secretary would type in
the details at the top later, which she
did, including the client’s name and
address. I also had her add a routine
loss of services claim on behalf of
Harry’s wife.
A few weeks afterwards Harry
developed complications from the surgery on his hand, and it now appears
that he may lose complete use of that
hand. This is of course serious, especially in Harry’s case, because he earns
his living as an auto mechanic.
Yesterday, he was home and recovering so I stopped by with the Summons
and Complaint for him to verify. His
first question to me was, “What is my
wife’s name doing on my lawsuit?”
He then went on to tell me that he was
planning on leaving his wife as soon as
their son graduated from high school,
in about a year. Apparently, his wife
has no knowledge of these plans.
The news came as a complete shock
to me. We live in a relatively small community and we are part of a tightly knit
group of traveling “soccer parents.”
I know his wife well and had just
assumed that she would be included as
a plaintiff. However, I don’t remember
actually discussing it with Harry when
he signed the blank retainer.
What do I do about the loss of services claim?
The awkward circumstance in which
you find yourself presents ethical, legal
and even social questions.
Let’s begin with the basics. Your
only client in this personal injury action
is Harry. Harry is the injured party, he
is the sole person with whom you met,
and he alone signed the retainer. The
fact that you erroneously (and improperly) added his wife’s derivative claim
for her loss of services to the retainer
after Harry had signed it does not
make the wife your client.
Your best course now is to draw
up a new retainer for Harry, which
sets forth only his claim. A Retainer
Statement must then be filed with the
Office of Court Administration, or an
Amended Statement, if you already
filed one including the wife’s derivative claim.
The easy part now being resolved,
one can probably guess your other
concerns: “But what about his wife?”
“How will she know that she has a
right to bring a derivative claim, and
that she should consult with another
attorney?” “What if she asks me about
the case?” “What if everyone thinks I’m
a heel when they find out a year from
now that I knew about the impending
divorce all along?”
Again, back to basics. You must put
Harry’s interest before your own – but
in an honorable fashion. If Harry told
you about his divorce plans in confidence then, of course, you cannot
reveal that confidence. DR 4-101. But
your efforts to preserve the confidence
cannot include lying to or misleading
his wife.
It is hard to predict exactly how
events will unfold, but it may be prudent to assume that the derivative
claim, regardless of its intrinsic value,
will loom large at some point in the
litigation, and this should be explained
to Harry.
Even if his wife is presently unaware
of her right to bring a derivative claim,
she will presumably learn about it if
and when she consults a matrimonial
lawyer. Her derivative action can be
brought within the applicable statute
Stuck in the Middle
52 | July/August 2008 | NYSBA Journal
of limitation, and would then be joined
with the personal injury action. Buckley
v. National Freight, Inc., 90 N.Y.2d 210,
659 N.Y.S.2d 841 (1997). Nor should
Harry think that he can avoid his
wife’s involvement by settling his case
within the next year, before he files for
divorce. In order to settle his case, the
defendant will certainly require Harry
to execute a general release, and this
would, absent special circumstances,
also extinguish his wife’s potentially
viable claim. Buckley, supra. This could
leave Harry open to a claim by his
I don’t mean to suggest that you
should advise Harry to allow you to
add his wife’s derivative claim (with
her consent, of course) just to keep
up appearances or to make matters
simpler. In fact, under these circumstances it likely would be improper
for you to represent the wife. Harry’s
confidential information to you seems
to create differing interests (DR 5-105)
and at minimum the appearance of
The Attorney Professionalism Committee
invites our readers to send in comments
or alternate views to the responses
printed below, as well as additional
hypothetical fact patterns or scenarios to
be considered for future columns. Send
your comments or questions to: NYSBA,
One Elk Street, Albany, NY 12207, Attn:
Attorney Professionalism Forum, or by
e-mail to [email protected]
This column is made possible through
the efforts of the NYSBA’s Committee on
Attorney Professionalism. Fact patterns,
names, characters and locations presented
in this column are fictitious, and any resemblance to actual events or to actual persons,
living or dead, is entirely coincidental. These
columns are intended to stimulate thought
and discussion on the subject of attorney
professionalism. The views expressed are
those of the authors, and not those of the
Attorney Professionalism Committee or
the NYSBA. They are not official opinions
on ethical or professional matters, nor
should they be cited as such.
impropriety, which would preclude
joint representation.
In light of the fact that you probably
will see Harry’s wife from time to time,
and that she can be expected to ask
about the progress of the litigation, it is
important that you discuss with Harry
what you can and cannot tell her. This
conversation should include not only
the limits he might place on you, but
also how your own ethical obligations
come into play.
Finally, even though this may be a
big case, and undoubtedly you would
like to keep it, you should consider
the possibility that Harry might be
better served by an attorney who is
removed from his social setting. DR
5-101. On that down note, I wish you
good luck.
