September 2018 Archives

Welcome to the September 2018 Issue of Electronically In Touch

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We are pleased to submit the September 2018 issue of Electronically In Touch. This issue consists of informative articles on how to appeal an adverse decision on an order to show cause, best practices for impeaching a witness with a prior inconsistent statement, a study of a recent real property tax law case and the appellate division split that it has created, a pro bono spotlight and uplifting story on Alex Fehrman of the Center for Elder Law and Justice, an interview of YLS member Courtney Radick on how she practices, and recommended events for September and October. We hope you enjoy!

Electronically In Touch is a member driven publication. 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 submit articles to Justin Batten at

COLLINS ON CROSS: Impeachment by Prior Inconsistent Statement

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By Rick Collins, Esq.

You're in the middle of trial and a witness for the opposing party says something on direct examination that's unfavorable to your case. But wait - you have evidence that she said something different on an earlier occasion, and it's contained in an official report, sworn statement, deposition or similar document. The document is right in front of you. What do you do with it on cross-examination?

Impeaching a witness through a prior inconsistent statement can be a devastatingly effective moment of high drama in the courtroom ... if done correctly. What is the most effective way to cross-examine a witness on a prior inconsistent statement? There are a few different variations to establish the foundation. I like to use this four-step process (acronym: CRAC):

  1. Commit the witness to her version on direct examination
  2. Rebut this version with the substance of the earlier statement
  3. Accredit the reliability of the earlier statement
  4. Confront her verbally with the earlier statement

Let's go into the four steps in more detail. We will use a simple hypothetical. You represent one party in a car accident. A witness for the other party has just said on direct examination that the light was red for your client. However, in a signed statement the day after the accident she said the light was green for your client. Your goal is to impeach her credibility with the earlier statement.


Q: "You just told this jury a few minutes ago that the light for my client was red, right?" A: "Yes."

This step requires only a single question. Keep it short and parallel the exact words of the direct testimony to minimize evasion and ensure a simple affirmative response.


Q: "In fact, isn't it true that the light for my client was green?" A: "No, it was red."

Another single question, explicitly contradicting her direct testimony. Make sure you repeat exactly what she said in the earlier document that is inconsistent. It should be a short, simple question, not a compound question with multiple components. After just committing to the opposite state of facts, her response pretty much has to be a negative answer.


Q: "You gave a statement to an investigator the day after the accident, didn't you?" (Answers to all the questions that follow will be yes.)

"He came to your house, did he?"

"He knocked on the door, right?"

"You let him in?"

"He told you why he was there, correct?"

"He told you he wanted to know about the accident?"

"You agreed to tell him, yes?"

"You wanted to be honest about it, of course?"

"You wanted to be accurate about it, yes?"

"While you were talking he was writing, yes?"

"Then he handed the piece of paper to you?"

"You read it, didn't you?"

"He asked if it was accurate, yes?"

"You told him it was?"

"You signed the statement, right?"

"You signed the statement because it was accurate, correct?"

This is the only step requiring multiple questions. The exact questions, and the number of questions, will depend on the type of document containing the prior inconsistent statement and the circumstances under which it was made. The general idea is to build up the credibility of the prior statement. Questions that show that the witness wanted to be truthful and accurate, took the time to read the document, signed it, etc., all help to bolster its credibility. In most cases, the statement will have been made at a time much closer to the events in question when it was fresher in the witness's memory. The goal of this step is to convince the trier of fact that the witness was unlikely to have been mistaken or untruthful in that document.


Q: "And in [that document] you signed, you said the light for my client was green, didn't you?"

This step requires a single question. At this point you will likely get a yes answer (especially if you have one hand holding the corner of a piece of paper which she likely knows says what you say it does). If the witness says yes, sit down. You've won! You have impeached the witness. If the witness says no, or if the witness says she doesn't remember, you may want to take the paper in both hands and ask slowly, deliberately, "Didn't you say the light for my client was green?" At this point you've got the witness skewered on a spear. If she is smart, she will admit the inconsistency rather than be embarrassed with the physical document itself. That's when you say no further questions and sit down. You have won. You have impeached the witness.

