August 2013 Archives


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August 2013

Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes a message from our section chair and upcoming events. We then have an employment law article by Brett Joshpe and a trust article by Roman Aminov.

Electronically-In-Touch is a member driven publication and as such we welcome submissions from members on any relevant topic including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please keep your articles coming by submitting them by the 20th of each month to Erin Flynn at or Brian Doyle at

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Erin K. Flynn, Esq.
Editor, Electronically-In-Touch

Brian M. Doyle, Esq.
Editor, Electronically-In-Touch

Chair's Message

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Welcome to the August edition of Electronically In-Touch. We are less than one week away from celebrating our 75th anniversary! We will be spending the day at CitiField. First, we will enjoy a CLE program, then lunch (beer and soda included), a private tour of CitiField and a Mets game. Please see below for further details. We hope that you will join us to celebrate this milestone!

Although we are not looking forward to summer coming to an end, we are excited about the programs and events that are ahead of us. Next month, we will have our fall program. We will start the program with our Executive Committee meeting in New York City on September 30th with a dinner to follow. Details are also included below. We are then co-sponsoring the NYSBA CLE Department's Bridge the Gap program, which is being held on October 1st and 2nd.

Several of our districts will be planning their annual holiday gatherings shortly thereafter. Keep a look out for further details.

In the meantime, we hope to see everyone at CitiField in a few days!

Lisa R. Schoenfeld, Esq.
Section Chair
Schlissel Ostrow Karabatos, PLLC

YLS 75th Anniversary

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Staying young while getting old!
Young Lawyers Section
Celebrating 75 years!

Saturday, August 24, 2013

12:30 p.m. Baseball and the Rule of Law: How Our Two National Sports Intersect CLE Program
Café Roma, Caesar's Club, Mets CitiField
(1.5 NY CLE credits)

1:45 p.m. Lunch and Refreshments (to include beer and soda)
3:00 p.m. Guided Tour of CitiField
4:00 p.m. Game Time! Mets v. Detroit

Please join the Young Lawyers Section as they celebrate staying young while growing old at a CLE program and baseball with the New York Mets.

CLE program - $75 per person
Lunch, beer and soda, commemorative t-shirt, guided tour and ticket to the Mets v. Detroit baseball game - $100 per adult, $50 per child

Please contact Tiffany Bardwell at for more information.

View the flyer and registration form and then sign up at!

YLS would like to thank the following sponsors for their support:

Antitrust Law Section
Family Law Section
Real Property Law Section
Tax Section
Commercial and Federal Litigation Section
Elder Law Section
Intellectual Property Section
Torts, Insurance and Compensation Law Section

YLS Fall Meeting

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YLS Executive Committee Meeting
Monday, September 30, 2013
3:00 p.m. - 5:00 p.m.
Alston & Bird LLP, 90 Park Avenue, 15th floor, New York, NY 10016

All YLS members are encouraged and welcome to attend. After the meeting, you are invited to attend a dinner for the committee at Virgil's 152 West 44th Street
(Between Broadway and 6th Avenue), New York, NY 10036. The cost for the dinner is $50 per person. Please register on the NYSBA website at

Events of Interest

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LIT Networking Breakfast | Mastering the Elevator Speech
Wednesday, September 11, 2013

- Location -
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
150 East 42nd Street
New York, NY
8:30 a.m. - 10:00 a.m.

Lawyers in Transition - Breakfast Series
Featuring: Carol Schiro Greenwald, Ph.D., Consultant, MarketingPartners

The last day to pre-register online is September 10, 2013. Register online now

Mock Interviewing Panel | Lawyers in Transition | Free Webcast & Live Program
Friday, September 20, 2013

- Location -
Syracuse University College of Law
104 McNaughton Hall
Syracuse, NY 13244

Mock Interviewing Panel - Laweyers in Transition - Live & Webcast
12:00 p.m. to 2:00 p.m.

The last day to pre-register online is September 20, 2013. Register online now

Building Your Personal Brand | Lawyers in Transition | Free Webcast & Live Program
Wednesday, October 9, 2013

- Location -
Anchin Block & Anchin LLP
1375 Broadway
New York, NY

Lawyers in Transition - Building Your Personal Brand
Program Faculty:
Marcia Nelson, Practice Growth Manager, Anchin, Block & Anchin, LLP
Ann Collier, MPP, JD, Founder, Arudia
Julia Bonem, Career Change for Good
9:00 a.m. - 11:00 a.m.

The last day to pre-register online is October 8, 2013. Register online now

LIT Breakfast Networking Best Practices
Thursday, October 10, 2013

- Location -
Bar Association of Erie County
438 Main Street
Sixth Floor
Buffalo, NY

Lawyers in Transition - Breakfast Series
Featuring: Vincent E. Doyle, III, Esq., Connors & Vilardo, LLP

The last day to pre-register online is October 10, 2013. Register online now

Employment Law

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Ball Decision Changes Employment Law, But Maybe Not as Much as Thought
By: Brett Joshpe

In another controversial late term decision, the Supreme Court defined in Vance v. Ball State University who constitutes a "supervisor" pursuant to Title VII of the 1964 Civil Rights Act, holding that they must have the power to take "tangible employment action" against a victim. The decision resolved a circuit split in favor of jurisdictions that took a narrower interpretation of the term. The Second Circuit and the Equal Employment Opportunity Commission (EEOC), on the other hand, favored a more holistic approach that examined whether a fellow employee exercised direction over another. While the decision may come as a relief to employers, it probably does not change the employment discrimination landscape as much as some assume.