The Forum, by
Lucille Fontana
White Plains, NY
My firm represents a number of
companies in the construction business, and they are frequently sued by
construction workers who are injured
on the job. Lately we have had several
cases in which the injured plaintiffs –
not employees of any of our clients – are
in this country illegally. One of our
clients wants to know whether it would
be permissible to report both the plaintiff in this case, and his employer, to the
My client has not proposed threatening criminal charges. Instead, he proposes simply to provide the authorities
with the documentation and depositions obtained during discovery. These
show that that the plaintiff is here
illegally, obtained employment illegally, and that his employer hired him
knowing about his status, or, at least,
that he was hired without a required
pre-employment investigation. There
is no intent to threaten or to gain an
advantage in the litigation, although
an advantage could result.
My client feels that because he has
learned what he has about this worker
he should, as a good citizen, inform the
proper authorities. My questions are:
What is my client allowed or required
to do? What am I, as the client’s attorney, allowed or required to do? Would
my firm or my client face any liability if either of us were to make such
Concerned Professional
Editor’s Note: The Forum presents
a slightly edited version of the question from “Stuck” which was published in the June issue of the Journal.
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NYSBA Journal | July/August 2008 | 53
uestion: The modern tendency is to omit the words of the
from statements like, “All of
the shareholders shall be entitled to
vote.” In the expression, “None of the
shareholders shall be entitled to vote,”
omission of the phrase of the would
be incorrect, so wouldn’t the omission
of those words also be incorrect in “all
Answer: The correspondent’s logic
is excellent. Indeed, he could have
used another expression in his comparison to solidify his point, for if you
delete the words of the from the phrase
“omission of the words,” the result is
not idiomatic English.
But language is sometimes not logical, and that is especially true with
idioms. So the argument fails; both “all
of the arguments” and “all the arguments” are correct. The latter is also
shorter, which, in writing, is a benefit,
all other things being equal. But the
shortest and most direct statement,
“No shareholders are entitled to vote,”
would obviate the question.
What bothers me about the submitted sentence, however, is not whether
the phrase of the stays or goes, but the
use of the word shall further along
in his quotation. Why use the future
tense shall instead of the present-tense
verb are? The word shall may also
be ambiguous because it is archaic,
a legalism almost never used to designate the present tense in ordinary
English. The manual Words and Phrases
devotes many pages to appellate court
decisions about the meaning of shall.
In ordinary English, shall indicates
future tense, but it is hardly used for
that purpose, only sometimes replacing
the word should in a first person interrogative: “Shall I take my umbrella with
me today?” “Shall we leave now?”
The words shall and will have an
interesting history. Before the 17th century, both often indicated only simple
futurity, until an Oxford University
geometry professor, perhaps seeking
to add the precision of geometry to language, set forth the rule that shall in the
first person (“I shall”) indicated simple
54 | July/August 2008 | NYSBA Journal
futurity. He reserved the use of shall to
express emphasis in the first person;
one must use shall to indicate determination. The reverse would be true
for second and third persons, “You
will” and “He or she will” expressing
determination, and “you and he or she
shall” indicating simple futurity.
As you can guess, although the
philosopher-grammarians of the 18th
century worked hard to enforce that
complicated rule, they were as unsuccessful doing so as they were with
many other rules they tried to enforce,
including the distinction between different from and different than, who and
whom, and their rule against ending
sentences with prepositions (“What
are you looking at?”) H.L. Mencken’s
spoof of that rule in his Dictionary is
often repeated: “A preposition is a very
bad word to end a sentence with.”
Question: Are the two phrases, whether and whether or not interchangeable?
Answer: Not always, and when the
phrase or not is unnecessary, better
omit it. Here are two sentences in
which whether alone is enough: The
question is whether the defendant intended
to strike the plaintiff. The witness does not
recall whether the defendant was present
at the crime.
But you need or not when the
phrase introduces a dependent clause.
Without the phrase or not in the following sentences, they would be unidiomatic: Whether or not the search
committee hires a consultant, some unbiased advice is needed. The stock market
reflects expectation, whether or not the
expected events occur.
In both of those two sentences you
can move the phrase or not to the end
of the dependent clause: Whether the
search committee hires a consultant or not,
some unbiased advice is needed. The stock
market reflects expectation, whether the
expected events occur or not.
The exception to this rule is that
when there are two alternatives, and
the second is clearly stated, omit or
not. This sentence illustrates: Whether
you take a plane or drive your car, you can
expect to encounter delays.
From the Mailbag
On the day the question about “all of
the” arrived, so did an e-mail from
another reader in which she criticized
the following incorrect statement: “It’s
not so unpopular of an opinion . . .”
She wondered why the word of was
inserted into a negative statement,
when you would never insert it into a
similar affirmative statement like, “It’s
so popular of an idea.”
It may be explainable by the process
of analogy. Phrases like, “much of a
problem,” “more of a solution” and
“a great amount of trouble” require
that the words of a and of, respectively,
be added for correct grammar. So the
common errors, “It’s not so unpopular
of an opinion,” “not so big of a house,”
came about. The correct statements
would be “not so popular an opinion,”
and “not so big a house.”
English teachers tell us to avoid negative statements. I can recall one who
would not let a hapless student finish
a sentence that she began with the
words, “I don’t think . . .” The teacher
would interrupt, “If you don’t think,
just sit down.” But negatives are not
all bad. Some vividly portray great
emotion, and I wish I could quote
them to that teacher. Consider Sir Walter Scott’s “unwept, unhonored, and
unsung,” predicting the death of “the
man with soul so dead,/Who never to
himself hath said/This is my own, my
native land!” Or Lord Byron’s account
of “the wretch, . . . concentered all
in self,” who died, “unknelled,
uncoffined, and unknown.” Or George
Orwell’s, “not unblack dog [who]
chased a not unsmall rabbit across a
not-ungreen field.”
