Referrals to New York State attorneys. The Lawyer Referral and Information Service is a public service of the New York State Bar Association that provides ...
Thứ Sáu, 31 tháng 7, 2009
"Lifer" Need Not Apply
More Age Discrimination:
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Urgent and IMMEDIATE need...
Downtown Manhattan law firm seeks 2009 JD/law school graduates who just sat for the NY/NJ BAR for Monday 8/3/09 start for 1 month document review.
Will work on timely litigation. 2009 GRADS ONLY.
$20/hr hours are 10 am to 6pm plus OT
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* Compensation: $20/hr plus OT.
* Principals only. Recruiters, please don't contact this job poster.
* Please, no phone calls about this job!
* Please do not contact job poster about other services, products or commercial interests.
Admitted Attorney Going Rate - $10 An Hour
Hi Tom,
I worked as a temp for about 4 years and now I have been unemployed
for about 6 months off and on collecting unemployment.
Yesterday, I applied for a job on craigslist for an attorney
position in queens. I will attach the part of the email with out my
name as to save myself embarrassment as I know people who read your
blog. $10 a fucking hour, I could make more working at McDonalds.
"Dear Candidate,
The starting salary is $10 per hour, $15 per hour overtime, but
will increase upon demonstration of capability. If you are interested,
please email us back the dates that you are available for an interview
this week.
Wang Law Firm"
I worked as a temp for about 4 years and now I have been unemployed
for about 6 months off and on collecting unemployment.
Yesterday, I applied for a job on craigslist for an attorney
position in queens. I will attach the part of the email with out my
name as to save myself embarrassment as I know people who read your
blog. $10 a fucking hour, I could make more working at McDonalds.
"Dear Candidate,
The starting salary is $10 per hour, $15 per hour overtime, but
will increase upon demonstration of capability. If you are interested,
please email us back the dates that you are available for an interview
this week.
Wang Law Firm"
Thứ Năm, 30 tháng 7, 2009
Coverage Counsel
I'm not sure how it's possible, but apparently I never, before now, had a link in my blogroll to Roy A. Mura, Esq.'s wonderful blog Coverage Counsel. Mr. Mura's posts deal with no-fault issues, as well as a much wider range of insurance law matters.
Thứ Ba, 28 tháng 7, 2009
Nostalgic For The Update Legal Girls
Better Questions Yield Better Answers
What never ceases to amaze me in the game of life is the power of questions. The right question at the right place and right time can bring your thoughts into alignment and ultimately yield incredible answers.
This same thinking permeates the game of DWI defense.
So, What is the "evidence" of intoxication?
Yes, cases need to be proven, and they need to proven by the use of evidence. Each case has a set of facts but moreso we have a perspective of a witness or witnesses who will testify. They will not be testifying to mere facts. They will be giving their opinion about those facts by coloring them. What do I mean by coloring? Saying that you smell alcohol, and saying that you smell a strong odor of alcohol coming from the face or facial region are two different things. Yes, Virginia adjectives color. Saying someone was all over the road is different then saying they moved in and out of lane on two occasions within a 2 mile stretch of highway. Pronouns can color as well. Calling someone a defendant or an accused is not like calling them by their first name. This dehumanization is deliberate.
Truth is often a perspective. It is a biased opinion with or without color. My job as a professional problem solver is to seek out the best perspectives for my client. All facts have viewpoints.
A fact: a person has glassy, bloodshot, and watery eyes on the night or morning of their arrest.
WHY?
Was it because they were intoxicated or are there other reasons? Other Reasons or Causes yield doubt. Reasonable doubt is common sense doubt or common sense reasons other than they were drunk.
Were they tired? Were they sleepy? Were they sick? Were they suffering from a cold? Do they have allergies? Were their contacts in for too many hours? Were they exposed to smoke? Are their eyes normally like that? Was it because it was 3:00AM? Was it because they were crying? Was it because they just got slapped in the face? Was it because the weather outside was 10 degrees? Was it because their car air-conditioner dries their eyes?
Human beings come in all different shapes and sizes. We are not all the same. In fact, on any given day or time we may react differently to the exact same irritant. Why is this? Because we are dynamic, our bodies are constantly in flux, and our physiologies are continually adapting to a changing environment. Many of the indicators (signs) of intoxication match very closely with those of us who are sleep deprived, over worked, and just plain tired.
If I came to your house and woke you up at 3:00am, how well would you perform on balance-coordination exercises? How well would your brain be functioning? Would you understand my questions? Is it because you are intoxicated or disoriented or tired or confused or scared or nervous? Now imagine you are driving home, it was a nice dinner or party, it is late, you are ready for bed, all of a sudden... blue and red lights, your heart is racing, your throat is in your chest, you are perspiring heavily, we know where this is going... Your best defense is in asking the right questions.
This same thinking permeates the game of DWI defense.
So, What is the "evidence" of intoxication?
Yes, cases need to be proven, and they need to proven by the use of evidence. Each case has a set of facts but moreso we have a perspective of a witness or witnesses who will testify. They will not be testifying to mere facts. They will be giving their opinion about those facts by coloring them. What do I mean by coloring? Saying that you smell alcohol, and saying that you smell a strong odor of alcohol coming from the face or facial region are two different things. Yes, Virginia adjectives color. Saying someone was all over the road is different then saying they moved in and out of lane on two occasions within a 2 mile stretch of highway. Pronouns can color as well. Calling someone a defendant or an accused is not like calling them by their first name. This dehumanization is deliberate.
Truth is often a perspective. It is a biased opinion with or without color. My job as a professional problem solver is to seek out the best perspectives for my client. All facts have viewpoints.
A fact: a person has glassy, bloodshot, and watery eyes on the night or morning of their arrest.
WHY?
Was it because they were intoxicated or are there other reasons? Other Reasons or Causes yield doubt. Reasonable doubt is common sense doubt or common sense reasons other than they were drunk.
Were they tired? Were they sleepy? Were they sick? Were they suffering from a cold? Do they have allergies? Were their contacts in for too many hours? Were they exposed to smoke? Are their eyes normally like that? Was it because it was 3:00AM? Was it because they were crying? Was it because they just got slapped in the face? Was it because the weather outside was 10 degrees? Was it because their car air-conditioner dries their eyes?
Human beings come in all different shapes and sizes. We are not all the same. In fact, on any given day or time we may react differently to the exact same irritant. Why is this? Because we are dynamic, our bodies are constantly in flux, and our physiologies are continually adapting to a changing environment. Many of the indicators (signs) of intoxication match very closely with those of us who are sleep deprived, over worked, and just plain tired.
If I came to your house and woke you up at 3:00am, how well would you perform on balance-coordination exercises? How well would your brain be functioning? Would you understand my questions? Is it because you are intoxicated or disoriented or tired or confused or scared or nervous? Now imagine you are driving home, it was a nice dinner or party, it is late, you are ready for bed, all of a sudden... blue and red lights, your heart is racing, your throat is in your chest, you are perspiring heavily, we know where this is going... Your best defense is in asking the right questions.
Thứ Hai, 27 tháng 7, 2009
Are You Dizzy Yet? Lexpollution Pulls The Exact Same Crap In New York
Lexolution, paired up with Hogan & Hartson, has been stringing us along with a project we were “selected” for. First, on Friday, July 17th, at 4:30 pm, we were sent the following email:
Hi Everyone,
I wanted to let you know that we are a definite go for Monday. Please come to 750 Third Avenue (b/w 46th & 47th) at 9:00 am. Tell the person at the security desk that you are there for the Lexolution/Hogan & Hartson project, and they will direct you to the appropriate floor. Please remember to bring a photo-identification. The dress code for the project is business casual, but please err on the side of business for the first day. Scott Krowitz and I will be there to greet you.
PLEASE REPLY TO THIS EMAIL UPON RECEIPT SO THAT I CAN CONFIRM THAT YOU HAVE RECEIVED THIS INFORMATION. Also, please be sure to check your emails throughout the weekend for any potential updates. Many thanks-see you Monday,
Kim
Despite, the “definite go” at four thirty, at eleven o’clock that same Friday evening, we received another email telling a different story:
Hi Everyone,
The Hogan & Hartson project WILL BEGIN ON TUESDAY, JULY 21 AT 11:00 AM, not Monday. All of the other information is the same, but it’s repeated below. Sorry to ask you to do this again, but PLEASE REPLY TO THIS EMAIL UPON RECEIPT SO THAT I CAN CONFIRM THAT YOU HAVE RECEIVED THIS NEW INFORMATION.
Date: Tuesday, July 21
Time: 11:00 am
Place: 750 Third Avenue (b/w 46th & 47th). Tell the person at the security desk that you are there for the Lexolution/Hogan & Hartson project, and they will direct you to the appropriate floor. Please remember to bring a photo-identification.
Dress Code: Business casual, but please err on the side of business for the first day.
Kim
Needless to say, the project did not start Tuesday. We were then told it would be Wednesday or Thursday. Then Tuesday night, we receive the following email:
Hi Everyone,
I just wanted to let you know that it’s not likely that Hogan will start tomorrow (but check your email before you go to bed tonight and first thing in the morning just in case). If you don’t hear from me tonight or tomorrow morning, I will be in touch at some point tomorrow to give you an update.
Thanks again for your patience.
All the best,
Kim
And, no, it didn’t start Wednesday. Or Thursday either. See below:
Hi Again Everyone,
I just wanted to let you know that I am still waiting for more information from Hogan, but it doesn’t look like it will start tomorrow. They have assured me that the project will start, but the documents are not getting loaded as quickly as they anticipated, hence the delay.