If the witness continues to play games by saying she doesn't remember or if she denies making the statement, it is then - and only then - that you need to show her the document itself. It shouldn't come to that. Producing the document, having it marked and showing it to her is a last resort. Think of it as something you don't want to do unless you absolutely have to. Too many young lawyers seem to want to have the document marked and show it to the witness before even starting the foundation. You should not be showing the document unless and until you've completed all four steps and the witness is refusing to admit the inconsistent content of the document.

If you follow this four-step CRAC process you will handle most prior inconsistent statements (and even omissions in prior statements). With minor adaptations you can use it for all types of past statements. Should you ever have specific questions about cross-examination techniques, feel free to call upon me or the lawyers in my firm. We are experienced trial lawyers and have helped many lawyers learn the finer points of trial practice. If you want to be a better trial lawyer, I highly recommend taking a trial advocacy course such as the Young Lawyers Section Trial Academy offered through the New York State Bar Association every March at Cornell Law School in Ithaca, New York. I serve as faculty and present the annual lecture on "Opening Statements in a Criminal Case." I'd love to help you become a better trial lawyer. The upcoming academy is set for April 3 through April 7, 2019, so save the date and I'll see you there! Meanwhile, good luck in court!

Rick Collins is a principal in the law firm of Collins Gann McCloskey & Barry (, with main offices on Long Island. He is a former prosecutor in the Office of the Nassau County District Attorney and has been practicing criminal defense since 1990. He has served as a faculty member in dozens of trial practice courses. Currently the President-Elect of the Nassau County Bar Association, he also sits on the Executive Committee of the New York State Bar Association Criminal Justice Section and is Co-Chair of its Sealing Committee. He is internationally recognized as a legal authority on performance-enhancing drugs and substances, and has a nationwide practice focusing on the strength, health and sports communities. He received his undergraduate degree from Hofstra University, Hempstead, NY, and his law degree from Hofstra School of Law, where he attended on a full academic scholarship and served on the Law Review. He is admitted to practice in New York, Massachusetts, Pennsylvania, Texas, the District of Columbia, and numerous federal courts. He can be reached at 516-294-0300.

By: Dylan C. Harris

Each May, attorneys across the State of New York follow Real Property Tax Law ("RPTL") Article 5 real property tax grievance procedures without pause. Most consider the filing nothing more than an administrative step that must be taken before filing an RPTL Article 7 Petition in July. That was before the Appellate Division, Second Department handed down its decision in Matter of Larchmont Pancake House v. Board of Assessors, 153 A.D.3d 521 (2d Dep't 2017). The Larchmont decision has caused an enormous shift in practitioners' focus from the Article 7 petition to the Article 5 grievance complaint. To fully understand the decision's impact, we must examine Larchmont and contrast it with case law from the other departments. The Larchmont decision has created a split amongst the appellate departments that can only be resolved by a Court of Appeals determination.1

RPTL Article 5 provides the required administrative review procedure for all real property tax assessment challenges, including specific grievance complaint requirements that must be followed. RPTL 504(3) mandates that statements in a grievance complaint must be

made by a person whose property is assessed, or by some person authorized in writing by the complainant or his officer or agent to make such statement who has knowledge of the facts stated herein.

RPTL 504(3)'s language is the specific area from which the Larchmont decision varies with other departments.

In Larchmont, a lessee of the subject property brought both the Article 5 grievance complaint and the Article 7 tax certiorari petition. The lessee paid all operating costs for the property, including property taxes.2 The respondent municipality moved to dismiss the proceeding for lack of subject matter jurisdiction and standing under Article 7, arguing the lessee was not an aggrieved party.3 The Westchester County Supreme Court denied the motion; however, the Appellate Division, Second Department reversed holding that "the court lacked subject matter jurisdiction to review the assessments, as the petitioner failed to satisfy a condition precedent to filing of the petitions pursuant to RPTL article 7."4 The condition precedent that the petitioner failed to meet was the requirement under Article 5 that the property owner file the complaint or grievance to obtain administrative review of the assessment.5 Ultimately, the Second Department applied a strict application where the owner of a property must file the grievance complaint - even where Article 7 standing may exist due to a clear adverse effect to the petitioner's pecuniary interest. 6 The question now becomes, how have the other Appellate Divisions resolved this issue?