GERTRUDE BLOCK is lecturer emerita at the
University of Florida College of Law. She is the
author of Effective Legal Writing (Foundation
Press) and co-author of Judicial Opinion Writing
(American Bar Association). Her most recent
book is Legal Writing Advice: Questions and
Answers (W. S. Hein & Co., 2004).
important) is that the Court of Appeals is now willing to
read into statutes provisions which the Legislature had
considered, but rejected. What changes may come of this
remarkable Court of Appeals four-to-three decision are
yet to be seen.
Inc., 292 F.3d 134 (2d Cir. 2002) (ruling that the Legislature’s failure to grant
members the right to sue derivatively on behalf of limited liability companies
does not prevent the court from recognizing such a right in common law);
Weber v. King, 110 F. Supp. 2d 124, 131 (E.D.N.Y. 2000) (explaining that a limited
liability company is a cross-breed of the corporate and partnership forms, that
statutory authority provides the right to bring derivative actions on behalf of a
corporation and partnership, and therefore members may commence a derivative action on behalf of a limited liability company).
11. Tzolis v. Wolff, 39 A.D.3d 138, 829 N.Y.S.2d 488 (1st Dep’t 2007).
1. Caprer v. Nussbaum, 36 A.D.3d 176, 189, 825 N.Y.S.2d 55 (2d Dep’t 2006);
Schindler v. Niche Media Holdings, LLC, 1 Misc. 3d 713, 716, 772 N.Y.S.2d 781
(Sup. Ct., N.Y. Co. 2003).
12. Id. at 139.
14. See, e.g., Bischoff v. Boar’s Head Provision Co., 38 A.D.3d 440, 440, 834
N.Y.S.2d 22 (1st Dep’t 2007); Wilcke v. Seaport Lofts, LLC, 45 A.D.3d 447, 448, 846
N.Y.S.2d 133 (1st Dep’t 2007); see also Out of the Box Promotions LLC v. Koschitzki,
15 Misc. 3d 1134(A), 7, 841 N.Y.S.2d 821 (Sup. Ct., Kings Co. 2007).
Caprer, 36 A.D.3d at 189.
3. See id.; see also Hoffman v. Unterberg, 9 A.D.3d 386, 388–89, 780 N.Y.S.2d
617 (2d Dep’t 2004) (ruling that an “owner/member of a limited liability
company does not have the right to bring a derivative action on behalf of the
4. Lio v. Mingyi Zhong, 10 Misc. 3d 1068(A), 6, 814 N.Y.S.2d 562 (Sup. Ct., N.Y.
Co. 2006); see LLCL § 408(b) (providing that “the managers shall manage the limited liability company by the affirmative vote of a majority of the managers”).
5. See LLCL § 409(a) (requiring a manager to “perform his or her duties . . .
in good faith and with that degree of care that an ordinarily prudent person in
a like position would use under similar circumstances”); see also Nathanson v.
Nathanson, 20 A.D.3d 403, 404, 799 N.Y.S.2d 83 (2d Dep’t 2005); TIC Holdings,
LLC v. HR Software Acquisition Group, Inc., 194 Misc. 2d 106, 113–14, 750
N.Y.S.2d 425 (Sup. Ct., N.Y. Co. 2002), aff’d, 301 A.D.2d 414, 755 N.Y.S.2d 19 (1st
Dep’t 2003).
13. Id. at 142–43.
15. The First Department granted leave to appeal its February 8, 2007 decision
in Tzolis v. Wolff on May 31, 2007. See Tzolis v. Wolff, 2007 N.Y. App. Div. Lexis
6760, *1 (1st Dep’t May 31, 2007).) The issue certified for appeal was “whether,
in the absence of express language in the Limited Liability Company Law, a
member of a limited liability company has standing to sue derivatively on the
company’s behalf.”
16. 10 N.Y.3d 100, 855 N.Y.S.2d 206 (2008).
17. Id. at 105.
18. Id. at 108.
19. Id.
20. Id. at 109.
See id.
7. See, e.g., Caprer, 36 A.D.3d at 191–93; KSI Rockville, LLC v. Eichengrun, 305
A.D.2d 681, 682, 760 N.Y.S.2d 520 (2d Dep’t 2003); Bernstein v. Kelso & Co., 231
A.D.2d 314, 322–23, 659 N.Y.S.2d 276 (1st Dep’t 1997); Lio, 10 Misc. 3d at 4.
See id.
12 Misc. 3d 1151(A), 5–7, 819 N.Y.S.2d 852 (Sup. Ct., N.Y. Co. 2006).
10. Id.; see Cabrini Dev. Council v. LCA Vision, Inc., 197 FRD 90, 97–98 (S.D.N.Y.
2000), vacated in part on other grounds sub nom. Excimer Assocs., Inc. v. LCA Vision,
21. Id. at 119.
22. Id. at 120 (citing, e.g., People v. Bratton, 8 N.Y.3d 637, 838 N.Y.S.2d 828 (2007);
In re Grand Jury Subpoena Duces Tecum (Museum of Modern Art), 93 N.Y.2d 729,
697 N.Y.S.2d 538 (1999); Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d
577, 673 N.Y.S.2d 966 (1998); People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310
(1st Dep’t 1984).