Again, I apologize for this, and appreciate your patience.
Many thanks,
Kim
On Thursday, at eleven at night, we received “reassurances” that the “technical problems” would be resolved soon, though we would not be starting Friday:
Hi Everyone,
I just wanted to touch base again and let you know that we are still waiting on a start date from Hogan. The client has been in touch several times a day and I do believe the project will start. Hogan is using Attenex, a database they have not used before, for this project, and it seems they are having problems coordinating everything to load the documents, but they fully intend to move forward with the project once everything is figured out.
I understand your frustration (I really do), and appreciate your patience. I think we will have a start date soon. Thanks again for hanging in there.
Best regards,
Kim
Late Friday night, Lexolution claimed to have “good news” for us:
Hi Everybody,
Some good news-the project IS going to begin next week. Hogan is going to start people off in staggered groups of 5-10. On Monday I should be able to give you a better idea of exactly when you can expect to start, but please check your email over the weekend in case anything changes.
Thanks again for your patience, and have a great weekend.
Best regards,
Kim
We heard nothing over our “great weekends.” On Monday, we learned that both Lexolution and Hogan are indeed full of shit, and the project would not be starting for another couple of weeks, if ever:
Hi Everybody,
I just got off the phone with the people at Hogan, and they expect that it will take at least 7-10 days for the rest of the documents to finish loading. I know this is quite a bit longer than any of us initially anticipated. At this point, I cannot honestly say when the project will be fully up and running, and I don’t want you to miss out on any other opportunities waiting for this. Obviously, it will be great if this works out, but I will completely and totally understand if you need to take something else.
I know it doesn’t help, but I am truly sorry about the delay. I will continue to keep you posted about this project (and any other projects that come in), but I truly understand if you can’t wait anymore.
Please feel free to call or email me with any questions you may have.
All the best,
Kim
So, in other words, we have been expected to check our email around the clock for weeks on end, for a project that may not even materialize. Some of us tried to stick it out and give Lexolution and Hogan the benefit of the doubt. You feel like an ass for believing them and turning down other work, or even applying for things, because you are being assured every day that any day you will be starting. Obviously, we can not believe a freaking word either has to say at this point. Regardless of the economy, no one has the right to take advantage of and shit on people this way.
P.S. They were paying $32/hr straight for a mandatory 50-60 hr. workweek.
The Lexolution Horror Show Arrives In Los Angeles
Lexolution is AWFUL in LA. They, coupled with disgusting Dickstein, jerked around about 10 contract attorneys for months about the project starting back up. Dickstein in LA is also disgusting and offensive - they sent e-mails to the contract attorneys requesting that they stop the chattering, stay in designated areas (ie., not allowed to use the vending machines) and had set hours to make sure people were there the entire time. They also frequently sent out e-mails stating that if ONE privilege code was missed, it was grounds for IMMEDIATE termination. I will send you a couple more of these disgusting e-mails from Lex.
-----------------------------------------------------
From: "Nathan Khalil"
Date: Fri, 10 Apr 2009 22:35:13 -0400
To: Nathan Khalil
Subject: Dickstein - Project/Schedule Update
Hi Everyone,
I hope that this message finds each of you well.
We just learned today that there was some sort of development on the case, and Dickstein will not need you to come in to the office on Monday or Tuesday. I will be in touch with an update early next week, probably Monday.
Please reply to this e-mail to confirm receipt.
As always, thanks for your hard work. Have a good weekend.
Best regards,
Nathan Khalil
-----------------------------------------------------
From: Nathan Khalil
Sent: Monday, April 13, 2009 7:09 PM
To: Nathan Khalil
Subject: RE: Dickstein - Project/Schedule Update
Hi Everyone,
We just got another update on the project.
A development in the litigation has caused a lull in activity, and a potential change in the direction of the case. It now appears that the lull and uncertainty will carry through the week. (I have already spoken with the two of you who will be returning this week to review the documents of a particular custodian previously allocated to you.) Dickstein has informed us that they will monitor developments through the week, and will be in touch with updates, perhaps later this week, or perhaps more likely next week. We’ll be in touch as soon as we know more. I won’t venture a guess in this e-mail as to the likelihood of the project continuing on; I will say only that it is entirely possible that all of you will be asked back for the project. We hope that, if asked back, you will return to the project. That said, we understand if you need to begin to explore other opportunities. Please just keep us in the loop.
Also, I just received additional feedback from Dickstein on the review. They have thus far been very pleased to work with all of you remaining from the Lex team, mentioning and complimenting each and every one of the 7 of you by name.
As a thank you for your great work on the project (which I know may have times been stressful), I was able to get approved a $300 bonus from Lexolution for each of you. It will appear in a paycheck next week.
Please feel free to contact me with any comments, questions, or concerns.
Best regards,
Nathan
-----------------------------------------------------
From: Nathan Khalil
Sent: Monday, April 13, 2009 4:03 PM
To: Nathan Khalil
Subject: RE: Dickstein - Project/Schedule Update
Hello Everyone,
Unfortunately, we still do not have anything specific report. I am, however, still expecting at least partially good news. I expect to know more tomorrow. Thank you for your patience.
Please feel free to contact me with any comments or questions.
-----------------------------------------------------------
From: Nathan Khalil
Sent: Tuesday, April 14, 2009 12:26 PM
To: Nathan Khalil
Subject: RE: Dickstein - Project/Schedule Update
Hello again everyone,
We are told that we may get an update on Friday. As we await word, it is absolutely fine (perhaps in most cases preferable) to leave remaining any things you left at your work station, since it is entirely possible that you will resume work on the project in the near future. But if any of you has left anything that you need urgently, please let me know, and we will make appropriate arrangements. Thanks.
Best regards,
Nathan
-------------------------------------------------------------
From: Nathan Khalil
Sent: Friday, April 17, 2009 1:55 PM
To: Nathan Khalil
Subject: RE: Dickstein - Project/Schedule Update
Hi Everyone,
Sorry, it appears that we are still in limbo. We just got an update from Dickstein. They have informed us that, as they await to see how the situation develops (and with at least part of the team over there very busy next week), there will be no need for our team on the project again next week, but the need could re-arise after that.
So we will continue to wait and keep you apprised of any developments.
Thank you for your patience, and apologies for the uncertainty! Alas, it’s the nature of the beast.
As mentioned before, we understand if you need to explore other opportunities. Please just keep us in the loop. Also, please let me know if you would like to pick up any belongings from your workstation. There is no need to do so since we are still in limbo, but please let me know if you would like to make arrangements to pick anything up at this time.
Have a good weekend.
Best regards,
Nathan
---------------------------------------------------------------
From: "Nathan Khalil"
Date: Fri, 24 Apr 2009 19:40:28 -0400
To: Nathan Khalil
Subject: RE: Dickstein - Project/Schedule Update
Hi Everyone,
Unfortunately, we are still in limbo. We were in touch with Dickstein today. They continue to evaluate the situation, and hope and expect to have an update for us next week. It remains the case that a need for the team could re-arise in the near future. Apologies for the continued uncertainty. Ditto to my previous e-mail below: please let me know if you would like to make arrangements to retrieve any personal items at this time. Also ditto to my previous e-mails: we understand if you explore and pursue other opportunities. Please do just let us know if you secure another position and/or if you reach a crossroads.
Also, please remember that the information you have learned about the substance of the case and about its status is extremely sensitive and confidential. Please remember that you are bound by confidentially not to disclose this information to anyone (including friends, family, and potential employers). Thank you.
As always, please feel free to contact me.
Have a good weekend.
Best regards,
Nathan Khalil
--------------------------------------------------------
From: Nathan Khalil
Date: Fri, May 1, 2009 at 3:58 PM
Subject: RE: Dickstein - Project/Schedule Update
To: Nathan Khalil
Hi Everyone,
We just heard from Dickstein. Unfortunately, we remain in limbo. Alas, such is the world of litigation and contract work. They hope to have a better sense next week. I will be sure to get in touch as soon as we know more. Thanks.
Have a good weekend.
Best regards,
Nathan
---------------------------------------------------------
From: Nathan Khalil
Date: Fri, May 8, 2009 at 6:14 PM
Subject: RE: Dickstein - Project/Schedule Update
To: Nathan Khalil
Hi Everyone,
We heard from Dickstein today. Sorry, we remain in limbo. For what it’s worth, the project resuming remains a real possibility. Have a good weekend.
Best regards,
Nathan
This was the last anyone heard of the project. It was staffed by both Lexolution and Providus. I guess the Providus people were told immediately that the project was over. I hope you enjoyed the $300 bonus.
What else is amazing is that earlier that week, there was a "meeting" with the associates, partner and K attorneys and the partner estimated the work would last until or through July.
If you think it is bad now, just way until nasty Nora "Plesent" arrives and sets up her ramshackle chicken coop similar to the one on East 40th Street in New York.
Markup Scam
Hi Tom:
Did you see the article that Professor Lester Brickman wrote in Forbes Magazine that highlighted the enormous markup that plaintiff lawyers are using of about $35 to $40 per hour paid to the contract lawyers which is then billed out at $300 and up per hour as a scam in class action lawsuits.
Check it out at:
http://www.forbes.com/2009/07/23/tort-lawyers-class-action-opinions-contributors-lester-brickman.html
Did you see the article that Professor Lester Brickman wrote in Forbes Magazine that highlighted the enormous markup that plaintiff lawyers are using of about $35 to $40 per hour paid to the contract lawyers which is then billed out at $300 and up per hour as a scam in class action lawsuits.