The Court's decision, written by Justice Alito, breaks down Title VII's cases into those involving supervisors and non-supervisors, or simply co-workers. Under principals of agency law, the Court explained that employers are only vicariously liable for harassment in situations where a supervisor has engaged in the unlawful behavior. But those cases must then be broken down further into situations when there is tangible employment action versus those when there is a "hostile work environment."

When a supervisor's harassment results in a tangible employment action (i.e. demotion, firing, loss of pay), then the employer is strictly liable for the supervisor's actions if they were based on the victim's protected status of race, sex, religion, national origin, or other protected status. However, in instances when no tangible action occurs (which is often times the case), employers can avail themselves of affirmative defenses against Title VII claims. The employer must show that it exercised reasonable care to prevent and correct any harassing behavior and that the plaintiff unreasonably failed to avail themselves of those remedial measures provided by the employer.

In that second category of cases (hostile environment but no tangible employment action), the Court's Ball decision probably does little to change the calculus for future discrimination litigants. The notion of a "hostile work environment" was established in one of the leading discrimination cases, Rogers v. EEOC. Regardless of whether the victim's harasser was a supervisor or a co-worker, the parties are essentially still left to litigate the same question: was the employer negligent in creating a hostile environment and not rectifying it? In cases in which tangible action is taken, the facts by definition involve a supervisor since the ability to take tangible employment action is the sine qua non of such status.

In all other instances, however, the ultimate question of liability typically revolves around negligence and questions of reasonableness. In that sense, whether or not there is a supervisor involved, the Ball case may not change employment litigation much in practice.

Moreover, as practitioners are well aware, litigants in a discrimination case often settle well before a case plays out in court and often before the EEOC even grants a prerequisite "right to sue" letter. For plaintiffs, the stakes of litigation are high, and many employers are diligent and careful enough to establish procedures and policies that will bear directly on the question of reasonableness. On the other hand, employers often realize that it is not the size of a judgment they fear, but the process and attendant publicity sometimes associated with these types of cases. Particularly in that sense, the Supreme Court's latest decision is somewhat academic.

Brett Joshpe is an attorney and author in New York City. He is principal of Joshpe Law Group LLP.


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Medicaid Home Care While Preserving Income: Pooled Income Trusts
By: Roman Aminov

As practitioners in a country whose population is quickly aging, it is not uncommon to encounter clients who may be in need of assistance with their daily activities. However, many New York City residents who are in need of community Medicaid services such as home care, adult day care, or prescription drugs find that they exceed New York Medicaid's income allowance, of $800 a month (plus a $20 personal needs allowance) in 2013. Many seniors receive social security, pension, and investment income which easily surpass this meager allowance and disqualify them from receiving much needed health services. Although Medicaid does give an otherwise qualified person the option to "spend down" their income by paying the difference to their health care providers and still receiving benefits; that option leaves a single person with only $820 to pay for rent, groceries, clothing, and other essential expenses. The amount for married couples, $1175 (plus $40) is even stingier. Who among us, especially in New York City, can afford to live on $820 a month? The solution for many of your clients, regardless of whether they are under 65 or over, is the use of Pooled Income Trusts, which are unique trusts permissible under both New York and Federal Law.

Let us take an example to illustrate how a pooled income trust works: Harry is a single 72 year old man living in Flushing, Queens, who recently suffered a stroke and needs assistance with his basic daily activities. He currently receives $1100 a month from Social Security, $500 a month from his pension plan, and $400 a month from an annuity for a total of $2000 a month. His basic living expenses are $1800 a month. If Harry applied for Medicaid to assist him with home care, he would be allowed to keep $820, and the rest would need to be spent on his home health care service. Medicaid would then pay the difference. In effect, there would be no way for Harry to maintain his current lifestyle. There is another option which many Medicaid recipients are using to help them maintain their lifestyles while receiving the care they so desperately need.

If Harry is determined by Medicaid to be disabled, or if he was already classified by Social Security as being disabled, he would be eligible to participate in a pooled income trust. Pooled income trusts are administered by not for profit organizations, such as the United Jewish Appeal or NYSARC. Instead of having to pay his health care bills until he only has $820 left each month, Harry would send his "excess" income to the non-profit instead of his health care provider. The non-profit would then be able to pay for any services not covered by Medicaid including rent, mortgage payments, clothes, recreational activities, etc. Harry would simply send the bills to the organization which would use the "excess" income to pay the bills on his behalf. The assets in the Harry's trust carry over from month to month, but any money which is left after Harry passes away belongs to the non-profit organization to continue their charitable work. There are fees associated with setting up and continuously managing pooled income trusts, but they pale in comparison to the amount which a client can save. In addition, if Harry was disqualified from Medicaid because he had assets over the allowable limit of $14,400 in 2013, he would be able to transfer the excess in the pooled trust as well.

Pooled income trusts have certain drawbacks, although not nearly enough to avoid them in most cases. In addition to the initial setup and monthly fees, any assets which are transferred by an individual over the age of 65 will be subject to a five year look back period for institutional Medicaid services such as nursing home coverage. Secondly, Harry will not be able to directly withdraw the money from his trust; instead, he must submit his bills to be paid by the trust. Additionally, if Harry does not fully use his excess funds, they will be turned over to the non-profit organization when he passes away, and his heirs will not inherit them.

It is always recommended that a potential applicant, especially one with income over $820, consult an attorney familiar with Medicaid and pooled income trusts prior to applying for Medicaid. Working with an attorney can potentially save your client months of waiting for much needed care.

Roman Aminov is a trusts and estates attorney concentrating in estate planning, elder law, and probate. He is experienced in the drafting of wills, powers of attorney, health care proxies, and trusts of all types. Contact Roman Aminov at (347)766-2685 or

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