23. Tzolis, 10 N.Y.3d 121.
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Juan D. Abreu
Morenike Adadevoh
Jennifer Adams
Jennifer Marie Addonizio
Audrey Jean Aden
Rafik Jay Alidina
Adam Patrick
Michelle Alter
Catherine Bridget Altier
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Tyler Hancock Amass
Revital Amilov
Galia Antebi
Christina Elizabeth
Hiroki Aoyama
Jennifer M. Apple
Kiyoshi Asada
Daniel Patrick Ashe
Annika Elaine Ashton
Timothy Roy Bachman
Donald Mark
Nicolas Bagley
Jennifer Allison Baines
Deepika Bains
Steven Bamundo
Dana Ann Banks
Jason M. Barr
Robert Anthony Bartrop
Lystra Batchoo
Peter Thomas Bazos
Mark Egan Beatty
Rostin Behnam
Alexandra Rachel Bell
Michael S. Benn
Jennifer Ann Bensch
Peri Avishai Berger
Paige Lynn Berges
Maud A. K. Bergkvist
Meredith Faye Bergman
Jennifer Ann Berman
Jessica Gittle Berman
Darron E. Berquist
Jason Berrebi
Eric Samuel Bienenfeld
Emily Arlene Bishop
Mark Albert Bissada
Marushka Aynsley Bland
Orit Batia Blankrot
Kenneth Scott Blazejewski
Ellisha Ann Blechynden
Vanessa Valerie Bossard
Stephen Christopher
Julia Boyd
Patrick Joseph Boyle
Caitlin M. Bradley
Christopher Warren
Richard Michael Brand
Christina O. Broderick
Anna Brook
Sandra D. M. Brown
Benjamin Daniel Brutlag
Hannah Marie Buch
Eric Antell Buckley
Scott Francis Budzenski
Philip Anthony Buffa
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56 | July/August 2008 | NYSBA Journal
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De La Cruz
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Nicole Eva Phillips
Todd Scott Shaw
Patrick W. Shea
Jane Jin-rong Shen
Rebecca Joelyn Shenn
Rodrick Earl Shepard
Mary Kate Virginia
Tricia B. Sherno
Hiroko Shibata
Gregory Chen Yu Shih
Sun Kyung Shin
Karina Shostakovsky
Amisha Shrimanker
In Memoriam
S. Jeanne Hall
New York, NY
Edwin J. Loewy
Rockville Centre, NY
F. John Handler
Great Neck, NY
Roy M. Mersky
Austin, TX
J. Gregory Hoelscher
East Aurora, NY
Edwin L. Schwartz
Ardsley, NY
NYSBA Journal | July/August 2008 | 57
Lauren Elizabeth
Matthew Joseph Siclari
Molly Manley Siems
Derek Irving Adam
Zachary Winthrop
Betsy Kim Silverstine
Aaron Mathew Singer
Rifka Miriam Singer
Scott N. Singer
Brooke Marie Skartvedt
Brett D. Smith
Daniel Garrett Smith
Lewis Benjamin Smith
Joshua Howard Soloway
Candice Elizabeth
Ajay Sondhi
Laura Emily Sorenson
Marisa Alejandra
George Edward Spencer
Michael Andrew Spiegel
Christina Spiller
Laurence Patrick Spollen
Cham I. Stadtmauer
Joseph Michael Stancati
Anthony Michael Stark
Molly O. Stark
Jennifer Lee Stewart
John David Stewart
Holly Stiles
Mae Amelia Stiles
Jessica Christine Straley
Jonathan Brett Strom
Mohammed Arsalan
Nicholas Edward Surmacz
Tait Oscar Svenson
Summer Lee Haunani
Shawn Lyle Tabankin
Emi Takeda
Vincent E. Taurassi
Joseph B. Teig
Yitzchak Isaac Tendler
Catherine Phillips Tennant
C. Philip Theil
Daniel F. Thomas
Edward Tanner Timbers
Philip Vyse Tisne
Lia Shoshana Toback
Christopher Devin Tom
Cassandra M. Tompa
Brian Chi Tong
Carmen Rita Torrent
Emanuele Tosolini
Meghan Sile Towers
George Edward Triffon
Nicholas Johnstone
Adam Scott Trost
Lauren Elizabeth Troxclair
Peter Gordon Tucker
Abigail Candice Tulloch
Christopher Michael
Erica Brooke Tunick
Fernando Andres Tupa
Michael Seth Turner
Jamar Wesley Tyndale
Rebecca Michelle Urbach
Jennie Hicks Utsinger
Carly Paige Vella
Elena Sophia Virgadamo
Guillame Vitrich
Philip P. Vogt
Abby Hannah Volin
Vincent Volino
Jochen Von Berghes
Theresa Bui Wade
Meital Waibsnaider
Andrew James Wallace
William Louis Wallander
Carolyn Rose Walther
Jennifer Zewen Wang
Robert Wann
Joseph John Wardenski
Lindsay May Weber
William Copley Weeks
Amy Deborah Weiner
Daniel William Weininger
Richard Lawrence
Gregory Martin Weiss
William F. Weld
Terry Lamar Wells
Grace Wen
Elana A. Wexler
Nathan Lingle Whitehouse
Corey Steven Whiting
Benjamin Jacobs Widlanski
Allegra Cristina Wiles
Margaret A. Williams
Morenike Kalila Williams
Terence D. Williams
Aaron Kyle Williamson
Jessee Wolff
Amy Faith Wollensack
Keith W. Woodeshick
Geoffrey D S Wright
Horace Hao Wu
Masamichi Yamamoto