Check it out at:
http://www.forbes.com/2009/07/23/tort-lawyers-class-action-opinions-contributors-lester-brickman.html
Chủ Nhật, 26 tháng 7, 2009
Former state judge Thomas J. Spargo of Albany County is set for a federal criminal trial on Aug. 24 after a jurist upheld attempted bribery and extortion charges against him.
Judge upholds Spargo charges
Federal jurist refuses to dismiss attempted
bribery, extortion case; will two lawyers testify?
By BRENDAN J. LYONS, Senior writer, Times Union
First published: Sunday, July 26, 2009
LINK
ALBANY -- A judge has upheld the federal criminal charges against former state Supreme Court Justice Thomas J. Spargo, who was indicted in December on charges of attempted bribery and attempted extortion.
U.S. District Court Judge Gary L. Sharpe ruled from the bench in a pre-trial hearing last week that the indictment was sufficient and the case will move forward to trial.
The criminal case is built on allegations that Spargo, now in private practice, had in 2003 attempted to extort $10,000 for his legal defense fund from attorneys, including Bruce Blatchly, an Ulster County lawyer who had about 12 cases pending before Spargo. The fund was set up to defray Spargo's $140,000 legal bills from a years-long battle with the state Commission on Judicial Conduct.
Spargo, 65, an East Berne attorney, has pleaded not guilty. He is represented by Troy attorney E. Stewart Jones.
The state judicial conduct panel concluded three years ago Spargo attempted to extort money from Blatchly. The panel ruled Spargo be removed from the bench and the Court of Appeals later affirmed the decision.
During last week's pre-trial hearing attorneys for the government and defense addressed whether two attorneys close to Spargo, Sanford Rosenblum and Catherine Doyle, an Albany Surrogate's Court judge, will testify at Spargo's trial.
Rosenblum has invoked his Fifth Amendment right against self-incrimination and declined to cooperate with prosecutors. He did not testify before a grand jury. Spargo's attorneys want Rosenblum to receive immunity from prosecution so that he will testify at trial. He has information that could be ''exculpatory'' to Spargo in the case, they said.
Doyle obtained an attorney after being confronted by FBI agents during the investigation of Spargo and later testified in front of the grand jury that indicted him. She did not invoke a Fifth Amendment right.
Federal prosecutors said Doyle was not a target of their investigation but that they considered her a ''co-conspirator.'' Her role as a witness at a 2003 luncheon where several attorneys were allegedly solicited for Spargo's legal defense fund is at the heart of their interest in Doyle, said M. Kendall Day, a trial attorney with the Justice Department's Public Integrity Section in Washington, D.C.
''Both she and Mr. Rosenblum tell a version of events that is inconsistent with the other evidence,'' Day told the judge. ''What else is she doing at this lunch where they're coming to talk about raising money ...''
Prosecutors believe Doyle's involvement centered on the allegation an attorney solicited for a donation had a case pending before her, according to court records.
Spargo's trial is tentatively set to begin Aug. 24 in U.S. District Court in Albany.
Former New York State Supreme Court Justice Thomas J. Spargo Indicted for Attempted Extortion and Bribery
Dec 10th, 2008, www.BackgroundNow.com Staff.
LINK
A former Supreme Court Justice of the Third Judicial Circuit of the State of New York was charged today with attempted extortion and federal program bribery, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division announced. Thomas J. Spargo, 65 was charged in an indictment returned today by a federal grand jury in the Northern District of New York.
According to the indictment, while Spargo was a state Supreme Court Justice in 2003, he allegedly solicited $10,000 from an Ulster County, N.Y., attorney who had cases pending before the judge. The indictment further charges that Spargo solicited the money by causing the attorney to fear that Spargo would use his official acts and influence to harm the attorney if he was not paid and, conversely, to help the attorney if he was paid.
The case is being prosecuted by Senior Trial Attorney Richard C. Pilger and Trial Attorney M. Kendall Day of the Criminal Division’s Public Integrity Section, headed by William M. Welch II, Chief. The case was investigated by the FBI – Albany Division.
An indictment is merely a charge, and defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt.
Posted in: Background Check.
Commerical Driver's Licenses and DWAI/DWI/DUI
Many CDL holders don't realize the devastating consequences to their future that a DWI/DWAI/DUI in any state can bring. The amount of BAC necessary to trigger a CDL DWAI while operating a commercial vehicle is only .04.
Here are five things CDL holders charged with any drunk driving charges in New York State must know.
1. DWI vs. DWAI conviction/disposition: If a CDL holder is found not guilty of misdemeanor Driving While Intoxicated (DWI) and is convicted of non-criminal Driving While Ability Impaired (DWAI), a traffic infraction, You will still lose your commercial driving privileges for one year whether a DWI or DWAI.
In addition, all it takes is a .04 BAC to be found guilty of a CDL – DWAI, if you are operating a commercial vehicle. That level of BAC (.04) would not be of any affect to your license if you were operating a regular (non commercial) vehicle.
This is true even though this CDL DWAI and DWAI (non commercial vehicle) are traffic infractions.
2. Hardship License/Conditional License: The Court may still issue a hardship privilege but it cannot be used with your CDL. The DMV can also issue a pre-conviction conditional license (PCCL), usually thirty days after the suspension pending prosecution, but this will also not allow commercial privileges.
3. A CDL holder convicted of a DWI or DWAI offense you can obtain a limited-use license with non-commercial privileges. Only if eligible for a pre-conviction conditional license (pre-trial) or a conditional license (post-trial) which require eligibility for enrollment in the (DDP) drinking driver program.
4. CDL Holder and revocation minimum periods for DWI and DWAI.
Commercial driving privileges shall be revoked for a minimum one-year if the CDL holder commits a major traffic offense (MTO):
Conviction for an alcohol (DWI/DWAI) or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
5. Not to scare you but repeat offenders face lifetime CDL revocation.
A CDL holder with commercial driving privileges will be permanently revoked if the CDL holder commits one of the following MTOs:
Refusal to submit to a chemical test while operating any motor vehicle, personal or commercial;
Conviction for leaving the scene of either a property damage or personal injury accident without reporting, while operating any motor vehicle, personal or commercial;
Conviction for an alcohol or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
Conviction for a felony committed within or outside of NYS involving the use of any motor vehicle, personal or commercial; or
Conviction for operating a Commercial Motor Vehicle while his or her CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV, or conviction for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.
and the CDL holder has previously:
Refused a chemical test while operating any motor vehicle, personal or commercial, or;
Was convicted for an MTO while operating any motor vehicle, personal or commercial; or,
Was convicted of leaving the scene of either a property damage or personal injury accident without reporting;
Been convicted of an alcohol related operating offense;
Been convicted of committing a felony involving the use of any motor vehicle; or
Operated a CMV while CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV or if convicted for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.
You can get additional information on this web site, which includes forms for downloading, at: www.nysdmv.com.
Please Note: The CDL holder’s lifetime revocation can be lifted by the DMV after a period of 10 years has passed. The DMV commissioner will require that the driver show proof of rehabilitation through completed drug/alcohol treatment, a certificate of relief from disabilities from the Court of last conviction, and a clean driving record with no further alcohol/drug related charges including test refusals.
Here are five things CDL holders charged with any drunk driving charges in New York State must know.
1. DWI vs. DWAI conviction/disposition: If a CDL holder is found not guilty of misdemeanor Driving While Intoxicated (DWI) and is convicted of non-criminal Driving While Ability Impaired (DWAI), a traffic infraction, You will still lose your commercial driving privileges for one year whether a DWI or DWAI.
In addition, all it takes is a .04 BAC to be found guilty of a CDL – DWAI, if you are operating a commercial vehicle. That level of BAC (.04) would not be of any affect to your license if you were operating a regular (non commercial) vehicle.
This is true even though this CDL DWAI and DWAI (non commercial vehicle) are traffic infractions.
2. Hardship License/Conditional License: The Court may still issue a hardship privilege but it cannot be used with your CDL. The DMV can also issue a pre-conviction conditional license (PCCL), usually thirty days after the suspension pending prosecution, but this will also not allow commercial privileges.
3. A CDL holder convicted of a DWI or DWAI offense you can obtain a limited-use license with non-commercial privileges. Only if eligible for a pre-conviction conditional license (pre-trial) or a conditional license (post-trial) which require eligibility for enrollment in the (DDP) drinking driver program.
4. CDL Holder and revocation minimum periods for DWI and DWAI.
Commercial driving privileges shall be revoked for a minimum one-year if the CDL holder commits a major traffic offense (MTO):
Conviction for an alcohol (DWI/DWAI) or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
5. Not to scare you but repeat offenders face lifetime CDL revocation.
A CDL holder with commercial driving privileges will be permanently revoked if the CDL holder commits one of the following MTOs:
Refusal to submit to a chemical test while operating any motor vehicle, personal or commercial;
Conviction for leaving the scene of either a property damage or personal injury accident without reporting, while operating any motor vehicle, personal or commercial;
Conviction for an alcohol or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
Conviction for a felony committed within or outside of NYS involving the use of any motor vehicle, personal or commercial; or
Conviction for operating a Commercial Motor Vehicle while his or her CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV, or conviction for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.
and the CDL holder has previously:
Refused a chemical test while operating any motor vehicle, personal or commercial, or;
Was convicted for an MTO while operating any motor vehicle, personal or commercial; or,
Was convicted of leaving the scene of either a property damage or personal injury accident without reporting;
Been convicted of an alcohol related operating offense;
Been convicted of committing a felony involving the use of any motor vehicle; or
Operated a CMV while CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV or if convicted for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.