The Third Department adopts a "broad and practical review" of Article 5 grievance complaint procedure. 7 This review allows for amendments where the administrative and judicial proceedings clearly identify the real property by tax map section, block, and lot numbers. 8 For example, Divi Hotels Mktg. Inc. v. Board of Assessors involved an appeal from the dismissal of an Article 7 petition, for lack of standing, brought by a parent corporation on behalf of the subsidiary owner, with the owner's authorization.9 The Third Department reversed holding that the parent corporation, with authority from its subsidiary (the property owner) to bring the proceeding, had standing under both RPTL Articles 5 and 7.10 Here, the Third Department took a "broad and practical review" and accounted for potential prejudice in holding that failure of the owner to bring the Article 5 complaint and Article 7 proceeding was not fatal.11

The rule enunciated in Divi Hotels is controlling in the Third Department. The Second Department's decision in Larchmont is the polar opposite. While one Appellate Division maintains a strict approach where an owner must bring the grievance complaint and proceeding, the other takes a practical view and allows for a broader review of both the right for a party to file a grievance complaint and petition.

The Fourth Department follows the Third Department in its approach to Article 5 standing as evidenced by Raer Corp. v. Vil. Bd. Of Trustees of Vil. Of Clifton Springs, 78 A.D.2d 989 (4th Dep't 1980). Like the Third Department, the Fourth Department has regularly held that as long as the grievance complaint was timely, the jurisdictional precursor to an Article 7 petition has been met. According to the Fourth Department, all other requirements are procedural and may be amended.12

The Fourth Department has further ruled that once a board of assessment review decides an Article 5 grievance complaint on the merits, the failure to dismiss the complaint for procedural errors, such as a non-owner bringing the grievance complaint, causes a waiver of any procedural error claims.13

Moreover, the Fourth Department has applied the Court of Appeals' decision in Waldbaum, Inc. v. Fin. Adm'r of City of New York, where petitioner was a fractional lessee, by holding that if a lessee is obligated to pay taxes and has the right to challenge an assessment under a lease agreement, then a "requisite unitary property interest" exists and the petitioner has standing to bring an Article 7 proceeding.14 The Third Department has also applied this rule. For example, the Third Department has held that where a lessee had a contractual right to file grievance complaints and bring a proceeding under a lease agreement, the lessee has standing to bring an Article 7 proceeding.15 Here, both the Third and Fourth Departments provide for standing where the Second Department, applying Larchmont, would find no standing to bring an Article 7 due to failure of the owner to bring the Article 5 grievance complaint.

Ultimately, the above demonstrates a distinct split amongst three of the four appellate divisions. While each department's analysis has merit in understanding the relationship between Article 5 grievance procedure and Article 7 tax certiorari procedure, we will only have a resolution of this split when the Court of Appeals makes its determination on the issue by ruling on the Larchmont case.

Dylan was admitted to practice law in New York State in January 2015. As a Syracuse University College of Law alumni, Dylan moved to the Hudson Valley where he is an associate attorney at Lewis & Greer, P.C. His primary focuses are tax certiorari, municipal law, corporate law, and estate planning. While not practicing law, Dylan is heavily involved with the Floyd Patterson Boxing Club in Highland, New York and the Italian Center in Poughkeepsie, New York.