Pengpeng Yan
Michael Stirling Ybarra
Sarah Yun Sook Yeang
Leon Ari Yel
Sara Yoon
Kevin Younai
Adam Robert Young
Jessica S. Yuan
Marisa Francesca Audrey
Renee Michele Zaytsev
Jialin Zhong
Bernard Chen Zhu
Joseph Gene Zihal
Raymond John Zorovich
Marc Nathan Zubick
Sara Childs ZunigaParkinson
Kamilla Aslanova
Salim Azzam
Daniel Otto Bodah
58 | July/August 2008 | NYSBA Journal
Zev Brachfeld
Michael Brudoley
Carla Lyn Cheung
Eileen Yoon Young Choi
Paul E. Colinet
Vilmarie Cordero
Venir Turla Cuyco
Kenneth Michael
Nicoletta Del Vecchio
Theresa Angela DeLuca
Marco Alejandro Favila
Zlata Fayer
Melissa Jane Feldman
Valerie Katherine Ferrier
Allyson Franklin
Shana Fried
Rachel Dinerstein Geballe
Lindsay Kristine Gerdes
Tamara Lila Giwa
Albert Gurevich
Mary Josephine Hannett
Despina Hartofilis
Gudmundur Ingolfsson
Lindsey Morgan James
Debra Eichorn
Shashi I. Kara
Laura Lopez Keegan
Igor Kotlyar
Lisa Laura Lambert
Amy L. Leipziger
Joseph J. Lepelstat
Jacob McClain Lipsky
Samuel Wut-leung Lui
Eloise Le Magnen
Paul Anthony
John P. McCaffrey
Adana A. McGlashan
Gregory Sean
Kerene I. Morgan
Christopher Analdo Myco
Lesley Oseep
Jonathan Peldman
Jonathan Ross Prazak
Daniel Xerxes Robinson
Kerry Rowe
Joseph Jonathan Russo
Susan Kathleen Scheuerer
Rian Aramis Silverman
Taegin Stevenson
Artur Sutyushev
Jessica Leigh Weiss
Marius C. Wesser
Jennifer Anne Williams
Scott Evan Wortman
Spartak Xhemali
Raymond Zeitoune
Benjamin C. T. Zeman
Michael Jacob Zussman
Katherine Marie Clark
Sarah Louise Elghannani
Donald N. Forte
Karen Grace Horth
Deborah Ann Kozemko
Ignacia Soledad Moreno
Michele M. Ruscio
Lynne Medley Russell
Sergio Alexander Saravia
Jennifer Bassett Sheehan
Joan P. Sullivan
Jayme Majek Torelli
Jayson B. Weinstein
Robert Martin Witt
Stephen Wyder
Azra Batool Zaidi
Ellen Karena Zwijacz
Tracy Paula Cheuk
Tarini Arogyasamy
Markus Hartmann
Oskar Liivak
Katherine Marretta
Michael Patrick Porciello
John F. Darling
B. Andrew Dutcher
Kevin LoVecchio
Herbert Hotchkiss
Hannah M. Nezezon
Michael Louis Abitabilo
Leticia Arzu
Dina Marie Aversano
Valerie Maria Baldizon
Andrew H. Berks
Darren M. Bohrman
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Scott Michael Brien
Claudia M. Cacace
Brian Lawrence Charles
Ellen Lynn Cooper
Thomas Alexander Dallal
Gina Marie Decrescenzo
Janet Marie DiFiore
Canice Thomas Dornelly
Danielle Fenichel
Omer Gil
Gencian Gjoni
Eileen Gong
Julia Diane Greble
Thomas Gerard Grogan
Joseph Rickard Halprin
Sean Gregory Hanagan
Peter Dominic Herger
Marguerite Ana Hogan
Annette Marilyn Hollis
Eric Matthew Holzer
Susan Fredda Israel
Lisa Beth Kelly
Jeffrey I. Klein
Rebecca Nicoletta
Michael John McCaffrey
Lisa Marie McWhirter
Brian D. Meisner
Christopher Andersen
Brian Yardley Parker
Erik David Paulsen
Joseph Paul Petito
Gary L. Schell
Marla Blair Siegel
Katherine Mary Sohr
Sergio A. Spaziano
Robert James Steinberger
Anthony Vieux
Adam Francois Watkins
Scott Ross Abraham
Michael Joseph Alber
Christopher Michael
Karen S. Barbanel-Estis
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Luigi Alberto Belcastro
Christopher Robert
Justin Michael Birzon
Denise Marie Bogue
Obianuju Ifeyinwa
Gregg Cohen
James Walter Cole
Jennifer A. Contreras
Erin Colleen Darcy
James John Daw
Christopher William
Andriana M. Doriza
Dennis John Duncan
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Jay L. Feigenbaum
Stuart Lee Finz
Adam Harris Fisher
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Evelyn Gong
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Lindsey Beth Guerrero
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Douglas Spencer Meisel
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Alyssa Anne Preston
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Vincent Michael
Stephanie Marie Stokman
Ayesha Abbasi
Ana Luisa Vasconcellos
Jungmihn Jamie Ahn
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Dennis Charles Alex
Daniel Kamiar Algilani
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Ko Anada
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Kristina Arvanitis