You can get additional information on this web site, which includes forms for downloading, at: www.nysdmv.com.
Please Note: The CDL holder’s lifetime revocation can be lifted by the DMV after a period of 10 years has passed. The DMV commissioner will require that the driver show proof of rehabilitation through completed drug/alcohol treatment, a certificate of relief from disabilities from the Court of last conviction, and a clean driving record with no further alcohol/drug related charges including test refusals.
Thứ Bảy, 25 tháng 7, 2009
Mayor Scammarano
Hey Tom, the mayor of Hoboken, Peter "Scam-arrano," who was arrested today and charged with 5 counts of accepting bribes is a 2002 Seton Hall grad.
Hilarious! He learned fraud and corruption at the knee of master scammer Pat Hobbs, known as Seton Hall's infamous "Valvoline Dean" for his oleaginous, used car salesman persona and shameless molestation of salary/employment data. Scammarao (the Hoboken mayor) even had a Traffic Court Clerkship under his belt!
Watch a few YouTube videos of Cammarano, and right away you'll all know the type: the "gunners" who raised their hand for every case, who fellated the socially inept dork professors and fed their sick egos, the kind of people you always wanted to punch right in the fucking teeth. Have fun in Federal pound-me-up-the ass prison, Scamaranno! Maybe you can help Bluebook briefs for the other sorry cons trying to litigate their way out of stir.
How much you wanna bet he blames his bribe taking as an attempt to pay off massive law school debt? He'll go down hard, though. Unlike Hobbs, who has the criminal enablers at the ABA and NALP stooges covering his tracks, this doltish dork will be hung out to dry all by himself.
This kid should've just followed the other Seton Hall losers on to the document review floor at Barasso and been happy with the $29 an hour shitrate. Document review would be a good prep course for prison life: inedible food, petty and randomly enforced rules, favoritism, ass kissing, and extreme stretches of soul-crushing boredom. Bet the Valvoline Dean is boiling right now at seeing one of Seton Hall's few "rising stars" crash to earth in a flaming wreck! One less "success story" to add to the glossy admissions brochure!
Here are some choice excerpts from the FBI wiretap of Camarrano:
"Defendant Cammarano then stated “this is the way Mr. Schaffer and I both see the world through the same lens, right. In this election, hopefully, we, we, we, you know, we get to the point where I’m sworn in on July 1st, and we’re breaking down the world into three categories at that point. There’s the people who were with us, and that’s you guys. There’s the people who climbed on board in the runoff. They can get in line. . . And then there are the people who were against us the whole way. They get ground . . . They get ground into powder.”
Wow. In true Seton Hall fashion, Cammarano is not only a shiftless crook but a complete mental retard. The undercover agent (a corrupt rabbi) offering the bribes was already under FBI investigation via a deferred prosecution agreement, as a quick Google search would have revealed. And here is Scamarrano taking envelopes full of cash in a diner parking lot and offering quid pro quo on tape to a man who peddled other people's kidneys for profit! This is bush league even for the rancid, festering sewer that is NJ law and politics. Maybe Scamaraano was too busy Bluebooking toilet law review articles and studying Rule of Perpetuites puzzles to catch a few episodes of the Sopranos. This wanna-be gangsta assclown didn't last 30 days in office. Besides that, he had already lied about an out-of-wedlock child from some chick he knocked up at age 18 and had to lie & cover his ass during the campaign. Typical Hoboken hair-gel moron. He better sing like a canary to the Feds or his backside is gonna be thumping like a bass tube at Bar One!
BTW, I believe one of the partners at the "election law" firm that Camaranno worked at is an adjunct at Seton Hall. There's no doubt these "biglaw wanna-be's" at his former boiler room joke of a "firm" will have some explaining to do as well. This kid won the election under suspicious circumstances that involved "missing boxes" of absentee ballots that mysteriously popped up a few days after the runoff election. Voter fraud, anyone? Hopefully that cesspool of a school will somehow be dragged into this mess and embarrassed/humiliated and exposed for the corrupt diploma-mill dump that they are. We cannot rest until the Valvoline Deans of the world do the perp walk right beside the shiftless satan-children they have spawned. The one bright side is that Scamarrano will make more money pressing license plates in the prison foundry than the typcial 'Hall grad ever will as an insurance defender or doc review coder in NYC!
The DWI Twilight Zone
I am a big fan of the old twilight zone so I was excited to see a new version of the series on TV the other day. The old series with Rod Serling (Rod used to teach at Ithaca College and his remains are in Interlaken) was well written and made you think. I love the idea or concept of context, whether taking things out of context or having a juxtaposition of events, in other words I do like clever surprises. Rod Serling would be the narrator/interpreter/guide to this place of confusion. The series would teach lessons about life and judging things too quickly. Good was bad and bad was good depending upon your frame of reference. As Rod used to say, "there's the signpost up ahead, the next stop the twilight zone."
Much like those poor unfortunate people moving through confusing patterns on TV's twilight zone, I often tell my clients that they can only see their case (their DWI)in a vacuum. I have an advantage (much like Rod) because over the years I have seen a large spectrum of DWI cases. I have taken many people on the DWI journey, from beginning to end, and as a result of this I can give them a bigger picture. I can view and compare their police report, their driving pattern, and their behavior pattern in relation to current standards for probable cause and current legal standards for intoxication and impairment. I say "current" because the law is dynamic. It is not set in stone. Cases are challenging the boundaries of law in New York as well as other jurisdictions. What is true today may not be true next year or next week.
One thing is always a certainty, within the array of facts are the good facts, the bad facts, and the ugly facts. I can often live with (work with) the good and the bad facts. For instance, you exited your car with no problems, understood directions, handed over your driver's license and not your credit card, or you failed to use your turn signal, or you were speeding. It's those ugly facts that get me, you fell down and couldn't get back up, or you confessed your guilt, and then wrote it down and signed it (yes, police can sometimes get people to do this).
Some cases clearly fall into the more good than ugly fact category, some clearly fall into the bad and ugly fact category, but the vast majority fall into the twilight zone. It is not purely black, not purely white, but a hazy gray. It is within this area that a DWI defense attorney must look at the details carefully. Strengths and weaknesses sometimes grow from the same vine (fact pattern).
As a DWI defense lawyer I recognize that my clients do not appreciate surprises so I try hard to prepare them for all potential scenarios. The problem is that No one (yes, no one I know) can completely predict the future or within the DWI arena, how a jury will judge a case, which is really a set a facts viewed through specific perspectives and filters. Any attorney or other professional guaranteeing a specific result should be avoided. My big disclaimer, I make no guarantees of outcomes, it is impossible, other than I will do my best.
BUT that said, when you work within a certain specific area long enough and hard enough you can predict outcomes with a higher degree of accuracy. You know and understand the possibilities and probabilities. Much like other professionals who buy and sell properties, stocks, and bonds. These calculated and weighted opinions while not always correct, are enough to make important decisions by and through.
I like to tell people you can be your own doctor (self diagnose and treat), you can be your own CPA (calculate and assess your own taxes), and even your own lawyer (although most judges will usually not allow this with those facing criminal charges without substantial proof of your education, ability, experience, and background) but you will usually have a much better outcome with someone who knows what they are doing and does it professionally. I have seen people as a doctor misdiagnose their conditions and hurt themselves through using improper treatment. I have also seen people as an attorney who ask their friends and family for legal advice. It can get ugly watching them squirm in Court. As the saying goes, those that act as their own lawyer have a fool for a client. The smartest lawyers do not try to be their own lawyer.
A good lawyer will do a cost benefit analysis that takes into consideration the client's goals, their current positions, and their tolerances. Options are the most important part of my discussion with clients, and viewing those options while taking into account the totality of "their" situation. Answers are not always simple or easy, and that is why having someone on your side with a larger (big picture) overview can often make the difference between being stuck in the DWI twilight zone or moving past it.
Much like those poor unfortunate people moving through confusing patterns on TV's twilight zone, I often tell my clients that they can only see their case (their DWI)in a vacuum. I have an advantage (much like Rod) because over the years I have seen a large spectrum of DWI cases. I have taken many people on the DWI journey, from beginning to end, and as a result of this I can give them a bigger picture. I can view and compare their police report, their driving pattern, and their behavior pattern in relation to current standards for probable cause and current legal standards for intoxication and impairment. I say "current" because the law is dynamic. It is not set in stone. Cases are challenging the boundaries of law in New York as well as other jurisdictions. What is true today may not be true next year or next week.
One thing is always a certainty, within the array of facts are the good facts, the bad facts, and the ugly facts. I can often live with (work with) the good and the bad facts. For instance, you exited your car with no problems, understood directions, handed over your driver's license and not your credit card, or you failed to use your turn signal, or you were speeding. It's those ugly facts that get me, you fell down and couldn't get back up, or you confessed your guilt, and then wrote it down and signed it (yes, police can sometimes get people to do this).
Some cases clearly fall into the more good than ugly fact category, some clearly fall into the bad and ugly fact category, but the vast majority fall into the twilight zone. It is not purely black, not purely white, but a hazy gray. It is within this area that a DWI defense attorney must look at the details carefully. Strengths and weaknesses sometimes grow from the same vine (fact pattern).
As a DWI defense lawyer I recognize that my clients do not appreciate surprises so I try hard to prepare them for all potential scenarios. The problem is that No one (yes, no one I know) can completely predict the future or within the DWI arena, how a jury will judge a case, which is really a set a facts viewed through specific perspectives and filters. Any attorney or other professional guaranteeing a specific result should be avoided. My big disclaimer, I make no guarantees of outcomes, it is impossible, other than I will do my best.