1. In May 2018, leave to appeal to the Court of Appeals was granted and a briefing schedule has been set.
2. Larchmont, 153 A.D.3d at 522.
3. Id.
4. Id.
5. Id.
6. Id.
7. Divi Hotels Mktg. Inc. v. Bd. Of Assessors of County of Tompkins, 207 A.D.2d 580, 581-82 (3d Dep't 1994).
8. Id. at 581.
9. Id.
10. Id.
11. Id.
12. Raer Corp., 78 A.D.2d at 989.
13. Id.; see Skuse v. Town of S. Bristol, 99 A.D.2d 670 (4th Dep't 1984).
14. Ames Dep't Store Inc., No. 418 v. Assessor, Bd. Of Assessors, 261 A.D.2d 835, 835 (4th Dep't 1999) (citing Waldbaum, 74 N.Y.2d at 134).
15. Matter of Big "V" Supermarkets, Store #217 v. Assessor of Town of E. Greenbush, 114 AD2d 726, 727 (3d Dep't 1985) (cited by Matter of Steel Los III/Goya Foods Inc. v. Board of Assessors of County of Nassau, 10 N.Y.3d 445 (2008)).

Pro Bono Experiences: A Pathway to the Profession

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By Alex Fehrman, Esq.

The day after the Bar exam is strange to anyone who experiences it. It is truly a mixture of emotions: this day yields relief, exhaustion, and the anxiety of waiting several months for results on an exam that dictates your future. Talk about pressure and patience (which I learned, is a virtue). For future attorneys who do not have a job lined up, that day fosters an additional series of questions. Many candidates wait for Bar results, pass, and then try to get a job. Others get whatever job they can because the grace period on student loans runs out quickly and no amount of wishing will get you out of that obligation. Many others during these anxiety-filled months of waiting fail to see the opportunity and benefits of gaining additional, pro bono legal experience.


In early September after taking the Bar exam I began searching for legal opportunities to gain experience while simultaneously looking for a permanent position at a firm or other business. I knew I needed real world experience, specifically experience in effectively representing clients. I eventually found the Center for Elder Law and Justice (CELJ) and learned about their robust program for law students and new attorneys looking to volunteer. I thought to myself, "Well I guess I'm not a law student anymore but I can still be hip with the youth!" and sent an email to the pro bono coordinator. Before I knew it I was placed as unpaid, law graduate volunteer in CELJ's Elder Abuse Unit.

During my time as a volunteer I learned about the parts of being an attorney they don't teach in law school. While I took classes on contracts and property, there was no "How to Talk to a Client in a Difficult Emotional State 101", or how to prepare a client for court. While at CELJ, I made it my goal to do the best job I could and to learn as much as I could in the process. I must have done well in that role because several months later CELJ's CEO asked if I wanted to fill an opening in the Foreclosure Prevention Project, assisting an attorney until I was admitted to practice. When I started as a volunteer I never thought I would be hired full-time, but now I'm working as a staff attorney at CELJ in the Foreclosure Prevention Project.

My advice to law graduates and new attorneys is to take time to get any experience you can. You never know how that time will benefit you, or what might come of it. While you may not get a full-time job out of volunteering or performing pro bono, it will provide invaluable insight on how to practice and what type of attorney you want to be. You may just find that your two days per week of pro bono work paved your way into the legal profession and gave you opportunities you never would have considered otherwise.

By: James Ng, Esq.

It seems the first word that enters the mind of a litigant when faced with an adverse decision on a motion is: "appeal!" But what happens when you are not allowed to appeal? Under CPLR 5704(a)(2), Supreme Court's refusal to grant an ex parte order, such as an order to show cause, is not appealable as of right. Matter of Mele v. Rockland County Bd. of Elections, 108 A.D.3d 633 (2d Dep't 2013).

One solution would be to seek an appealable order. The party seeking an order to show cause might bring the application to Supreme Court again, but styled as a motion on notice. In the event the motion on notice is denied, the aggrieved party will then have an order that is appealable. However, this course may be problematic in ex parte situations where there is no adversary, or Supreme Court is reluctant to issue a timely denial.

The better route is to seek direct review of the refusal to sign the order to show cause by way of a little known application under CPLR 5704(a). This provision for "[r]eview of ex parte orders" specifies:

The appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or judge thereof from which an appeal would lie to such appellate division; and the appellate division may grant any order or provisional remedy applied from without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division.