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Amabelle Casupanan
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Beatriz Azcuy
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Marc Balavoine
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Lesley Anne Bark
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Frank Churchill Bartlett
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Sheldon Louis Beer
Forest Edwin Bell
Osmar Jose Benvenuto
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Pascal Berghe
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Kobi Bessin
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Dino Bjelopoljak
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Veronique Catherine
Conor Brendan Boyle
Raymond Aaron Brandes
Kristen Lynn Brewer
Michael Thomas Bride
Cherylyn Jeanne Briggs
Edward Tyke Britan
Annelies Brock
Jacqueline Elizabeth
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Genger Charles
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Chinhwei Chen
Ke Chen
Yuton Chen
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Ilhwan Cho
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Fielding Gates
Andreas Gerten
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Kyungwon Gil
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Aamna Jalal
Dianne Jauregui
Sabino Jauregui
Edmund Kean John
LaTanya Jones
Diana Jong
Darcy Ann Jordan
Violynn Javel Joseph
NYSBA Journal | July/August 2008 | 59
Skye Spencer Justice
Shin Ho Kang
Benjamin John Keiser
Ericca R. Keith
Freda Keklik
Roli Monica D. Khare
Elisabeth Travis Kidder
Austin Dong Kim
Da Won Kim
Hyung Kyu Kim
Christopher Robert
Shinri Kinoshita
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Nancy A. Parry
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Darshna M. Patel
60 | July/August 2008 | NYSBA Journal
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Jonathan Christopher
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Alicia M. Perri
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Nghiem Vu Pham
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2008-2009 OFFICERS
New York
New York
Immediate Past President
Claire P. Gutekunst, New York
Susan B. Lindenauer, New York
Barry Kamins, Brooklyn
Hon. Rachel Kretser, Albany
Patricia L. R. Rodriguez, Schenectady
David M. Hayes, Syracuse
David A. Tyler, Ithaca
David M. Schraver, Rochester
David L. Edmunds, Jr., Buffalo
John S. Marwell, Mount Kisco
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Hermes Fernandez
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Aaron, Stewart D.
Abernethy, Samuel F.
Abramowitz, Alton L.
† * Alcott, Mark H.
Alden, Steven M.
Anello, Robert J.
Armas, Oliver J.
Badner, Lisa Ray
Badway, Ernest Edward
Berke-Weiss, Laurie
Blanchard, Kimberly S.
Borsody, Robert P.
Brown Spitzmueller, Janiece
Brown, Peter
Burns, Howard W., Jr.
† Campos-Galvan, Manuel
Caraballo, Dolly
Chang, Vincent Ted
Chin, Sylvia Fung
Christian, Catherine A.
Cohen, Carrie H.
Collazo, Ernest J.
* Cometa, Angelo T.
Crespo, Louis
Davis, Tracee E.
Draper, Thomas G., Jr.
Drayton, Joseph Michael
Eppler, Klaus
Finerty, Hon. Margaret J.
* Forger, Alexander D.
Gesinsky, Loren M.
* Gillespie, S. Hazard
Goldberg, Evan M.
Gredd, Helen A.
Gutekunst, Claire P.
Haig, Robert L.
Hariton, David P.
Harris, Joel B.
Hawkins, Dennis R.
Hayden, Hon. Douglas J.
Hollyer, A. Rene
James, Hon. Debra A.
Kennedy, Henry J.
Kiernan, Peter J.
* King, Henry L.
Kobak, James B., Jr.
Kougasian, Peter M.
† * Krane, Steven C.
Larson, Wallace L., Jr.
† Leber, Bernice K.
Leo, Robert J.
Lesk, Ann B.
Lindenauer, Susan B.
* MacCrate, Robert
Martin, Edwina Frances
Masley, Hon. Andrea
McEnroe, Diane Crosson
Miller, Michael
Millett, Eileen D.
Morgan, Hadaryah Tebach
Morril, Mark C.
Myers, Thomas
Nathanson, Malvina
O’Neill, Paul J., Jr.
* Patterson, Hon. Robert P., Jr.
Prowda, Judith B.
Reed, Thomas A.
Reimer, Norman L.
Rosenthal, Lesley Friedman
Rosner, Seth
Rothstein, Alan
Russell, William T., Jr.
Safer, Jay G.
* Seymour, Whitney North, Jr.
Sherwin, Peter J.W.