BUT that said, when you work within a certain specific area long enough and hard enough you can predict outcomes with a higher degree of accuracy. You know and understand the possibilities and probabilities. Much like other professionals who buy and sell properties, stocks, and bonds. These calculated and weighted opinions while not always correct, are enough to make important decisions by and through.
I like to tell people you can be your own doctor (self diagnose and treat), you can be your own CPA (calculate and assess your own taxes), and even your own lawyer (although most judges will usually not allow this with those facing criminal charges without substantial proof of your education, ability, experience, and background) but you will usually have a much better outcome with someone who knows what they are doing and does it professionally. I have seen people as a doctor misdiagnose their conditions and hurt themselves through using improper treatment. I have also seen people as an attorney who ask their friends and family for legal advice. It can get ugly watching them squirm in Court. As the saying goes, those that act as their own lawyer have a fool for a client. The smartest lawyers do not try to be their own lawyer.
A good lawyer will do a cost benefit analysis that takes into consideration the client's goals, their current positions, and their tolerances. Options are the most important part of my discussion with clients, and viewing those options while taking into account the totality of "their" situation. Answers are not always simple or easy, and that is why having someone on your side with a larger (big picture) overview can often make the difference between being stuck in the DWI twilight zone or moving past it.
Thứ Sáu, 24 tháng 7, 2009
As If California Didn't Have Enough Problems.....
Now this. I just received an obnoxious email from Lex-Pollution announcing that "Lexolution Co-Founder Nora Plesent is Now the Managing Partner of Lexolution's Los Angeles Office"
It says: "Lexolution is thrilled to announce that Nora Plesent, a leader in the temporary legal staffing industry for more than a decade, has permanently taken up residence in Lexolution's Los Angeles office. Nora helped found Lexolution in 2001 and has been an instrumental force in Lexolution's rise as a leading provider of temporary attorneys and paralegals in the New York, Washington, DC, Los Angeles and San Francisco Bay Area metropolitan regions. Lexolution has extensive experience staffing experienced attorneys in virtually every area of legal practice and managing large electronic discovery projects."
But then the key words come in: "We strategize with law firms and corporations about ways to significantly reduce costs through the use of our temporary attorneys."
Now, note this does not say that Lexolution does anything to present more qualified people, or that it is doing anything in the interests of its temps. No, it says that they "strategize" with the enemy, the law firms and corporations, to squeeze all the juice out of the lemons (lemmings) (both in terms of taking their best years and paying them nothing for their time).
Thanks Lexolution, for bringing your wrecking ball to the Los Angeles legal market after helping to screw up New York.
Thứ Năm, 23 tháng 7, 2009
DRL 177 Repealed and Replaced By DRL 255
Domestic Relations Law § 177 has been repealed, and replaced by Domestic Relations Law § 255, which was signed into law on July 11, 2009. It becomes effective 90 days after the date it was signed into law and applies to all actions in which judgment has not been entered as of the effective date. (See Laws of 2009, Ch 143)
Domestic Relations Law § 255, subdivision 1 provides that prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, the court must ensure that both parties have been notified, at such time and by such means as the court determines, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. In the case of a defaulting defendant, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant. (Go to http://www.nysdivorce.com to download a suggested Notice of Possible Loss of Eligibility For Health Care Coverage)
Domestic Relations Law § 255, subdivision 2 provides that if the parties have entered into a stipulation of settlement or agreement, on or after the effective date of Section 255, resolving all of the issues between the parties, the stipulation of settlement or agreement must contain a provision relating to the health care coverage of each party. The provision must either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements subdivision 2 may not be waived by either party or counsel. In the event that it is not complied with, the court must require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage. (Go to http://www.nysdivorce.com to download a suggested Agreement-Stipulation Provision for Compliance with Domestic Relations Law § 255)
Domestic Relations Law § 255, subdivision 1 provides that prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, the court must ensure that both parties have been notified, at such time and by such means as the court determines, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. In the case of a defaulting defendant, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant. (Go to http://www.nysdivorce.com to download a suggested Notice of Possible Loss of Eligibility For Health Care Coverage)
Domestic Relations Law § 255, subdivision 2 provides that if the parties have entered into a stipulation of settlement or agreement, on or after the effective date of Section 255, resolving all of the issues between the parties, the stipulation of settlement or agreement must contain a provision relating to the health care coverage of each party. The provision must either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements subdivision 2 may not be waived by either party or counsel. In the event that it is not complied with, the court must require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage. (Go to http://www.nysdivorce.com to download a suggested Agreement-Stipulation Provision for Compliance with Domestic Relations Law § 255)
Automatic Restraining Orders
Domestic Relations Law 236 [B] [2] was amended, by Laws of 2009, Chapter 72, § 1, effective September 1, 2009, to add a subdivision b, which provides for automatic restraining orders that come into effect upon the commencement of a matrimonial action and bind both parties.
Domestic Relations Law § 236 (B) (2) (b) provides that the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in subdivision (b). This paragraph places upon the plaintiff a duty to serve upon the defendant automatic orders which bind both parties. The automatic orders are binding upon the plaintiff upon the commencement of the action by the filing of the summons or summons and complaint. They are binding upon the defendant upon service of the Summons or ‘Summons and Complaint. The automatic orders remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court, upon motion of either of the parties, or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. (Go to http://www.nysdivorce.com to download a suggested form notice of automatic restraining orders)
Domestic Relations Law § 236 (B) (2) (b) provides that the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in subdivision (b). This paragraph places upon the plaintiff a duty to serve upon the defendant automatic orders which bind both parties. The automatic orders are binding upon the plaintiff upon the commencement of the action by the filing of the summons or summons and complaint. They are binding upon the defendant upon service of the Summons or ‘Summons and Complaint. The automatic orders remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court, upon motion of either of the parties, or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. (Go to http://www.nysdivorce.com to download a suggested form notice of automatic restraining orders)
Provider EUOs
David M. Gottlieb, Esq. has previously covered this issue at No-Fault Paradise, but it seems to me that it's worth some additional attention.
On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled "Examinations Under Oath of Assignees". The short question/answer summary is as follows:
"Question:
May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?
Answer:
No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath."
As the Insurance Department noted, "nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice." The Department therefore reasoned that there is, in fact, no allowance for the insurer to request the production of a specific person at an EUO. However, the Department opined that, if the provider does produce someone for the EUO, and that person is unable to provide the information sought, "the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the items necessary to verify the claim." (Internal quotation marks omitted).
In his post, Mr. Gottlieb asked what is presumably the most important and immediate question for practitioners: "Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?"
I'm not sure that there's an easy answer here, but it seems to me that if an insurer requests that a specific person (presumably, a professional shareholder) appear at an EUO, and only requests the appearance of that person, the request is invalid. It would seem that it would be invalid, ab initio, for an insurer to request something that it is simply not entitled to. To the extent that a provider could choose to produce a different person in response to such a request, the provider would be under no duty to do so given the specific nature of the request. As such, non-attendance (by anyone from the provider) at such a requested EUO should not constitute a failure to provide verification or to otherwise cooperate, as the insurer had no authority to make such a request in the first place.
It therefore appears to me that requesting that a provider produce a specific person at an EUO is no more valid than an insurer requesting an EUO at all under the Old Regulations (which contained no specific provision whatsoever allowing for EUOs as a form of verification). See King's Med. Supply v. Progressive Ins., 3 Misc.3d 126(A) (App. Term, 2d Dep't, 2004), holding that "[s]ince there was no provision authorizing such a procedure, defendant's request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim."
On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled "Examinations Under Oath of Assignees". The short question/answer summary is as follows:
"Question:
May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?
Answer:
No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath."
As the Insurance Department noted, "nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice." The Department therefore reasoned that there is, in fact, no allowance for the insurer to request the production of a specific person at an EUO. However, the Department opined that, if the provider does produce someone for the EUO, and that person is unable to provide the information sought, "the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the items necessary to verify the claim." (Internal quotation marks omitted).
In his post, Mr. Gottlieb asked what is presumably the most important and immediate question for practitioners: "Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?"
I'm not sure that there's an easy answer here, but it seems to me that if an insurer requests that a specific person (presumably, a professional shareholder) appear at an EUO, and only requests the appearance of that person, the request is invalid. It would seem that it would be invalid, ab initio, for an insurer to request something that it is simply not entitled to. To the extent that a provider could choose to produce a different person in response to such a request, the provider would be under no duty to do so given the specific nature of the request. As such, non-attendance (by anyone from the provider) at such a requested EUO should not constitute a failure to provide verification or to otherwise cooperate, as the insurer had no authority to make such a request in the first place.
It therefore appears to me that requesting that a provider produce a specific person at an EUO is no more valid than an insurer requesting an EUO at all under the Old Regulations (which contained no specific provision whatsoever allowing for EUOs as a form of verification). See King's Med. Supply v. Progressive Ins., 3 Misc.3d 126(A) (App. Term, 2d Dep't, 2004), holding that "[s]ince there was no provision authorizing such a procedure, defendant's request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim."
Philadelphia Market Shriveling Up & Dying
35 people laid off at Dechert's 2 Logan location in relevance two weeks ago.
5 people laid off in privilege, as above
5 more people laid off in privilege last week.
Some people had been there as long as 4.5 years. Some say scores were settled.
Staff attorney hours also seem to have been cut back among many as well.
This is the pharmaceutical litigation site.
Project is believed to be engaged in end-stage activities.
Thứ Tư, 22 tháng 7, 2009
The Axiom Legal Identity Crisis Continues
"After the second round of exposure in 'Bullshit Time' below, Axiom changed their bogus website - for the third time in a month!