CPLR 5704(a).

This provision provides the statutory grounds by which a party may challenge the refusal to sign an order to show cause through a motion to the Appellate Division. It is worth noting that this application "must be made to the whole court, not an individual justice," and it is typically proper to bring the application without notice to the opposing side. Richard Reilly, Civil Practice Law and Rule 5704, Practice Commentaries C5704:1 (McKinney's 2018).

In the event that a motion under CPLR 5704(a) is successful, the relief afforded is to permit the applicant to proceed with the order to show cause in the lower court. The Appellate Division can remit the matter to Supreme Court for issuance of the order to show cause. See Matter of Burns v. LeFevre, 114 A.D.2d 530 (3d Dep't 1985); Martin Operating Corp. v. Hertzan, 106 A.D.2d 784, 784-785 (3d Dep't 1984). Alternatively, there is precedent for the Appellate Division to sign an order to show cause that is made returnable in the lower court. Leung v. Kyu Sushi, Inc., 15 Misc.3d 141(A) (App. Term 2007) (stating the Appellate Term reviewed and signed an order to show cause that was returnable to the Civil Court under the companion provision of CPLR 5704(b)). Nevertheless, in the event that a party makes the error of seeking to appeal the refusal to sign an order to show cause, the Appellate Division has at times been willing to exercise its discretion and treat the procedurally defective appeal as a CPLR 5704(a) application. Matter of Porter v. Senkowski, 263 A.D.2d 708, 709 (3d Dep't 1999); Matter of King v. Gregorie, 90 A.D.2d 922, 923 (3d Dep't 1982).

James Ng is an associate at O'Brien LLP where his practice focuses on complex commercial disputes and related negotiations and investigations. He received his J.D. from the Benjamin N. Cardozo School of Law and a LL.M. from the New York University School of Law.

How I Practice - Courtney Radick

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By: Brandon Vogel

Courtney Radick
Oswego, NY

1. What are your areas of practice?

I am a general practitioner, but my practice currently focuses on Workers' Compensation, Matrimonial and Family Law, Criminal Defense, Personal Injury, and Criminal and Civil appeals.

2. Describe a typical day for you.

No day is the same, which is something I love about my practice. I will either start my day in the office or go straight to court from home, depending on when and where I need to be. On any given day I could be meeting with clients and/or attending hearings. On certain nights of the week I participate in my bowling league (although I do get in trouble for answering work e-mails between frames).

3. Where do you practice? Do you have a stand-alone office or home office?

I practice in an office, which was an old home and converted in the 1960s. We saved the spiral staircase, which children love to run up and down.

4. What is the most rewarding thing about having your own practice?

The freedom to adapt to the needs of the day. If I need to leave early for a personal matter, I can adjust my schedule. If there is a blizzard/lake-effect snow event in the forecast, we can accommodate the needs of our staff. If it is a special occasion, the whole office can make time to have lunch together.

5. What are some of the challenges about having your own practice?
Being in a small firm, we are all very busy. Sometimes our schedules require us to be in two (or more!) places at the same time and being able to cover for one another can sometimes pose a calendaring problem.

6. What are your must-have tech tools/apps?

I am not very technological, but my iPhone is crucial to my everyday practice. I still maintain a hard calendar, but when I am away from the office I need to be able to check emails, text and call clients and my staff, as well as look up information on the internet. A good and reliable copier and printer are obviously key. Lately, I have found a lot of value in our scanner, as it allows me to e-file many documents, as well as email clients and the other attorneys in a more efficient and timely manner.

7. How do you market your practice? How do you find new clients?

In our local community, we primarily rely on word of mouth referrals. We do advertise in the local business magazine and other small periodicals. We have a Facebook page and several members of the firm have various social media profiles.

8. When and where do you interact with other attorneys?

Mostly at the various courthouses between cases. Of course I go to NYSBA events and local Bar events.