Sigmond, Carol Ann
Silkenat, James R.
Smith, Hon. George Bundy
Sonberg, Hon. Michael R.
Spelfogel, Evan J.
Spiro, Edward M.
Steinberg, Lewis R.
Stenson, Lisa M.
Tesser, Lewis
Vitacco, Guy R., Jr.
Wachtler, Lauren J.
Younger, Stephen P.
Zulack, John F.
Adler, Roger B.
Bonina, Andrea E.
Branda, RoseAnn C.
Cohn, Steven D.
Golinski, Paul A.
Kamins, Barry
Romero, Manuel A.
Sunshine, Hon. Jeffrey S.
Sunshine, Hon. Nancy T.
Szochet, Diana J.
Breen, Michael L.
Casserly, Timothy E.
Costello, Bartley J., III
Davidoff, Michael
DeFio Kean, Elena
Dolin, Thomas E.
Farley, Susan E.
Fernandez, Hermes
Gold, Majer H.
Greenthal, John L.
Higgins, John Eric
Higgins, Patrick J.
Kretser, Hon. Rachel
Lally, Sean P.
Liebman, Bennett M.
Meislahn, Harry P.
Miranda, David P.
Moy, Lillian M.
Nachimson, Steven G.
Netter, Miriam M.
Perino, Justina Cintron
Potter, James T.
Powers, John K.
Privitera, John J.
Roberts, Christina L.
Salkin, Prof. Patricia E.
Schofield, Robert T., IV
†* Tharp, Lorraine Power
Thornton, Timothy B.
* Williams, David S.
* Yanas, John J.
Breedlove, Brian H.
Burke, J. David
Caffry, John W.
Coffey, Peter V.
Cullum, James E.
Ferradino, Stephanie W.
Haelen, Joanne B.
Rider, Mark M.
Rodriguez, Patricia L. R.
Sterrett, Grace
Fennell, Timothy J.
Gall, Erin P.
Getnick, Michael E.
Gigliotti, Louis P.
Gingold, Neil M.
Greeley, Kristin B.
Hayes, David M.
Howe, David S.
Larose, Stuart J.
Longstreet, Ami S.
Mitchell, Richard C.
Pellow, David M.
Peterson, Margaret Murphy
†* Richardson, M. Catherine
Stanislaus-Fung, Karen
Virkler, Timothy L.
Cummings, Patricia A.
Denton, Christopher
Egan, Shirley K.
Gorgos, Mark S.
Lewis, Richard C.
†* Madigan, Kathryn Grant
Marris, Karin Huntley
May, Michael R.
Sheehan, Dennis P.
Tyler, David A.
Brown, T. Andrew
Buholtz, Eileen E.
† * Buzard, A. Vincent
Castellano, June M.
Gould, Wendy L.
Harren, Michael T.
Kukuvka, Cynthia M.
Kurland, Harold A.
Lawrence, C. Bruce
Lightsey, Mary W.
* Moore, James C.
* Palermo, Anthony R.
Schraver, David M.
Smith, Thomas G.
Tilton, Samuel O.
* Vigdor, Justin L.
* Witmer, G. Robert, Jr.
Brady, Thomas C.
Chapman, Richard N.
Doyle, Vincent E., III
Edmunds, David L., Jr.
Embser, James T.
Evans, Lydia V.
Fisher, Cheryl Smith
Freedman, Maryann Saccomando
Hassett, Paul Michael
Lamantia, Stephen R.
Manias, Giles P.
McCarthy, Joseph V.
Meyer, Harry G.
O’Donnell, Thomas M.
O’Reilly, Patrick C.
Porcellio, Sharon M.
Sconiers, Hon. Rose H.
Subjack, James P.
Young, Oliver C.
Amoruso, Michael J.
Burke, Patrick T.
Burns, Stephanie L.
Byrne, Robert Lantry
Campanaro, Patricia L.
Cusano, Gary A.
Dohn, Robert P.
Fontana, Lucille A.
Goldenberg, Ira S.
Gordon Oliver, Arlene Antoinette
Gouz, Ronnie P.
Kranis, Michael D.
Lagonia, Salvatore A.
Markhoff, Michael S.
Marwell, John S.
Miklitsch, Catherine M.
* Miller, Henry G.
† * Ostertag, Robert L.
Selinger, John
† * Standard, Kenneth G.
Strauss, Barbara J.
Thornhill, Herbert L., Jr.
Van Scoyoc, Carol L.
Wallach, Sherry Levin
Welby, Thomas H.
Wilson, Leroy, Jr.
Asarch, Hon. Joel K.
Austin, Hon. Leonard B.
Block, Justin M.
* Bracken, John P.
Buonora, John L.
Cartright, Valerie M.
Chase, Dennis R.
Clarke, Lance D.
Fishberg, Gerard
Franchina, Emily F.
Gann, Marc
Good, Douglas J.
Gross, John H.
† * Levin, A. Thomas
Levy, Peter H.
Luskin, Andrew J.
Margolin, Linda U.
Mihalick, Andrew J.
* Pruzansky, Joshua M.
Purcell, A. Craig
* Rice, Thomas O.
Robinson, Derrick J.
Steinberg, Harriette M.
Stempel, Vincent F., Jr.