After ditching 'The road less lawyered' and 'Lawyers you like', they now change to the more mundane but no less fart-inducing 'The Big idea in law.'
They then say how they are 'inspired by a big idea: to be the first real alternative to the traditional law firm'. They cut out a lot of the other B.S. (but still some in there, like how they help lawyers exercise 'self-determination', because if they cut this it would be a blank orange page like an empty table at McDonalds).
I have actually gone from throwing up at Axiom to being worried about them. Their obsession with their image on this website and ability to change their whole shtick overnight is scary!
Earth to Axiom: you still don't have it right. You are not an alternative to a law firm, except to the extent that checking into a mental hospital is an alternative to working in a law office. By your own admission, you just send temps to in-house jobs, i.e., you're a frigging/temp placement agency like all the others."
Thứ Ba, 21 tháng 7, 2009
An Addition to the Blogroll
I've been meaning to add it in for a while, but now that I finally got around to updating the layout of the blog (which shouldn't look much different to the reader, hopefully), I've added a link to No Fault Law - A Defense Attorney's Perspective. It's worth taking a look at.
The ABA's Fake "Legal Rebels" Campaign
Let the institutional denial and counter-propaganda campaign begin.
As one commentor so aptly put it, "the REAL online rebel movement among lawyers online is the movement to expose the law school scam and how the legal establishment such as the bar associations are enabling the law school industry to lure hundreds of thousands of law students into 6 figure debt when there is a huge oversupply of lawyers already."
For years, the legal elites have benefited from this drastic oversupply and the cheap labor generated by these nasty unsanitary debt repayment mills. But now, however, even a shitty benefitless secretarial wage is too much for them to handle. Hence, this year we have seen the devastation unleashed by the ABA's opening of the floodgates to a massive wave of foreign outsourcing.
http://www.legalrebels.com
Thứ Hai, 20 tháng 7, 2009
DWI: A Crime of Opinion
I just returned from Boston, specifically the summer session of the NCDD (National College of DUI Defense) held at Harvard Law School. It was an incredible learning experience to be amongst the authors of most of the prominent DUI Defense Books. These leading DUI trial lawyers shared openly and gave freely of their time.
There were lectures as well as interactive workshops where they (the masters of DUI Trial Practice) videotaped us doing cross examination of police, opening statements, closing arguments, etc. They critiqued our performances and gave great feedback. The speakers were some of the best I have seen or heard. From a Circuit Court Judge doing a presentation about how to understand Judges (he called it behind the curtain of Oz, as in the Wizard) to a twenty year veteran of the FBI crime labs. This Phd/lawyer/scientist spoke of all the problems with forensic lab testing (can anyone say Breathalyzer) and law enforcement's failure to often follow proper protocols. Everything was focused, and geared on DUI defense and practice.
One thing that stuck with me was something that I heard again and again, that DWI is a crime based purely upon Opinion. The opinion of police officers and the opinion of a machine are used to obtain a conviction. This opinion evidence is fraught with problems. The police subjectively give and grade performance on field sobriety exercises. Their is usually a police bias in the record. Every person pulled over has the odor of alcohol, slurred speech, glassy-bloodshot eyes, and an unsteady gait. The machine takes a "breath" sample and magically yields an "accurate" blood alcohol level. The BAC is often an invalid number hanging in space which has no relation to the true BAC at time of driving. In a nutshell, that is why we do what we do. Protect the rights (the ones that come from that grand old document called the Constitution) of those accused of the crime of DWI.
Anyway, Boston is over, on a negative note, it was very humid, but the food service at Harvard Law School was top notch. It is time to go back to the real day to day work and nuts and bolts of DWI defense, and of course enjoying a rather cool 2009 Ithaca summer.
There were lectures as well as interactive workshops where they (the masters of DUI Trial Practice) videotaped us doing cross examination of police, opening statements, closing arguments, etc. They critiqued our performances and gave great feedback. The speakers were some of the best I have seen or heard. From a Circuit Court Judge doing a presentation about how to understand Judges (he called it behind the curtain of Oz, as in the Wizard) to a twenty year veteran of the FBI crime labs. This Phd/lawyer/scientist spoke of all the problems with forensic lab testing (can anyone say Breathalyzer) and law enforcement's failure to often follow proper protocols. Everything was focused, and geared on DUI defense and practice.
One thing that stuck with me was something that I heard again and again, that DWI is a crime based purely upon Opinion. The opinion of police officers and the opinion of a machine are used to obtain a conviction. This opinion evidence is fraught with problems. The police subjectively give and grade performance on field sobriety exercises. Their is usually a police bias in the record. Every person pulled over has the odor of alcohol, slurred speech, glassy-bloodshot eyes, and an unsteady gait. The machine takes a "breath" sample and magically yields an "accurate" blood alcohol level. The BAC is often an invalid number hanging in space which has no relation to the true BAC at time of driving. In a nutshell, that is why we do what we do. Protect the rights (the ones that come from that grand old document called the Constitution) of those accused of the crime of DWI.
Anyway, Boston is over, on a negative note, it was very humid, but the food service at Harvard Law School was top notch. It is time to go back to the real day to day work and nuts and bolts of DWI defense, and of course enjoying a rather cool 2009 Ithaca summer.
Thứ Sáu, 17 tháng 7, 2009
Kirkland Drops The Shit Bomb On The Sheep
"On June 28th, an ad appeared on DC's Craigslist for unlicensed JD's for a 1-2 month high hour (10+/7days) document review project. Today they learned that Kirkland will be performing this work "in house." Aside from this obvious ploy to shitrate a large group of recent law grads they obviously thought NOTHING of stringing the 100+ lambs along for 3 weeks before dropping their shitbomb on them. Welcome to the late great world of document review."
P.S.- They probably outsourced a good chunk of the work to India as demonstrated by the Michelle Vega piece.
Peak Legal: "Go Find Your Own Health Insurance"
From: "Frank Barone"
Date: July 17, 2009 11:02:10 AM EDT
Subject: Medical Plan
We regret to inform you that effective September 1, 2009, The Peak Organization will no longer be offering the Empire BC/BS HMO Plan to temporary employees. Our enrollment in this plan no longer meets the minimum participation required by Empire BC/BS as shown below.
Letter from Empire BC/BS:
“This is to advise you (The Peak Organization) that your HMO healthcare plan contract is being terminated effective 09/01/2009.”
We apologize for any inconvenience this may cause and will make available on our web site information regarding Empire BC/BS NY individual medical plans within the next two weeks.
The dental plan does remain in place.
Thank you very much.
Thứ Năm, 16 tháng 7, 2009
Michelle Vega: Touro's Finest
Michelle Vega spent more than six years as a litigation associate at Kelley Drye & Warren in New York before leaving the firm to care for a sick relative. When Vega started looking for a job a year later, she wanted to take her skills in a new direction.
A friend at a legal staffing company told her about an opening that offered management experience outside the law firm environment, but required a one-year stint in India. Vega was immediately intrigued and asked the friend to submit her résumé. When outsourcing company Mindcrest Inc. offered Vega a senior manager job in May 2008, she accepted and moved her life to Pune, India, by month's end.
"I like to travel and have always been interested in the world outside New York," said the 35-year-old Brooklyn native, who is still living in Pune.
As a senior manager at Mindcrest, Vega oversees the work of about 450 employees through 25 direct reports. Her work ranges from researching briefs in support of motions to drafting discovery requests to responding to subpoenas.
Vega, who graduated from Touro College Jacob D. Fuchsberg Law Center, said she enjoys using her litigation knowledge to guide the young Indian attorneys who do the company's legal research, document review and contract management work. Training Indian employees often means putting things in context for them. For instance, she might have to explain the relative value of a building on Park Avenue in New York by comparing it to an upscale street in Mumbai, Vega said.
http://www.nylj.com/nylawyer/news/09/07/071609a.html
A friend at a legal staffing company told her about an opening that offered management experience outside the law firm environment, but required a one-year stint in India. Vega was immediately intrigued and asked the friend to submit her résumé. When outsourcing company Mindcrest Inc. offered Vega a senior manager job in May 2008, she accepted and moved her life to Pune, India, by month's end.
"I like to travel and have always been interested in the world outside New York," said the 35-year-old Brooklyn native, who is still living in Pune.
As a senior manager at Mindcrest, Vega oversees the work of about 450 employees through 25 direct reports. Her work ranges from researching briefs in support of motions to drafting discovery requests to responding to subpoenas.
Vega, who graduated from Touro College Jacob D. Fuchsberg Law Center, said she enjoys using her litigation knowledge to guide the young Indian attorneys who do the company's legal research, document review and contract management work. Training Indian employees often means putting things in context for them. For instance, she might have to explain the relative value of a building on Park Avenue in New York by comparing it to an upscale street in Mumbai, Vega said.
http://www.nylj.com/nylawyer/news/09/07/071609a.html
The Death of the Assignment of Benefits?
In 2007, the Court of Appeals reaffirmed the longstanding Appellate Division case law "that a carrier's failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies." Hospital for Joint Diseases v. Travelers Property Cas. Ins. Co., 9 N.Y.3d 312, 318 (2007). The Appellate Division had long held that this rule precluded defenses related to, inter alia, the assignment of benefits form. The Court of Appeals therefore held "that the failure by Travelers to seek verification of the assignment in a timely manner prevents the carrier from litigating the issue now." Id. at 319.