9. How do you stay informed with legal news/developments?

Reading the NYSBA Bar Journal, attending CLEs (even when I don't need the credit), social media updates, emails with the latest case law updates, and being involved in various sections that have active online communities.

10. If a fellow attorney decided they wanted to start their own practice, what is the one thing they should know?

If you do not already have a reputation established in your community, it may take some time for your practice to get up and running and be successful (i.e., for money to start coming in). However, if you are dedicated to making a name for yourself and are dedicated to your practice and clients, you will see the rewards of your efforts.

Recommended Events

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We recommend the following exciting and educational events sponsored by the New York State Bar Association.

September 21, 2018
CLE Program at Yankee Stadium - The topic of the CLE is how To Use Computer Based Checklists and Tasks in your Practice. This is a 1 credit CLE.
Cost: Tickets are $550 for members.
Time: 6:00 pm to 6:50 pm followed by the game viewed from a luxury box.

Register at:

October 1, 2018
Meet The Judges Of The Court Of Appeals - This event takes place in New York City. It is designed for appellate attorneys and those who want to learn more about the appellate process.
Cost: This event is $50 for members and $100 for non members
Time: 3:30 pm to 6:30 pm a networking reception is included.

Register at:

October 4, 2018
Beyond The Basics Of Blockchain - This CLE takes place in Washington DC. It is a 2 credit CLE. It is a two part CLE addressing the current state of blockchain technology and how use and regulation of the technology may progress.
Cost: This event is $15 for members and $50 for non members.
Time: 3:30 pm to 6:00 pm a networking reception is included.

October 19, 2018
What Makes Lawyers Happy - This event takes place in Bath, New York and is co-sponsored by the Steuben County Bar Association. It provides 1 Ethics Credit
Cost: Free for Members and Non Members
Time 11:30 am to 1:00pm

Register at:

A full list of all New York State Bar Association Events can be found at
*The full event description and details are located on the NYSBA Events page.

Brand New Members of the Young Lawyers Section

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Please join me in welcoming the following new members to the Young Lawyers Section!

Yijing Chen, Esq.

Louis Cholden-Brown

Marasan Festoff

Benjamin Frederick Heidlage, Esq.

Naama Hod, Esq.

Allessandra Rose Johnson, Esq.

Kristen Motola

Sarah M. Murphy

Jessica Nadine Penkoff

Bridget Stauder Stubblefield, Esq.

Nagashree Gajanan Bhat, Esq.

James Foster Wright

Ryan M. Bergman

Amelia Carol Christian, Esq.

Bryan Richard Forbes, Esq.

Jeffrey B. Same

Christina R. Christoforo, Esq.

Samuel G. Dobre, Esq.

Alexandra Genoa

Susanna E. Laruccia, Esq.

Kathleen Meara, Esq.

Arielle Ana Montoro , Esq.

Veronica M. Rundle, Esq.

Abdulelh A. Aloubal

Suzanne Marie Bradley, Esq.

Gianni A. Corleone, Esq.

Craig R. Durham, Esq.

Daniel Alan Gimbel, Esq.

Susan Yexley Jennen, Esq.

Alexandra Mazgareanu, Esq.

Danielle Rosen, Esq.

Khahilia Y. Shaw, Esq.

Christina Egan Shvartsman, Esq.

Linzhi Wang

Jessica Lorraine Zajac, Esq.

Marie C.B. Zdrodowski, Esq.

Total New Members: 37

Thanks to everyone for making this a great Section!

Join The Young Lawyers Section

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Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.


Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at and indicate the committees you wish to join. The Young Lawyers Section has the following committees:

  • Executive Committee
  • Communications Committee
  • Community Service and Pro Bono Committee
  • Diversity Committee
  • Law Student Development Committee
  • Long-Range Planning Committee
  • Membership Committee
  • Mentoring Committee
  • Nominating Committee
  • Perspective Editorial Board


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The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not necessarily represent the thoughts and opinions of the authors' employers or clients, the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

About this Archive

This page is an archive of entries from September 2018 listed from newest to oldest.

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