Walsh, Owen B.
Winkler, James R.
Cohen, David Louis
Dietz, John R.
Gutierrez, Richard M.
Haskel, Jules J.
James, Seymour W., Jr.
Leinheardt, Wallace
Lomuscio, Catherine
Lonuzzi, John A.
Nizin, Leslie S.
Terranova, Arthur N.
Wimpfheimer, Steven
Bailey, Lawrence R., Jr.
* Pfeifer, Maxwell S.
Quaranta, Kevin J.
Sands, Jonathan D.
Schwartz, Roy J.
Stansel, Lynn
Summer, Robert S.
Weinberger, Richard
Bartlett, Linda G.
Brown, Geraldine Reed
Cahn, Jeffrey Barton
Castillo, Nelson A.
Elder-Howell, Andrea M.
* Fales, Haliburton, II
* Walsh, Lawrence E.
† Delegate to American Bar Association House of Delegates
* Past President
NYSBA Journal | July/August 2008 | 63
Do’s, Don’ts, and Maybes:
Usage Controversies — Part II
n the last column, the Legal Writer
discussed four controversies in
legal writing. We continue with
10 more.
5. Placing quotation marks. Many
legal writers believe that periods and
commas go inside or outside quotation
marks depending on the quotation.
They’d be right in England. They’re
wrong in America.
Use quotation marks to introduce
and close quotations.1 Periods always
go inside quotation marks. Correct: The
attorney told the jury “you must find
the defendant not guilty of murder in
the second degree.”
Commas always go inside quotation marks. Correct: The attorney told
the judge that the plaintiff had “moved
for legal, or attorney, fees,” but the
attorney was wrong. Exceptions: “I
want to settle,” she said, “but my client doesn’t.” My boss always said, “It
is what it is.”
Semicolons go outside quotation
marks. Correct: The prosecutor told
the jury that “the defendant bought
the gun from a local pawn shop”; the
prosecutor then published the gun to
the jury.
Colons always go outside quotation
marks. Correct: The attorney asked the
following question: “Did you take any
medications today?” The judge noted
that “the attorney gave us a list of colors”: red, blue, green and orange.
Whether quotation marks go before
or after a question mark depends on
whether the question is in the original.
Example of question in the original: The
clerk asked me, “Sir, do you want to
submit opposition papers?” Example
of question not in the original: Who said,
64 | July/August 2008 | NYSBA Journal
“I have nothing to offer but blood, toil,
tears and sweat”?
Putting quotation marks before or
after an exclamation point depends,
like the question mark, on whether
the exclamation point is in the original. Example of exclamation point in the
original: “Counselor, you know exactly
what I mean!” said the judge. Example
of exclamation point not in the original:
“Counselor, stop calling me “ma’am”!
6. Footnotes and endnotes. Some
overuse them. Others don’t use them
at all.
Avoid putting substance or deep
analysis in footnotes or endnotes.
Footnotes or endnotes are acceptable
for collateral thoughts, special effects,
excerpts of testimony, and quoting
statutory or constitutional provisions.
If the material is important enough to
warrant a footnote or an endnote, then
it’s important enough to include in
the text. Being a substantive argument
in a footnote or endnote is like being
a middle child — you’ll be ignored.
Footnotes or endnotes are an unpleasant interruption for readers: “‘Having
to read a footnote resembles having
to go downstairs to answer the door
while in the midst of making love.’”2
For legal briefs, use footnotes, if at
all, and not endnotes. Unless you’re
writing a law review or journal article,
don’t include citations in footnotes or
endnotes. The Legal Writer does not
recommend citational footnotes. Those
who favor citational footnotes argue
that footnoting citations makes sentences shorter; paragraphs more forceful and coherent; ideas, not numbers,
more controlling; poor writing more
laid bare; caselaw better discussed;
and string citations less bothersome.3
Opponents of citational footnotes —
like the Legal Writer — argue that
looking up and down at the footnotes
is distracting.4 Readers need to find
citations quickly.
Having few footnotes or endnotes
will draw the reader’s attention to the
footnote or endnote. If the footnote or
endnote isn’t important or necessary,
cut it out. Draw the reader’s attention
with your text.
Having too many footnotes or endnotes will cause readers to lose focus,
and your footnotes or endnotes will
lose value.
Don’t try to cheat on page limit by
putting the bulk of your text in footnotes or endnotes. Everyone will see
right through this tactic.
7. S’ or s’s. Singular possessive: Some
legal writers add only an apostrophe
and leave out the “s.” The Legal Writer
recommends putting an apostrophe
“s” after a singular possessive ending
in a sibilant (Ch, S, X, or Z sound).
That way you’d write it the way you’d
say it out loud. Example: John Adams’s
Thoughts on Government. Not: John
Adams’ Thoughts on Government.”
Example: John Roberts’s opinion. Not:
John Roberts’ opinion. Without the
apostrophe “s,” the pronunciation
would be incorrect.
Plural possessives: Don’t use an
apostrophe “s” after a plural possessive ending in a sibilant. Example: “The
attorneys’ rules directed all internal
disputes to arbitration.” Not: “The
attorneys’s rules directed all internal
disputes to arbitration.”
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