Left open was the question of whether proof of the assignment is a part of a no-fault plaintiff's prima facie case. Travelers contended before the Court of Appeals that proof of the assignment was, indeed, a necessary component of a plaintiff's proof. The Court avoided the issue by holding that, "[e]ven assuming that this is true, we conclude that an assignment form stating that the patient's signature is 'on file' satisfies that burden where the carrier does not timely take action to verify the existence of a valid assignment." Id. at 320.
The Appellate Term, 2d Dep't, has since taken the Hospital for Joint Diseases decision and run with it. In Westchester Neurodiagnostic, P.C. v. Allstate Ins. Co., decided last month, the App. Term held that "proof of the assignment of benefits form is not an element of plaintiff's prima facie case." ___ Misc.3d ___, 2009 NY Slip Op 51385(U) (App. Term, 2d Dep't, 2009). I believe this is the first time an appellate court has explicitly announced this rule.
This month, in Davydov v. Progressive Ins. Co., the Appellate Term dealt with the situation of an assignment form existing, but not actually naming the proper parties. ___ Misc.3d ___, 2009 NY Slip Op 29299 (App. Term, 2d Dep't, 2009). In that case, the assignee was misidentified as "Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS." Id. Nevertheless, citing to Hospital for Joint Diseases, and over a dissent by Justice Golia, the Appellate Term held that even this issue was waived.
I wouldn't be surprised if the carriers in Westchester Neurodiagnostic and Davydov try taking their arguments to the Appellate Division, but these decisions represent the current state of the law on assignments. It would thus appear now that, without having made verification requests, no assignment-related defense will hold any water. Indeed, in such situations, the assignment form should not even be subject to production through the discovery process, as discovery demands related to precluded defenses are palpably improper. See Midborough Acupuncture, P.C. v. State Farm Ins. Co., 21 Misc.3d 10, 12 (App. Term, 2d Dep't, 2008).
On the other hand, I have no question in my mind that many trial court judges will continue to consider the assignment a necessary part of a plaintiff's burden. Some judges still continue to hold that an assignor's signature on the assignment form must be authenticated in order for a plaintiff to make out its prima facie case, even though the Appellate Term has held otherwise for years. See A.B. Medical Services PLLC v. Prudential Property & Cas. Ins. Co., 7 Misc.3d 14 (App. Term, 2d Dep't, 2005). That being said, any judge reading this would necessarily be too well-informed to make such an error.
And, of course, many defense attorneys who know better still continue to make such frivolous arguments while feigning ignorance of the last decade of no-fault jurisprudence. I've had defense attorneys tell me, with a straight face, that Hospital for Joint Diseases doesn't preclude them from questioning the validity of the language of the assignment form for the first time at trial.
If anyone believes that, in the absence of relevant verification requests, any assignment-related defenses still survive, please feel free to share.
Left open was the question of whether proof of the assignment is a part of a no-fault plaintiff's prima facie case. Travelers contended before the Court of Appeals that proof of the assignment was, indeed, a necessary component of a plaintiff's proof. The Court avoided the issue by holding that, "[e]ven assuming that this is true, we conclude that an assignment form stating that the patient's signature is 'on file' satisfies that burden where the carrier does not timely take action to verify the existence of a valid assignment." Id. at 320.
The Appellate Term, 2d Dep't, has since taken the Hospital for Joint Diseases decision and run with it. In Westchester Neurodiagnostic, P.C. v. Allstate Ins. Co., decided last month, the App. Term held that "proof of the assignment of benefits form is not an element of plaintiff's prima facie case." ___ Misc.3d ___, 2009 NY Slip Op 51385(U) (App. Term, 2d Dep't, 2009). I believe this is the first time an appellate court has explicitly announced this rule.
This month, in Davydov v. Progressive Ins. Co., the Appellate Term dealt with the situation of an assignment form existing, but not actually naming the proper parties. ___ Misc.3d ___, 2009 NY Slip Op 29299 (App. Term, 2d Dep't, 2009). In that case, the assignee was misidentified as "Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS." Id. Nevertheless, citing to Hospital for Joint Diseases, and over a dissent by Justice Golia, the Appellate Term held that even this issue was waived.
I wouldn't be surprised if the carriers in Westchester Neurodiagnostic and Davydov try taking their arguments to the Appellate Division, but these decisions represent the current state of the law on assignments. It would thus appear now that, without having made verification requests, no assignment-related defense will hold any water. Indeed, in such situations, the assignment form should not even be subject to production through the discovery process, as discovery demands related to precluded defenses are palpably improper. See Midborough Acupuncture, P.C. v. State Farm Ins. Co., 21 Misc.3d 10, 12 (App. Term, 2d Dep't, 2008).
On the other hand, I have no question in my mind that many trial court judges will continue to consider the assignment a necessary part of a plaintiff's burden. Some judges still continue to hold that an assignor's signature on the assignment form must be authenticated in order for a plaintiff to make out its prima facie case, even though the Appellate Term has held otherwise for years. See A.B. Medical Services PLLC v. Prudential Property & Cas. Ins. Co., 7 Misc.3d 14 (App. Term, 2d Dep't, 2005). That being said, any judge reading this would necessarily be too well-informed to make such an error.
And, of course, many defense attorneys who know better still continue to make such frivolous arguments while feigning ignorance of the last decade of no-fault jurisprudence. I've had defense attorneys tell me, with a straight face, that Hospital for Joint Diseases doesn't preclude them from questioning the validity of the language of the assignment form for the first time at trial.
If anyone believes that, in the absence of relevant verification requests, any assignment-related defenses still survive, please feel free to share.
Thứ Ba, 14 tháng 7, 2009
Robert Freeman's 1993 Letter on Open Records For NY Court Administration and Public Administrator
Manhattan Surrogate Court Judge Renee R. Roth (Of Counsel to the lawfirm of McLaughlin and Stern) never had a court reporter or a tape recording of any of her court proceedings...except when I was in the courtroom. I always had a court reporter after I had heart failure in July, 2006, yet no one else ever seems concerned that the proceedings were never documented.
In 1993 an advisory opinion by Robert Freeman, Chair of the Committee on Open Government, was posted on the internet:
STATE OF NEW YORK
DEPARTMENT OF STATE
COMMITTEE ON OPEN GOVERNMENT
________________________________________
One Commerce Plaza May 18, 1993
99 Washington Ave.
Albany, New York 12231
(518) 474-2518
Fax (518) 474-1927
http://www.dos.state.ny.us/coog/coogwww.html
Mr. G. Allen Randolph
Ms. Jere Williamson
Columbia University in the City
of New York
Graduate School of Journalism
Journalism Building
New York, NY 10027
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, except as otherwise indicated.
Dear Mr. Randolph and Ms. Williamson:
As you are aware, I have received your letter of April 2.
In brief, according to your letter and the correspondence attached to it, you requested records from the Office of the New York County Public Administrator but received no response. Due to the failure to respond, you submitted an appeal to the Office of the New York City Corporation Counsel. However, you wrote that "some sectors believe the Public Administrator is a New York City agency", while others "believe it is under the auspices of the State of New York". You have asked where, in my view, an appeal should be filed, and you seek any additional input that I might provide.
In this regard, in an effort to assist you, I have engaged in telephone conversations involving New York City, New York State and Surrogate's Court officials. As you know, Public Administrators are appointed by the Surrogate in their respective counties, and their salaries are paid by New York City (see Surrogate's Court Procedure Act, §§1102, 1108). Further, §1110(1) of the Surrogate's Court Procedure Act states that:
"The City of New York shall be answerable for the faithful execution by the public
administrator of all the duties of his office and for the application by him of all moneys and property received by him and for all moneys and securities and the interest, earnings and dividends actually received by him or which he should have collected or received."
Nevertheless, a representative of the Office of Corporation Counsel expressed the opinion that the Office of Public Administrator is not a City agency, for the City government has no general authority to oversee the operations of the Public Administrator or compel the Public Administrator to carry out his or her duties.
Similarly, it was advised that Corporation Counsel has no jurisdiction over the Public Administrator concerning the implementation of the Freedom of Information Law. Having discussed the matter with an attorney for the Office of Court Administration, it was contended that the Office of Public Administrator is something of a hybrid, and that it is not an extension or an arm of that agency.
Based upon a review of the law and the discussions described earlier, in my opinion, the Office of Public Administrator is not clearly an agency of either New York City or New York State, but rather is sui generis, a unique entity unto itself. Moreover, I believe that it is an "agency" with an independent responsibility to give effect to the Freedom of Information Law.
The Freedom of Information Law applies to agency records, and §86(3) of that statute defines the term "agency" to include:
"any state or municipal department, board, bureau, division, commission, committee,
public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
In turn, §86(1) defines "judiciary" to mean:
"the courts of the state, including any municipal or district court, whether or not of record."
As such, the courts are not subject to the Freedom of Information Law. By means of analogy, however, I point out that it has been held that the Office of Court Administration is an "agency" required to comply with the Freedom of Information Law. The initial decision on the subject, which cited an advisory opinion prepared by this office, included the following discussion of the matter:
"The court must look to the intent of the legislature to determine whether the Office of Court Administration, in the exercise of a purely administrative and personnel function,is to be excluded from the applicable provisions of the Freedom of Information Law. Public Officers Law §84 states in part 'The people's right to know the process of governmental decisionmaking and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.'
"In view of the legislative purpose to promote open government, the court is inclined to construe narrowly any section that would tend to exclude offices of government from the law. Public Officers Law §86 specifically refer to courts when it defines 'Judiciary.' The legislature did not include the administrative arm of the court. The Office of Court Administration does not exercise a judicial function, conduct civil or criminal trials, or determine pre-trial motions. Respondent is not a 'court.'"
It is significant to note that respondent refers to several sections of the Judiciary
Law that regulate access to judicial records and allegedly perform a function similar to that of the Freedom of Information Law. None of the sections specified would address access to the information sought by petitioner pertaining to personnel and salaries exclusively.
"Accordingly, the court rejects respondent's contention that it is in all respects exempt from the provisions of the Freedom of Information Law." [Babigian v. Evans, 427 NYS 2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983); Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992 (1983)].
Like the Office of Court Administration, which administers the court system and is an agency subject to the Freedom of Information Law, the Office of Public Administrator, as its title suggests, performs administrative functions relative to Surrogates' Courts in New York City. Further, the information sought would not constitute court records or pertain to judicial proceedings; on the contrary, it pertains to records involving administrative functions.
Assuming that the Office of Public Administrator is an agency subject to the Freedom of Information Law, it would be required to carry out its duties in accordance with certain procedural rules and regulations. By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1) of the Law requires each agency to promulgate rules and regulations consistent with the Law and the Committee's regulations. The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
Section 1401.2(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests.
In addition, §1401.7 of the Committee's regulations provide in part that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefore and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer."
I point out, too, that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests and appeals. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business
days of the receipt of such appeal fully explain in writing to the person requesting
the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
In sum, as the head of an agency subject to the Freedom of Information Law, the Public Administrator is in my opinion required to promulgate rules for the procedural implementation of that statute, which would include the designation of a records access officer, as well as an appeals officer. The appeals officer would be the Public Administrator or a person designated to determine appeals by the Public Administrator.
With respect to rights of access, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (i) of the Law. The records that you requested involved those reflective of the "identity of any consultant or consultants and vendor or vendors who provided computer consultation services or equipment to the Office of the Public Administrator, County of New York in the years 1989 through 1993." In my opinion, insofar as the records sought are maintained by the Office of Public Administrator and can be found, they would be available. In short, none of the grounds for denial could properly be asserted to withhold the kinds of records that fall within the scope of your request, such as contracts, bills, vouchers, purchase orders and the like.
Moreover, although you may be students or non-residents, those factors are irrelevant to your rights under the Freedom of Information Law as members of the public. When records are available under the Freedom of Information Law, it has been held that they must be made equally available to any person, without regard to status or interest [see M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976)].
Finally, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight
specific, narrowly constructed instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and,if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571(1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
In the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Public Administrator, as well as others. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Sincerely,
Robert J. Freeman
Executive Director
RJF:pb
cc: Ethel J. Griffin, Public Adminstrator
Hon. Renee R. Roth, Surrogate
Steven Gulden, Assistant Corporation Counsel
Clarence Orsland, Assistant Corporation Counsel
Nora Anderson (pictured above) was elected to the position vacated by Renee Roth on December 31, 2008 due to age. Ms. Anderson was suspended WITH PAY by the First Department while she is investigated for fraud.
Angry Lady
"Charlotte Gelfand (chaarlottexx@yahoo.com)
Sent: Mon 7/13/09 10:23 PM
To: tomthetemp@hotmail.com
Dear Tomthetemp,
I think your article on David Gelfand is disgusting. Mr. Gelfand is a respectable lawyer in New York, and most likely one of the highest ranked lawyers in New York as well. You have no idea what this man is like, and your sitting on your computer coming up with these nasty, untruthful accusations and putting them up on the internet. Mr. Gelfand is a very kind, intelligent, funny man, who cares about his partners and fellow employees at Milbank. Get your facts strait before you write another FALSE story.
Yours Truly,
Diane"
Dear Diane,
I apologize if you were offended by last year's David Gelfand posting. Your right, I have no idea what this man is like. While I agree with you that what was written was certainly nasty, I disagree with your assertion that it was in anyway untruthful. The posting merely repeated reporting conducted by Above the Law claiming that Milbank and Mr. Gelfand were less than forthcoming in their disbandment of their staff attorney program. While all this was going down, I merely commented on the fact that I found it curious that Milbank was contemporaneously attending conferences and instructing other organizations on how to best outsource legal services to low-cost, foreign labor centers. Certainly, it can't come as a great surprise that such a story would generate a firestorm of nasty comments on a blog populated by former, laid off staff and contract attorneys. Again, I apologize if any of my readers offended your sensibilities.
TTT
http://temporaryattorney.blogspot.com/2008/04/david-gelfand-worst-person-of-week.html
Sent: Mon 7/13/09 10:23 PM
To: tomthetemp@hotmail.com
Dear Tomthetemp,
I think your article on David Gelfand is disgusting. Mr. Gelfand is a respectable lawyer in New York, and most likely one of the highest ranked lawyers in New York as well. You have no idea what this man is like, and your sitting on your computer coming up with these nasty, untruthful accusations and putting them up on the internet. Mr. Gelfand is a very kind, intelligent, funny man, who cares about his partners and fellow employees at Milbank. Get your facts strait before you write another FALSE story.
Yours Truly,
Diane"
Dear Diane,
I apologize if you were offended by last year's David Gelfand posting. Your right, I have no idea what this man is like. While I agree with you that what was written was certainly nasty, I disagree with your assertion that it was in anyway untruthful. The posting merely repeated reporting conducted by Above the Law claiming that Milbank and Mr. Gelfand were less than forthcoming in their disbandment of their staff attorney program. While all this was going down, I merely commented on the fact that I found it curious that Milbank was contemporaneously attending conferences and instructing other organizations on how to best outsource legal services to low-cost, foreign labor centers. Certainly, it can't come as a great surprise that such a story would generate a firestorm of nasty comments on a blog populated by former, laid off staff and contract attorneys. Again, I apologize if any of my readers offended your sensibilities.
TTT
http://temporaryattorney.blogspot.com/2008/04/david-gelfand-worst-person-of-week.html
Thứ Hai, 13 tháng 7, 2009
Lady Sara Kim Of Yorkson
Tom,
If you are worried about people committing suicide, I would suggest that you tell them to stay away from Lady Sara Kim of Yorkson. I heard rumors that she was nasty, but I didn't realize how nasty she was until I recently dealt with her myself. Talk about a Jeckyll and Hyde personality. When she needs you for something, she's all sweet and butter. Most of the time, she's extremely condescending, tries to make you feel guilty for not buying into one of her low ball sewer rates, and will literally hang up on you mid-sentence. Either Yorkson has one of the worst techncial telephone service in NYC history, or the Lady of Yorkson is just an extreme B.
Thứ Bảy, 11 tháng 7, 2009
Summer is Officially Here! The BWI (Boating While Intoxicated)
Practicing DWI defense in the Fingerlakes region of New York State, and living in Ithaca allows me the privilege of experiencing some amazing lake views. I love to witness Lake Cayuga go through the glory of all four seasons. Everytime I get in my car to appear in another town court in one of the many counties that surround the lakes I am taken back by the the incredible beauty of this area of the country. But of course, that is why I live and practice here, not by chance but by choice.
Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.
I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI. NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.
My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:
1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.
So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.
Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.
I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI. NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.
My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:
1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.
So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.
Thứ Sáu, 10 tháng 7, 2009
Robert "One-Fifth" The Pay
"Dear XXXXX,
We know you are diligently looking for your next job opportunity and we want to be the best resource for you. However, we are all experiencing the effects of the economy. Many clients are unable to afford the rates they’ve paid in the past. In order to meet their new budget restrictions, I am trying to gauge if you would be willing to work at a rate between $10 and $17 an hour.
Our goal is to keep people working and this is one way to do so. These pay rates are a temporary response to the current economic market. As the market improves, we will look to increase our pay rates accordingly.
If you are open to working for this rate on a short or long term basis, please email me and let me know. I look forward to hearing from you.
Best wishes,
~Kelli"
We know you are diligently looking for your next job opportunity and we want to be the best resource for you. However, we are all experiencing the effects of the economy. Many clients are unable to afford the rates they’ve paid in the past. In order to meet their new budget restrictions, I am trying to gauge if you would be willing to work at a rate between $10 and $17 an hour.
Our goal is to keep people working and this is one way to do so. These pay rates are a temporary response to the current economic market. As the market improves, we will look to increase our pay rates accordingly.
If you are open to working for this rate on a short or long term basis, please email me and let me know. I look forward to hearing from you.
Best wishes,
~Kelli"
Thứ Năm, 9 tháng 7, 2009
Bullshit Time
Since exposing them below on your website Axiom Legal Temp Agency has changed its website from the oleaginous "The Road Less Lawyered" to "Lawyers you Like".
Get ready to throw up, here it comes!
"We know it's ironic.... but one of the radical things that can be said about Axiom is that our clients and attorneys like us. Axiom is an entirely new kind of firm rooted in the belief that everyone benefits when given the ability to exercise self-determination. An approach so simple it's reshaping the legal profession and so powerful it just may make lawyers likable again."
Then it has these bullshit profiles of its supposedly happy likable temps:
"My son's a talker. He's a negotiator. He'll make a great lawyer... I'd like to think he gets that from his dad."
Marc Field
So in reaction to being complained about on the Temporary Attorney blog, where they are one of the top temp sweatshops, they now try to show how "likable" they are and how "happy" the miserable wretches who work for them are.
The pretension of this nothing temp agency knows no bounds, to the point if you wonder that they have brainwashed their toady slaves so much or whether they are actually starting to believe their own bullshit.
Axiom has these Update types calling clients day and night slutting around their temp services.
Say thank you to your temp agency Strategic and DeNovo that you don't have to deal with this kind of mind control and self-worship of Axiom's nonqualified lawyer owners!
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